[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




 
    THE ROLE AND IMPACT OF NATIONWIDE INJUNCTIONS BY DISTRICT COURTS

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                     COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           NOVEMBER 30, 2017

                               __________

                           Serial No. 115-48

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
         
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      Available via the World Wide Web: http://judiciary.house.gov
      
      
      
                            _________ 

                U.S. GOVERNMENT PUBLISHING OFFICE
                   
 32-475                  WASHINGTON : 2018           
      
      
      
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona

          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel

                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 DARRELL E. ISSA, California, Chairman
                  DOUG COLLINS, Georgia, Vice-Chairman
LAMAR SMITH, Texas                   JERROLD NADLER, New York
STEVE CHABOT, Ohio                   HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
JIM JORDAN, Ohio                     THEODORE E. DEUTCH, Florida
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
RON DeSANTIS, Florida                BRAD SCHNEIDER, Illinois
MATT GAETZ, Florida                  ZOE LOFGREN, California
ANDY BIGGS, Arizona                  STEVE COHEN, Tennessee
                                     LUIS GUTIERREZ, Illinois
                                     
                                     
                            C O N T E N T S

                              ----------                              

                           NOVEMBER 30, 2017
                           OPENING STATEMENTS

                                                                   Page
The Honorable Darrel Issa, California, Chairman, Subcommittee on 
  Courts, Intellectual Property, and the Internet................     1
The Honorable John Conyers, Jr., Michigan, Ranking Member, 
  Committee on the Judiciary.....................................
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................    11

                               WITNESSES

Professor Samuel Bray, Professor of Law, UCLA School of Law
  Oral Statement.................................................     4
Professor Amanda Frost, Professor of Law, American University 
  Washington College of Law
  Oral Statement.................................................     6
Professor Michael T. Morley, Associate Professor of Law, Dwayne 
  O. Andreas School of Law, Barry University
  Oral Statement.................................................     8
Mr. Hans von Spakovsky, Manager, Election Law Reform Initiative 
  and Senior Legal Fellow, Institute for Constitutional 
  Government, The Heritage Foundation
  Oral Statement.................................................    10


