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S-18 ¦ JULY 20, 2020 INSURANCE LAW

Why Nationwide Injunctions Survived
Another US Supreme Court Term

By Marcia Coyle

The Trump administration’s U.S.
Justice Department failed twice
in the latest U.S. Supreme Court
term to persuade the justices to curb
the power of federal judges to issue
nationwide injunctions.
The Justice Department has been
waging a fight in courts and before
the public against district courts’ use
of these injunctions since the begin-
ning of the Trump administration. In
the administration’s first two years,
the department reported, courts is-
sued 25 nationwide injunctions or
restraining orders against adminis- Demonstrators outside the U.S. Supreme Court in Washington
tration policies. during oral arguments in November at the DACA cases.
Credit: Diego M. Radzinschi / ALM
U.S. Attorneys General Jeff Sessions
and William Barr have delivered public speeches court to address, and dial back, the ability of judges
condemning the practice and urging courts to lim- to block a rule nationally.
it the injunctions only to the parties before them. The justices had faced, but did not address, the is-
Supporters have argued nationwide injunctions are sue in the Trump administration’s travel ban case,
valid tools allowing courts broadly to pause policies Trump v. Hawaii, in 2018. Justice Clarence Thomas
that run afoul of administrative rules and constitu- was the first to raise questions about the injunctions’
tional rights. validity. He called the injunctions “legally and his-
The issue was teed up by the Justice Department in torically dubious.” In January, Justice Neil Gorsuch,
the Obamacare cases Little Sisters of the Poor v. Penn- joined by Thomas, criticized the practice in Dept. of
sylvania and Trump v. Pennsylvania, in which the Homeland Security v. New York. In that case, the ad-
U.S. Court of Appeals for the Third Circuit upheld ministration sought, and was granted, a stay of an
a nationwide injunction against expanded employer injunction against the so-called public charge immi-
exemptions from providing contraceptive health in- gration regulation.
surance. And in a trio of cases, joined under Dept. “Whether framed as injunctions of ‘nationwide,’
of Homeland Security v. Regents, two district courts ‘universal,’ or ‘cosmic’ scope, these orders share the
had issued universal injunctions barring the Trump same basic flaw—they direct how the defendant
administration’s plan to end the delayed deportation must act toward persons who are not parties to the
of so-called Dreamers. case,” Gorsuch wrote in January.
The Justice Department won the Obamacare case, In her dissent in the contraceptive insurance de-
and lost the DACA dispute, but in both the court did cision, Justice Ruth Bader Ginsburg defended the
not confront the merits of nationwide injunctions. nationwide injunction, writing in a footnote: “Al-
At least two justices in recent years had called on the though the court does not reach the issue, the district

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