District courts increasingly have used nationwide injunctions early in litigation, temporarily blocking federal regulations while the courts consider the rules’ ultimate legitimacy.
The U.S. Supreme Court may soon prevent lower courts from using this power when it decides a procedural issue that’s part of several birthright citizenship cases.
“The use of nationwide injunctions has increased substantially in recent years,” said Ted Chiappari, an attorney with Duane Morris in New York City. “There is concern on both sides of the political spectrum about this development, and some within the judicial system also worry that the nationwide injunctions allow district courts to exercise more power than they should have.”
District courts have issued nationwide injunctions, also known as universal injunctions, in numerous cases. A federal judge in Texas, for example, issued a preliminary injunction to block the 2016 overtime rule. More recently, the U.S. District Court for the Eastern District of Texas vacated the 2024 overtime rule.
Supreme Court Justice Neil Gorsuch “has criticized nationwide injunctions in the past,” said Amanda Brown, an attorney with Fisher Phillips in Dallas and Houston. “But during oral argument, he raised concerns about the proposed alternative — class actions — noting that it takes time to certify a class and class certification is a challenging procedural hurdle that must be cleared, all while the alleged harm is ongoing.”
The birthright...
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