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96 Ind. L.J. Supp. 1 (2020)

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An   Appellate Solution to Nationwide Injunctions


                               SAM  HEAVENRICH*

   District courts have issued an unprecedented number  of nationwide injunctions
during the Obama  and Trump  administrations, provoking criticism from the Supreme
Court. This Article proposes a change to the Federal Rules of Civil Procedure that
addresses  the Justices' concerns without  taking the drastic step of eliminating
nationwide  injunctions entirely. Specifically, this Article recommends amending
Rule  65 to allow only the appellate courts to issue injunctive relief that extends
beyond  the plaintiffs in cases challenging a federal law or policy. In addition to the
proposed  Rule change,  this Article offers a categorization framework for existing
proposals  addressing  nationwide  injunctions, classifying them as Prohibitory
Rules,  Inhibitory Standards,  or Inhibitory Rules. The proposal itselftakes the
form  of an Inhibitory Rule.

                                 INTRODUCTION

   As  early as 1967, Justice Fortas described nationwide injunctions as a license for
mischief.' In recent years, the number  of nationwide  injunctions issued by the
federal courts has increased dramatically. District courts have used them to halt the
Obama administration's Deferred Action for Parents of Americans (DAPA)
program,2  postpone the Trump travel ban,3 and keep Deferred Action for Childhood
Arrivals (DACA)   in place despite the Trump administration's attempts at rescission.'
   As  the frequency of nationwide injunctions has increased, critics and defenders
of the practice have weighed in from across the legal landscape. Critics challenge the



* J.D. Candidate 2022, Yale Law School. I am grateful to Harold Koh, Rob Harrison, Briana
Clark, the editors of the Indiana Law Journal Supplement, especially Charles Rice, and my
family and friends for their thoughtful guidance and encouragement.
     1. Toilet Goods Ass'n v. Gardner, 387 U.S. 167, 183 (1967) (Fortas, J., concurring in
part).
     2. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.), aff'd, 809 F.3d 134 (5th Cir.
2015), aff'd by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.).
     3. Hawaiiv. Trump, 265 F. Supp. 3d 1140 (D. Haw.), aff'd in part, vacated in part, 878
F.3d 662  (9th Cir. 2017), rev'd and remanded, 138 S. Ct. 2392 (2018); Int'l Refugee
Assistance Projectv. Trump, 265F. Supp. 3d 570 (D. Md. 2017), aff'd, 883 F.3d 233 (4th Cir.
2018), as amended (Feb. 28, 2018), cert. granted, judgment vacated, 138 S. Ct. 2710 (2018).
     4. DACA   has been the subject of three separate nationwide injunctions halting the
rescission. See NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C.), adhered to on denial of
reconsideration, 315 F. Supp. 3d 457 (D.D.C. 2018); Batalla Vidal v. Nielsen, 279 F. Supp.
3d 401 (E.D.N.Y. 2018), cert. before judgment granted sub. nom, McAleenanv. Vidal, 139 S.
Ct. 2773; Regents of Univ. of California v. U.S. Dep't of Homeland Sec., 279 F. Supp. 3d
1011 (N.D. Cal.), aff'd, 908 F.3d 476 (9th Cir. 2018), cert. granted, 139 S. Ct. 2779 (2019).
On  June 28, 2019, the Court granted certiorari and consolidated the three cases for oral
argument, which took place on November 12, 2019. The District Court of Maryland also
issued a nationwide injunction limiting the Trump administration's use of DACA recipients'
private information in Casa de Maryland v. U.S. Department of Homeland Security, 284 F.
Supp. 3d 758 (D. Md. 2018). Because of this injunction's more limited nature, it was not
consolidated with the other three nationwide injunctions.

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