Washington, D.C. — House Judiciary Committee Chairman Bob Goodlatte (R-Va.) today delivered the following remarks during the Courts, Intellectual Property, and the Internet Subcommittee’s hearing on “The Role and Impact of Nationwide Injunctions by District Courts“.

Chairman Goodlatte: We are here today to explore the propriety of allowing a single district court to issue a nationwide injunction with respect to congressional and executive actions.

With George W. Bush and Donald Trump as President, national injunctions against the administration’s policies tended to be issued by federal district court judges in the Ninth Circuit, including California and Washington State.  When Barack Obama was President, national injunctions against the administration’s policies tended to be issued by federal judges in the Fifth Circuit, including Texas.

This situation poses many problems for us all to consider.

Among them, if a plaintiff brings an individual action seeking a national injunction, and the federal district court upholds the federal policy challenged, then the decision has no effect on other potential plaintiffs.  However, if one federal district court judge invalidates a federal policy and issues a national injunction, the injunction stops the federal policy with respect to everyone, nationwide.  To paraphrase what one law professor has written, “Shop ‘til the federal policy drops.”

Also, when a single federal district court judge issues a national injunction, it would seem to greatly interfere with a more optimal decision-making process within the federal court system, and even affect the Supreme Court’s resolution of the issue.

When a federal district court stops a federal policy everywhere, there might be no opportunity for other federal judges to express their views, leaving the Supreme Court to potentially hear the appeal without the benefit of hearing differing views on the subject — including different analyses of both the law and the facts — among both other federal district court judges and other circuits as well.  It leaves the Supreme Court to decide major questions of federal policy more quickly, with fewer facts, and without the advice of competing views among the lower courts.

National injunctions issued by federal district courts result in a uniform policy, to be sure, but at the cost at least of some of the problems I’ve briefly mentioned.

National uniformity is not a prime imperative in our system of lower federal courts, divided into circuits, a system that broadly tolerates disuniformity in the law pending review by the Supreme Court.  Indeed, the only way to avoid disuniformity in the federal courts would be to have only one.  But that is not our system.

The situation created by the acquiescence to national injunctions does not seem to have prevailed at all in the first century and a half or more of American history.  And when the prospect was raised in the past, it seems to have been decisively rejected during that period.

Congress knows how to concentrate judicial review in a small set of courts, and it has done so on several occasions pursuant to federal legislation enacted by the duly-elected representatives of the people.  Yet the prevailing acquiescence to the issuing of national injunctions by lower courts is not the result of any nationally considered policy, and certainly not one enacted by Congress and signed into law by the President.

So I would conclude with a question to the distinguished panel gathered here today.  Since disuniformity is an inherent part of our federal judicial system, what is the best way to achieve uniformity?  Is it through the current acquiescence with national injunctions where the first court to invalidate a congressional or executive action has its decision applied nationwide, despite the potential of pre-existing, conflicting decisions?  Or is it through either the unanimous opinions of the lower courts — or through the disagreement of the lower courts — preceding an analysis by the Supreme Court?

I thank all of our witnesses for participating in today’s hearing and look forward to hearing your perspectives on this important issue.