N4_SCAGGS (DO NOT DELETE) 3/13/2020 2:25 PM How Nationwide Injunctions Have Thwarted Recent Immigration Policy Madison J. Scaggs* ABSTRACT: Nationwide injunctions are a relatively recent phenomenon that have been used with increasing frequency to halt policies, laws, and regulations. A nationwide injunction can keep a policy from going into effect in the whole nation, despite the fact that it is issued by a single district court judge. The Obama and Trump administrations have both had major immigration reform plans thwarted due to nationwide injunctions issued by district court judges. Not surprisingly, the use of nationwide injunctions has become a hotly debated topic. A recent Supreme Court concurring opinion suggested that the use of nationwide injunctions is unconstitutional. Legislation has been in the works to stop the remedy’s use. Proponents argue that the nationwide injunction is sometimes necessary, especially in the immigration context, in order to provide complete relief against nationwide suffering. Persons opposed to the nationwide injunction point to the lack of historical or textual basis for its use and its disruption of the separation of powers between the branches of the government. Ultimately, this Note argues that nationwide injunctions do not belong as a remedy in the immigration law context. I. INTRODUCTION ........................................................................... 1448 II. BACKGROUND ............................................................................. 1450 A. THE BASIC ELEMENTS OF THE NATIONWIDE INJUNCTION ......... 1450 B. THE HISTORICAL CONTEXT OF NATIONWIDE INJUNCTIONS IN THE UNITED STATES .......................................................... 1451 C. THE PERIL OF PRESIDENT OBAMA’S IMMIGRATION POLICY AT THE HANDS OF A NATIONWIDE INJUNCTION ....................... 1453 D. THE TRUMP ADMINISTRATION’S STRUGGLE WITH IMMIGRATION EXECUTIVE ORDERS AND NATIONWIDE INJUNCTIONS ........................................................................ 1455 * J.D. Candidate, The University of Iowa College of Law, 2020; B.A., University of Illinois Urbana-Champaign, 2017. 1447 N4_SCAGGS (DO NOT DELETE) 3/13/2020 2:25 PM 1448 IOWA LAW REVIEW [Vol. 105:1447 III. THE PRESENT DEBATE AND DEMANDS FOR ANSWERS ON NATIONWIDE INJUNCTIONS ......................................................... 1460 A. CURRENT POLITICAL LANDSCAPE OF NATIONWIDE INJUNCTIONS ......................................................................... 1461 B. ARGUMENTS IN DEFENSE OF THE USE OF NATIONWIDE INJUNCTIONS ......................................................................... 1464 C. ARGUMENTS AGAINST THE USE OF NATIONWIDE INJUNCTIONS ......................................................................... 1467 IV. NATIONWIDE INJUNCTIONS SHOULD NOT BE ALLOWED AS A REMEDY IN THE IMMIGRATION CONTEXT ................................... 1469 V. CONCLUSION .............................................................................. 1473 I. INTRODUCTION Nationwide injunctions are a highly contentious and timely topic, mainly as a result of the Trump Administration’s immigration policies.1 The halting of President Obama’s immigration policy in 2014 provides a brief illustration of how a nationwide injunction works. Then-President Obama attempted to put an immigration policy in play through the use of an Executive Action; however, a single district court judge in the Southern District of Texas issued a ruling that stopped the plan from going into effect, not only in Texas or even just the Fifth Circuit, but completely halted it from going into effect anywhere in the United States.2 With the ability to issue a nationwide injunction, it seems almost as though a district court judge has as much power, if not even more, than the President of the United States in regards to the policy, executive order, or regulation at issue. Additionally, nationwide injunctions are political. They are a political remedy because nationwide injunctions are often used by judicial activists belonging to one party as a tool to stop the immigration plans of the other party by bringing suit in either a liberal or conservative district.3 The differing reactions over time of former Attorney General Jeff Sessions reflect the highly political nature of nationwide injunctions. When the district court judge stopped President Obama’s immigration plan, “[a]s a senator, Mr. Sessions cheered that ruling, saying it was ‘an injunction that stopped the Obama 1. Ariane de Vogue, The Big Legal Issue Buried in the Travel Ban Case, CNN: POL. (Apr. 25, 2018, 11:03 AM), https://www.cnn.com/2018/04/25/politics/supreme-court-nationwide- injunctions-travel-ban/index.html [https://perma.cc/56FL-34U8]. 