Ending National Injunction Abuse in United States District Courts

Legal scholars are unable to pinpoint from which source the federal district courts derived the power to issue nationwide injunctions. Article III of the Constitution simply vests “judicial power” in the United States Supreme Court and as many other lower courts as Congress establishes by law. The Constitution does not define judicial power, but it certainly did not include the power to issue national injunctions, as nothing similar existed in common law at the time. The closest thing to a national injunction found in common law is a “bill of peace,” which bound a party against a group of identifiable, though not necessarily present, third parties with a common claim, such as landlords and their tenants (Frost & Bray, 2018). Judicial power is fundamentally understood as a court’s authority to resolve disputes between the parties before it and afford them equitable relief. It is unclear how that power extends to third parties, let alone to third parties who do not seek and are opposed to the “relief” thrust upon them without consent or representation (Bray, 2017). Such actions are contrary to traditional notions of justice, not to mention common sense.

The Supreme Court is aware of this growing issue. In Trump v. Hawaii (2018), Justice Thomas criticized nationwide injunctions and declared that “[i]f their popularity continues, this Court must address their legality.” For a moment, their popularity decreased: Only 14 national injunctions were dealt against the Biden Administration over the course of his four-year term. Incredibly, however, more national injunctions were issued against the second Trump Administration in just its first two months (Colton, 2025). Federal district court judges have now issued a staggering 79 nationwide injunctions against both Trump administrations—more than half of all national injunctions ever issued. Not only is their popularity rising, but the sheer number of national injunctions seizing the Trump Administration raises undeniable concerns about the partisan abuse of judicial power. Indeed, 92.2 percent of the nationwide injunctions against the first Trump Administration were issued by Democrat-appointed judges, and that trend appears to be continuing into President Trump’s second term.

Justice Gorsuch also weighed in on the matter. In Dept. of Homeland Sec. v. New York, he wrote:

There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide…If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice—possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. What in this gamesmanship and chaos can we be proud of?

(Dept. of Homeland Sec. v. New York, 2020).

Once they have identified a federal action to challenge, it is not difficult for public interest groups to recruit a plaintiff in friendly jurisdictions. Beyond the fundamental unfairness of this sort of forum shopping, these groups seek national injunctions by presenting a single, carefully selected circumstance to be ruled on, then demand universal relief applicable to every person in the country. This intentionally bypasses the typical judicial process in which circuits split over complex issues, thereby providing higher courts with a wider range of perspectives and the opportunity to explore the average impact of the legal issues with which it grapples (Frost & Bray, 2018).

Given the extraordinary number of national injunctions issued against the Trump Administration and justices indicating concern about the practice, it appears likely the Supreme Court will soon rule on the legality of national injunctions. However, it cannot be assumed that the Court will resolve the issue, and it would be a waste of a mandate to allow years of the second Trump Administration to be thwarted by excessive, dubious judicial actions.

Congress Can Act Now to Remove National Injunction Powers from the Lower Courts

Article III makes clear that Congress retains the power to “establish” lower courts (U.S. Const. art. III). Congress has used this power in the past to create, organize, and assign judicial powers (such as appellate review) to the lower courts. It has also stripped lower courts of their powers.

• The Judiciary Act of 1789 established the organization of the U.S. federal court system, a three-part judiciary—made up of district courts, circuit courts, and the Supreme Court. It also outlined the structure and jurisdiction of each branch.
• The Evarts Act of 1891 established nine courts of appeals, one for each judicial circuit at the time. The act created and gave the U.S. courts of appeals jurisdiction over the great majority of appeals from trial court decisions and sharply limited the categories of cases that routinely could be appealed to the Supreme Court of the United States. This was done in an effort to relieve the Supreme Court’s overwhelming caseload by dealing with the dramatic increase in federal appeals filings.
• The Judicial Code of 1911 created a single code encompassing all statutes related to the judiciary and abolished the U.S. circuit courts established by the Judicial Act of 1789, which had become duplicative and ineffective.