    THE ROLE AND IMPACT OF NATIONWIDE INJUNCTIONS BY DISTRICT COURTS

                              ----------                              


                       THURSDAY, NOVEMBER 30, 2017

                        House of Representatives

     Subcommittee on Courts, Intellectual Property and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The subcommittee met, pursuant to call, at 2:00 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Darrell Issa 
[chairman of the subcommittee] presiding.
    Present: Representatives Issa, Goodlatte, Chabot, DeSantis, 
Gaetz, Biggs, Nadler, Johnson of Georgia, Lieu, and Schneider.
    Staff Present: Joe Keeley, Chief Counsel; Carlee Tousman, 
Clerk; and Jason Everett, Minority Counsel.
    Mr. Issa. The subcommittee will come to order. The 
Subcommittee on the Courts, Intellectual Property and the 
Internet will please come to order. Without objection, the 
chair is authorized to declare a recess of the subcommittee at 
any time.
    I would like to welcome our panel here today on the role 
and impact of nationwide injunctions by district courts. In 
order to observe the fact that members are still coming back 
from the vote, I am going to slightly modify, and we are going 
to do the oath before opening statements.
    So, I would like to now welcome our panel and ask you to 
please rise to take the oath and raise your right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth? Thank you. Please be seated.
    Let the record indicate that all witnesses answered in the 
affirmative. And as we wait for other members to arrive, I will 
introduce our panel.
    Professor Samuel Bray is Professor of Law at UCLA School of 
Law, a fellow Californian for now. Professor Amanda Frost, 
Professor of Law at American University, Washington College 
School of Law.
    Professor Michael Morley is an Associate Professor of Law 
at Dwayne O. Andreas School of Law at Barry University.
    And my favorite, and returning guest for us, Hans von 
Spakovsky--I did not major in that but thank you--is the 
manager of Election Law Reform Initiative and Senior Legal 
Fellow at the Institute for Constitutional Government and the 
Heritage Foundation.
    Again, I want to thank you all for coming, and I will now 
recognize myself for an opening statement.
    We are here today to hear from witnesses on an infrequent, 
but more frequent than in the past, problem of nationwide 
injunctions that deprive nonparties from having an input into 
the judicial process. Whether or not one agrees with the 
outcome of a particular case, nationwide injunctions clearly 
give, for a time, the power of the entire Supreme Court to make 
a law of the land in a case and effectively set a precedent or 
bar from similar cases.
    No two judges are alike, and in most cases, most decisions 
by a district court judge affect only the parties withstanding 
in that case and are subject to a review that only covers the 
circuit, or a small portion of the United States. But in the 
case of nationwide bans or injunctions, we find ourselves with 
a specific case with specific characteristics being used to 
broadly bind the entire Nation.
    If that were not bad enough, we have a bigger problem. And 
that is, at least in a few cases, we have multiple injunctions 
or decisions not to enjoin that conflict each other. What are 
we to do?
    Are we to assume that one district judge in one circuit can 
overturn an injunction of another, since one has a nationwide 
injunction? And if the next rules that in a similar case, an 
injunction should not be granted, does one district judge undo 
another? I am sure our witnesses today will make it clear that 
that would not, and should not, happen.
    It does not happen in ordinary cases, even in a situation 
in which, for example, the first circuit in Maine and the ninth 
circuit in California were to rule completely differently. They 
do not bind the rest of the Nation; only the Supreme Court can 
do that.
    So, as we look at the problem today and this testimony, I 
hope we will all recognize this is a problem in need of a 
solution. One that should be narrowly crafted, solve the 
problem, and not deny the appropriate remedies of parties when 
they come before the court. And with that, we will stand in a 
short recess.
    [The prepared statement of Mr. Issa follows:]
    [Recess.]
    Mr. Issa. The subcommittee will come to order. It is now my 
pleasure to recognize the gentleman from New York for his 
opening statement.
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, the 
nationwide injunctions are a sometimes imperfect but often 
essential equitable remedy in the Federal courts. When the 
Federal Government acts in violation of the Constitution or 
breaks the law on a national scale, a nationwide injunction may 
be the only logical and far remedy. That does not mean that the 
courts should not exercise caution and care when determining 
the proper scope of an injunction.
    But to suggest that a nationwide injunction should be 
prohibited in every circumstance, as some people argue, seems 
like a gross overreaction to whatever perceived flaws this tool 
may have. Whenever a district court issues a nationwide 
injunction blocking a Federal Government policy, the quotes in 
the next day's newspapers are all too predictable.
