Washington, D.C. – House Judiciary Committee Chairman Bob Goodlatte (R-Va.) today delivered the following statement during the Committee’s markup of the Injunctive Authority Clarification Act of 2018 (H.R.6730). This bill, introduced by Chairman Goodlatte, restores the traditional understanding that a federal court’s injunctive power extends only to the protection of the parties before it.

Chairman Goodlatte: The Injunctive Authority Clarification Act arrests a disturbing trend of judicial overreach that has frustrated Administrations of both parties.

Federal judges are increasingly issuing injunctions that block enforcement of a challenged federal policy against anyone, not just the plaintiffs.  These national injunctions are a “recent and controversial” phenomenon that for most of U.S. history did not exist.

No statute or procedural rule permits courts to issue national injunctions.  In fact, the traditional view of the law was that courts had no authority to issue them.

For example, in Frothingham v. Mellon, decided in 1923, the Supreme Court refused to grant a national injunction, because a court’s power is limited to “declaring the law applicable to the controversy.”

To go beyond that, the Court explained, “would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.”

This traditional view began to erode in the 1960s.  Still, national injunctions remained rare until 2015 when conservative attorneys general used them to block major Obama Administration policy actions on labor, immigration, and other issues.  Now, with the tables turned, the Trump Administration has faced over 22 such injunctions.

There are clear signs that judges were never meant to issue national injunctions.

First, their validity seems entirely refuted by the existence of class action procedures.  Federal Rule of Civil Procedure 23(b)(2) makes available a class-wide injunctive remedy if certain conditions are met, meant to ensure effective representation and fairness to everyone in the class.  There would be no need for this procedure if plaintiffs could get the same group remedy via a national injunction.  In fact, these injunctions are an end-run around Rule 23, providing the benefits of class certification without the corresponding procedural protections.

Second, federal district court decisions are not even binding on judges in the same district.  It is illogical to suppose that a single judge has authority to decide a question for the whole country when that judge’s decisions are not even binding on other courts in the same district.

Third, national injunctions could conflict with each other, which would be catastrophic to the system.  This problem was only narrowly avoided recently, when a Texas judge refused a request from the State of Texas to issue a conflicting injunction on the restart of DACA.

But perhaps most compellingly, it simply cannot be the law that opponents of government action can seek a preliminary injunction and lose in 93 of the 94 judicial districts, win one injunction in the 94th, and via that one injunction obtain a nationwide stay of government action that was upheld everywhere else.

The Injunctive Authority Clarification Act corrects this absurd situation by restoring the traditional understanding that a federal court’s injunctive power extends only to the protection of the parties before it.  Importantly, the bill does not disturb longstanding exceptions to that principle explicitly recognized in the Federal Rules of Civil Procedure, most notably class action lawsuits.

Proponents of national injunctions argue that these injunctions are essential to provide plaintiffs with complete relief in certain cases.  But the examples they offer, such as redistricting, school segregation and consumer protection cases, do not require national injunctions. Class actions are available, and are in fact designed, for such situations.  Indeed, the Committee heard testimony that the class action rule was “promulgated specifically to facilitate civil rights and similar constitutional challenges.”

The Constitution gives courts the authority to decide cases for the parties before them, not to act as super-legislators for everyone across the country based on a single case.

This legislation has the support of a bipartisan group of some of America’s leading legal scholars, who recognize the compelling need for Congress to enact a limit on national injunctions.

I urge my colleagues to heed their call.

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