Last month’s argument in Trump v. CASA provided the Supreme Court with its latest confrontation with nationwide injunctions. The underlying case challenges an executive order aimed at eliminating birthright citizenship. But the issue before the Court concerns whether a single federal district court may stop the enforcement of an executive order on a nationwide basis while litigation is pending. Nationwide injunctions raise many difficult questions, including the potential mismatch between the litigants before a court and the scope of relief sought. But they also heighten concerns about forum shopping to find a single sympathetic judge. We believe that the concern about plaintiffs seeking an outlier court can be addressed relatively simply.
What if there were some national judicial body with the authority to look at any case seeking a nationwide injunction and decide where a suitable forum might lie? We argue that such a body already exists, although it is thought of more as a home for mass torts and other forms of complex litigation, rather than as reconciling competing claims to a proper forum for nationwide injunctive cases against the executive—the Judicial Panel on Multidistrict Litigation.
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The present dispute over nationwide injunctions is not a new one. Although the partisan valence shifts depending upon which party holds the presidency, the argument against is always the same. Nationwide injunctions stretch the boundaries of legitimate cases or controversies by bringing non-parties within the scope of judicial decrees. They impose asymmetric stakes on government defendants who can win only against the immediate litigant but stand to lose to the entire polity if a single plaintiff prevails in any court. They invite and reward manipulation of forum rules as the plaintiff shops for the most hospitable court in which to file. True, defenders of nationwide injunctions argue that there is historical precedent for judicial relief of this type. But the present political pressures of the nationwide injunction are unique, as oral argument in Trump v. CASA displayed.
As Justice Kavanaugh pointed out in his questioning, this problem has grown more acute as the judiciary emerges as the sole counterweight to increased executive assertion of authority. The unfortunate fact of modern democracies is that the legislative branch is weak and the process of formally enacting laws has not kept up with the demand for increased governmental action. Into the breach has stepped a ramped-up executive, regardless of which party is in power. But the problem has intensified. For example, in the first 100 days of the second Trump administration, Congress passed only 5 statutes (the lowest in the post-FDR era). By contrast, there were 145 executive orders, more than 50 percent higher than the combined number from the same period under Bush, Obama, Trump’s first term, and Biden. The standard fare of courts today is more likely to be challenges to the authority of executive action than the constitutionality of a statute. And because these challenges often request emergency or preliminary injunctions, the courts increasingly face mounting tension over the scope, process, and legitimacy of those remedies.
A substantial portion of the Trump v. CASA argument turns on the role that class actions might play in addressing the perceived misalignment of claims and relief sought. Were courts issuing these injunctions required to follow the strictures of Federal Rule of Civil Procedure 23(b)(2)—the federal rule governing the creation of class actions for injunctive relief—then at least the scope of the litigation would match the scale of the relief sought. The formal processes of class certification might add procedural rigor to the rush to find a court willing to issue sweeping injunctions. But it does not address the problem of forum manipulation. Simply put, when Republicans challenge a Democratic president, they often file in Amarillo, Texas; and when Democrats challenge a Republican, they often file in the First or Ninth Circuits.
Forum manipulation is a thorny problem. Litigants meeting the standard for preliminary injunctive relief, or a temporary restraining order, must be able to press their case in a suitable court lest they suffer irreparable injury—one of the preconditions for such early-stage injunctions. At the same time, if the rush to court becomes a predictable stampede to a pet forum, then the nationwide issue becomes a matter of what one hand-picked judge in one forum happens to opine, binding the entire country to their opinion. The issues do not percolate as they rise up across the national judiciary but instead become the province of one court and, by extension, one Circuit.
There is a stable, existing mechanism to address this problem of forum manipulation in nationwide disputes—the Judicial Panel on Multidistrict Litigation. The Panel is a federal body of seven federal judges drawn from seven different circuits. When multiple cases on the same issue are filed across the United States, the Panel can decide whether a case is appropriate for Multidistrict Litigation (MDL) under 28 U.S.C. § 1407. As long as there is “one or more common questions of fact” pending in different districts, the Panel may coordinate or consolidate the cases for pretrial proceedings. The Panel also decides which judge will hear the matter.
Under § 1407(c)(i), the Panel can initiate consolidation even without a motion from the parties. The Panel has over the years handled thousands of such assignments, including many in cases of national import and intense public scrutiny. Over the years, hundreds of federal judges have been assigned cases ranging from multiple antitrust actions to 300,000 claims of defective earplug injuries. These cases have been resolved in multiple courts under the laws of all Circuit courts.
The Supreme Court seemed quite interested in the availability of Rule 23(b)(2) class actions as a substitute for or prelude to nationwide injunctions. A shift to class actions would increase the importance of the Panel in these types of cases. In the immediate case of Trump v. CASA, for instance, plaintiffs filed lawsuits in Washington, Massachusetts, and Maryland to enjoin the executive order relating to birthright citizenship. In all these cases, the nationwide injunctions issued by the district courts had some degree of overlap with one another. If plaintiffs instead pursued Rule 23(b)(2) class actions, there would be competing, overlapping classes to be certified—a classic reason for the Panel to consolidate proceedings in an MDL.
The Panel has not typically used the MDL in public law cases, although some cases, like some antitrust or securities regulation claims, look more like public enforcement actions. Prior scholarship has expressed thoughtful opposition to the use of MDLs in public law actions. But times have changed and the rush to injunctions accentuates the first-to-file forum problem. It is our suggestion that the factors today weigh more favorably for MDL treatment, and that is particularly true as class actions become intertwined with nationwide injunctions. Our proposal does not disable the ability of courts to act on perceived unconstitutional behavior. It is only designed to take the partisan valence out of forum selection.
More importantly, however, is the rise of the Supreme Court’s emergency docket as a vehicle to address matters involving executive orders as quickly as possible. In the past, diffuse lawsuits allowed “percolation,” the power of the lower courts to hear the merits of a claim and debate among themselves the right answer before the Supreme Court needed to weigh in. Today, short-fuse executive orders with nationwide scope and lasting effects press the courts to decide things as quickly as possible. While consolidation of cases can slow matters at the outset, consolidation also allows a clear, expedited path to Supreme Court review with multiple Circuits developing the law of executive power.
