Fix the Court has long supported legislative proposals that aim to curb nationwide injunctions.

Since there are a lot of proposals on this out there, we want to put down a marker as to the principles we believe any such legislation should adhere to:

1. Transparency: Lawsuits seeking to stop a law, regulation or policy from going into effect nationally must not hide the ball and must say in the filing that the result they want is a nationwide injunction (or vacatur, as the case may be).

2. Procedural clarity: These lawsuits may, of course, be filed in any district, or division within a district, in the country. That said, once they’re filed, the clerk of the court where they’re filed must randomly assign them to a three-judge panel within the district, similar to what exists for suits challenging congressional boundaries under federal law (28 U.S.C. §2284). Currently, lawsuits for which three-judge district court panels are convened are directly appealable to the Supreme Court (see 28 U.S.C. §1253), and that’d be the case here, too.

3. Timeliness: Lawsuits seeking a nationwide injunction or vacatur should be adjudicated on an expedited basis at both the initial level (district court) and the appellate level (Supreme Court).

4. Fairness: The effective date of the law should be Jan. 21, 2029, or later. GOP-appointed judges issued plenty of injunctions against Obama and Biden policies, and Democratic appointees have issued and will issue injunctions against Trump directives. In order to get buy-in from both parties on this proposal, it would need to go into effect at a future date on which the identity of the President is unknown.

Background on nationwide injunctions:
A single judge located anywhere in the U.S. has the power under current laws and practices to prevent the implementation of an executive order, federal regulation, law or other policy nationwide.

That can be done through a nationwide injunction or an administrative stay (or temporarily through a TRO), and it binds us all — even those of us (i.e., the vast majority of Americans) who are not parties to the litigation that resulted in the injunction.

That is too much power for a single judge to have.

Thanks to single-judge divisions, like those in Texas, or districts whose judges were all appointed by presidents of the same party, like in Western Washington and New Jersey, litigants hoping to stop government policies can file lawsuits in places where they’re all but guaranteed landing before a sympathetic judge.

And as of today, that judge is imbued with the power to stop the law or policy in question in all 50 states.

We’re not here to say who does it more often or more cynically or more successfully. (Both liberal and conservative groups and state AGs seek them, and both liberal and conservative judges grant them.) We’re here to find solutions to the obvious problem of having a single judge dictate policy for all 340 million of us.