In addition to its broad power over the structure and organization of federal courts, Congress has also acted to limit a lower court’s ability to issue injunctive relief. For example, in 29 U.S.C. § 101, Congress prohibits federal courts from issuing injunctions in any case involving or growing out of a labor dispute. It is not the case that Congress, once having “established” a lower court, must then treat it as an independent authority and evolve alongside it. Instead, Congress continues to maintain lower courts, controlling their composition and powers, and, if necessary, can abolish entire branches of the judiciary (aside from the Supreme Court). Congress would be well within its powers to prohibit the use of national injunctions.

In fact, before courts relied on national injunctions, district courts would issue thousands of injunctions for thousands of plaintiffs for the same issue. Samuel L. Bray, professor at Notre Dame Law School, published a study in the Harvard Law Review critiquing the emergence of national injunctions, noting:

After the Supreme Court held various New Deal acts unconstitutional, ‘hell broke loose’ in the lower courts. The precise form that hell took was the grant of ‘injunctions restraining officers of the Federal Government from carrying out acts of Congress.’ How many injunctions were there? Against the enforcement of just one statutory provision, the processing tax in the Agricultural Adjustment Act, there were 1600 injunctions….[e]ven at this point in American constitutional history — a point at which lower courts were famously ‘reckless, partisan, and irresponsible’ in their award of injunctions against the national government — the pattern remained one of plaintiff-protective injunctions.

(Bray, 2017)

To curb—or eliminate—the use of national injunctions in the district court, Congress should pass legislation reaffirming the limitations of judicial authority. Judicial power is a power over parties, and the only relief a court has the authority to grant, therefore, flows from the parties before it. While this may result in burdensome injunctive litigation, our judiciary has managed it for nearly 200 years during moments of enormous change and challenges to federal law without this current iteration of injunctive power.

Legislation Proposal: H.R. 1526, the No Rogue Rulings Act

Introduced by Rep. Darrell Issa (CA-48) on February 24, 2025, and clearing the House Judiciary Committee on March 5, H.R. 1526, the No Rogue Rulings Act, addresses the above concerns about national injunctions by restricting a judge’s ability to grant relief only to the parties before it:

No United States district court shall issue any order providing for injunctive relief, except in the case of such an order that is applicable only to limit the actions of a party to the case before such district court with respect to the party seeking injunctive relief from such district court.

(No Rogue Rulings Act of 2025).

Those who want injunctive relief could file suit for it, and if granted, such relief would not subject non-parties to government restrictions arising from distant, vastly different circumstances than their own. The No Rogue Rulings Act reaffirms the historical understanding that judicial power stems from a court’s ability to resolve disputes between the parties before it; the power to resolve a specific case and controversy does not confer authority over non-parties.

Other Historical Solutions

One of the most common concerns about the use of national injunctions is that they allow a single, unelected judge to wield almost monarchical power, unilaterally seizing the entire federal government on a given issue. Rogue judges have been a concern of Congress for decades. In the past, Congress required certain sensitive legal questions, such as constitutional challenges, to be heard by a three-judge panel. The intent was to raise public confidence in judicial decision-making: If three judges unanimously declared a statute unconstitutional, perhaps the public would not be as concerned about the personal bias of a single judge unilaterally dictating public policy. Three-judge panels still exist today to hear certain cases, such as some voting rights cases, due to the large degree of public scrutiny and partisan concerns about the issue (District court reform, 2024). A three-judge panel established by Congress specifically to hear petitions for national injunctions has been suggested by members of Congress on both sides of the political aisle, including by Rep. Sean Casten (D-IL) and Sen. Ted Cruz (R-TX). (District court reform, 2024; Verdict with Ted Cruz, 2025). Nationwide injunctive power has been championed by both political parties. Congress may prefer allowing that power to exist in a better-regulated lower court, diluting the concentration of judicial power so that no single, rogue judge can single-handedly curtail the powers of the duly elected executive, as it has done in the past.

RECOMMENDATION

Congress has the constitutional authority to control the lower court’s issuance of national injunctions and should pass legislation curtailing their abuse by unelected, rogue judges. Rep. Issa’s No Rogue Rulings Act of 2025 does just this, offering a comprehensive solution to appropriately reset the separation of power intended by the Constitution.