    Proponents of that policy will hail the decision as 
reasonable and necessary, while supporters of the policy will 
claim it was a vast overreach by a single activist Federal 
judge. When the party in power changes hands and the roles are 
reversed, those who once decried the use of nationwide 
injunctions will suddenly see the virtues of such a remedy. And 
those who supported their use previously, will now consider it 
a fatally flawed travesty of justice.
    We should not examine the role and impact of nationwide 
injunctions through a partisan lens based on our preferred 
policy outcomes. We should instead focus on what factors the 
court should consider when determining appropriate scope and 
substance of an injunction in any given case.
    Critics of nationwide injunctions typically raise four 
major objections. First, they argue them as a matter of 
principle. A single judge should not be able to bind the entire 
Nation with his or her decision. This is despite the fact that 
Article III of the Constitution invests Federal judges with the 
``judicial power of the United States,'' with absolutely no 
restriction on the geographic reach of their decisions.
    They also view the ability to seek a nationwide injunction 
as an invitation to plaintiffs to engage in forum shopping, a 
practice that is certainly not limited to the context of 
nationwide injunctions. Concerns have also been expressed about 
the potential for confusion if multiple courts issue 
conflicting orders with a nationwide impact. Fortunately, 
courts generally avoid this problem by placing a stay on the 
conflicting order, pending resolution by the appellate courts.
    Finally, some scholars have noted that the legal system 
depends on issues percolating throughout the courts. The 
Supreme Court and other courts of appeal can benefit from 
studying the various opinions and analyses offered by lower 
court judges who have considered the question at hand. When a 
district court issues a nationwide injunction, it may short 
circuit this process and stunt the development of the law.
    For certain types of cases, however, like immigration, it 
is simply not practical to apply the law differently in 
different parts of the country. For example, when President 
Trump ordered his unconstitutional Muslim travel ban, it would 
have made no sense if the courts had ruled that it should apply 
differently throughout the United States.
    If people from the banned countries were permitted to enter 
the United States in California because of a limited 
injunction, but were prohibited from entering in Texas because 
the court upheld the ban there, where it had not ruled on it, 
an immigrant can always enter in California and then travel to 
Texas. A nationwide injunction was the only logical solution in 
that case.
    Whatever legitimate concerns may be raised about nationwide 
injunctions, it is also important to note that they offer 
several benefits as well. In some instances, like many 
immigration and environmental cases where the impact of an 
order cannot be neatly cabined off, broad injunctions are often 
the only way--the only way--to ensure that the plaintiffs 
receive the complete relief that the courts require and that 
the plaintiffs legally deserve.
    Nationwide injunction also provides uniformity in the law, 
and they ensure that similarly situated individuals will 
receive equal treatment under the law. This includes providing 
equal justice across geographic regions and treating plaintiffs 
and nonplaintiffs alike. Doing so also protects individuals who 
are unable to bear the cost of litigation from being 
disadvantaged in relation to those who can afford to seek 
injunctive relief.
    This principle can be especially important in certain civil 
rights litigation in which it would be unfair for one person to 
have a fundamental constitutional right vindicated, while 
others who cannot bear the costs and burdens of litigation 
would continue to have their rights violated.
    The court system itself also benefits from nationwide 
injunctions by avoiding a flood of duplicative litigation on 
the same issue over and over again. If courts could only issue 
injunctions with respect to the parties to a case, or if they 
were required to restrict the impact of their decisions through 
a particular geographic region, many other plaintiffs would no 
doubt rush to the courthouse to seek similar relief.
    Nationwide injunctions are obviously not appropriate in all 
circumstances, and there are good reasons for courts to act 
cautiously before issuing such a broad remedy, but we should 
not completely dismantle this important tool and risk depriving 
Americans of the justice they deserve.
    I look forward to examining these and other issues with our 
witnesses today, and I yield back the balance of my time.
    [The prepared statement of Mr. Nadler follows:]
    Mr. Issa. I thank the gentleman for yielding back. We now 
go to our witnesses. I would commend all of you that we will be 
having votes and we are going to try to go through this in an 
expeditious fashion, so we would like to get to questions as 
soon as possible for our panel. With that, of course, observe 
the 5-minute rule as close as you can. Your entire statements 
will be placed in the record. Professor Bray, you are first.