2. Texas v. United States, 86 F. Supp. 3d 591, 646, 677–78 (S.D. Tex. 2015). 3. Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Constitutional Structure, GEO. MASON L. REV. (forthcoming) (manuscript at 17–20) (on file with author). N4_SCAGGS (DO NOT DELETE) 3/13/2020 2:25 PM 2020] NATIONWIDE INJUNCTIONS 1449 administration from proceeding with its lawless immigration system.’”4 However, when a district court judge in Hawaii issued a nationwide injunction halting President Trump’s Executive Order regarding immigration issues, Sessions said, “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and constitutional power.”5 Nationwide injunctions are a hot topic among lead government actors. Recently, in Trump v. Hawaii, the Supreme Court passed up an opportunity to address the constitutionality of nationwide injunctions as a remedy.6 The case was regarding President Trump’s travel ban against citizens from certain Muslim-majority countries.7 In a concurring opinion, however, Justice Thomas suggested that the propriety of the remedy should be addressed by the Supreme Court.8 Additionally, the House of Representatives voted on a bill that would prohibit nationwide injunctions as a remedy.9 Former Attorney General Jeff Sessions directed Department of Justice attorneys to argue against using nationwide injunctions.10 It seems likely that the constitutionality and the continued use of nationwide injunctions in U.S. courts is a question that will soon be directly addressed. This Note argues that district court judges should not use nationwide injunctions as an equitable remedy to halt immigration policies, regulations, or executive actions. Part II of this Note gives a background of nationwide injunctions in the United States. Specifically, it describes how nationwide injunctions work and then canvases the use of nationwide injunctions in the immigration context during the Obama and Trump administrations. Part II of this Note highlights why the constitutionality of nationwide injunctions is an extremely timely topic that needs to be addressed. Part III characterizes the politics surrounding this issue by discussing the arguments for and against nationwide injunctions. Lastly, Part IV of this Note suggests that the solution 4. Adam Liptak, Trump’s Losing Streak in Courts Is Traceable to Conservative Judges, N.Y. TIMES (Apr. 27, 2017), https://www.nytimes.com/2017/04/27/us/politics/trump-legal-defeats.html [https://perma.cc/5ZMB-H8K7]. 5. Rebecca Savransky, Sessions ‘Amazed’ Judge ‘on an Island in the Pacific’ Halted Trump Travel Order, HILL (Apr. 20, 2017, 3:03 PM), https://thehill.com/homenews/administration/329763- sessions-amazed-judge-sitting-on-an-island-in-the-pacific-can-stop [https://perma.cc/W3CG- BEF3] (reporting on Sessions’ comments that the suits against President Trump’s executive order were being brought “in the very, very liberal 9th Circuit”). 6. See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (reversing the injunction on grounds of abuse of discretion rather than on constitutionality). 7. Id. at 2403–04. 8. Id. at 2424–25 (Thomas, J., concurring). 9. Injunctive Authority Clarification Act of 2018, H.R. 6730, 115th Cong. § 2 (2018). 10. Memorandum from the Attorney Gen. on Litig. Guidelines for Cases Presenting the Possibility of Nationwide Injunctions to Heads of Civil Litigating Components U.S. Attorneys 2 (Sept. 13, 2018), available at https://www.justice.gov/opa/press-release/file/1093881/download [https://perma.cc/3VBN-NVKF]. N4_SCAGGS (DO NOT DELETE) 3/13/2020 2:25 PM 1450 IOWA LAW REVIEW [Vol. 105:1447 to this problem is to stop the use of nationwide injunctions in the immigration context. The remedy given by a judge should be limited to the parties before the court in an immigration suit. Persons challenging an immigration policy or regulation can bring a class action, if need be.11 Additionally, if people are unhappy with new developments in the immigration context, they can turn to the political process. II. BACKGROUND This Part briefly describes what a preliminary injunction is and what elements a complainant must meet in order for a court to issue an injunction. Furthermore, this Part gives a brief overview of the history of nationwide injunctions in the United States. To highlight the politics of nationwide injunctions as a remedy, this Part gives a brief overview of both the Obama and Trump administrations’ immigration policies that were halted by nationwide injunctions. This Part also gives a more in-depth look at the caselaw regarding President Trump’s recent immigration policies because the caselaw is what has really brought nationwide injunctions