Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity

Authors

Doug Rendleman, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

University of Colorado Law Review

Publication Date

2020

Abstract

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation of powers in the executive’s favor and weaken the federal courts’ remedial options. The federal courts have subject matter jurisdiction and equitable jurisdiction to grant nationwide injunctions that forbid executive branch violations. Traditional equitable principles require the executive branch defendant and agents to obey everywhere. Principles of confinement in place and suggested assure courts’ deference to other branches of government. If a broad injunction is necessary to curb executive lawbreaking and extend complete relief to victims, a federal judge may grant a nationwide injunction following a persuasive factual presentation and careful drafting.

Recommended Citation

Doug Rendleman, Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity, 91 U. Colo. L. Rev. 887 (2020).