  STATEMENTS OF SAMUEL BRAY, PROFESSOR OF LAW, UCLA SCHOOL OF 
   LAW; AMANDA FROST, PROFESSOR OF LAW, AMERICAN UNIVERSITY, 
WASHINGTON COLLEGE OF LAW; MICHAEL MORLEY, ASSOCIATE PROFESSOR 
OF LAW, DWAYNE O. ANDREAS SCHOOL OF LAW, BARRY UNIVERSITY; AND 
HANS VON SPAKOVSKY, MANAGER, ELECTION LAW REFORM INITIATIVE AND 
 SENIOR LEGAL FELLOW, INSTITUTE FOR CONSTITUTIONAL GOVERNMENT, 
                    THE HERITAGE FOUNDATION

                    STATEMENT OF SAMUEL BRAY

    Mr. Bray. I am honored to be invited to testify. My remarks 
will focus on the problems caused by the national injunction 
and possible solutions. The national injunction is a remedy 
that did not exist for the first 170 years of the Federal 
courts. No change in legal authority made it possible; no 
amendment, no statute, no big case. It was an accidental 
development starting in the 1960s and 1970s, and it remained 
fairly obscure until less than 3 years ago.
    At that point, it was weaponized by Republican state 
attorneys general to stop major Obama administration programs. 
Now, turnabout is fair play. In other words, whether you are 
Democrat or a Republican, sometime in the last 3 years your ox 
has been gored by the national injunction.
    My hope is that this bipartisan pain offers an opportunity. 
We do not have to be distracted by the latest national 
injunction. We can take longer view. We can get the law right.
    I want to start with a definitional point. What makes the 
national injunction distinctive is not its breadth. It is not 
about special extent or its being nationwide. That is a 
misconception--it is one reason I do not call it a nationwide 
injunction.
    What makes this remedy novel and dangerous is that a court 
is controlling how the government defendant acts toward people 
who are not parties to the case. Instead of letting each person 
bring his or her own case, or instead of letting a class of 
plaintiffs bring their own case.
    This remedy lets one plaintiff sue and get an injunction on 
behalf of everyone. These are suits against the National 
Government-- that is why we can call this remedy the national 
injunction. Or we can call it a universal injunction. The point 
is not about geographic scope. It is that courts are giving 
remedies to nonparties.
    Now, what are the problems with the national injunction? I 
will list several. Some of these have been alluded to in 
Ranking Member Nadler's opening statement. First, rampant forum 
shopping. And this is not like ordinary forum shopping. It only 
takes a single win to control the Federal Government 
everywhere, so you can shop until the statute drops.
    Second, there is a risk of directly conflicting 
injunctions, with two district judges trying to move the entire 
country in opposite directions. We have avoided that so far, 
but there was a close call near the end of the Obama 
administration. Third, there is the effect on decisionmaking by 
the Supreme Court. The justices typically wait to grant cert on 
a question until there is a circuit split. Judge Leventhal, 
formerly of the D.C. Circuit, used a metaphor that reminds me 
of making coffee. The justices want an issue to percolate 
through the Court of Appeals.
    But national injunctions stop the percolation. They put us 
in a world where the Supreme Court has to decide cases faster, 
with less evidence, with fewer contrary opinions- a recipe for 
bad judicial decisionmaking.
    Next, the national injunction is an end-run around class 
action requirements. Plaintiffs can bring a class action for 
injunctive relief, but only if they meet certain requirements 
that are meant to ensure effective representation and fairness 
to everyone in the class. But there is a problem. Why does that 
class action even exist, if plaintiffs can get the same remedy 
without meeting any of the class requirements by seeking a 
national injunction?
    Finally, and most important, there is a fundamental 
constitutional problem. Article III gives the Federal courts 
the judicial power. That is a power to decide cases and 
controversies. A power to decide cases for particular parties. 
It is not a power to decide questions and give remedies for 
people who are not parties. That is why for 170 years there 
were no national injunctions from Federal courts, because the 
Federal courts recognized that giving remedies to nonparties 
would go beyond the judicial power.
    So, what should be done about the national injunction? 
First, the Federal courts could repudiate it. They broke it, 
they should fix it. But so far, the Supreme Court has failed to 
act.
    Second, the Advisory Committee on the Federal Rules of 
Civil Procedure could make a change. But the committee recently 
declined to do so. Third, there could be a statute. Starting 
with the Judiciary Act of 1789, Congress has not hesitated to 
define the jurisdiction of the Federal judiciary. Indeed, the 
Constitution itself explicitly gives this power to Congress. 
The need for Congress to exercise it is acute.
    I urge the drafting of legislation that would restore the 
traditional practice of injunctions protecting only the 
parties. The core language could be a simple prohibition. The 
following sentence would suffice: ``a court of the United 
States shall not enjoin the enforcement of a statute or 
regulation as against a nonparty.''
    Our system is designed to get to the right legal answer, 
but through precedent. It is slow, it is messy, not through the 
lightning strike of a single Federal judge deciding a question 
for the whole country.
    [The prepared statement of Mr. Bray follows:]
    Mr. Issa. Thank you. Professor Frost.

                   STATEMENT OF AMANDA FROST

    Ms. Frost. Thank you, Mr. Chairman, Ranking Member Mr. 
Nadler, and members of the subcommittee for holding a hearing 
on this important topic today. I am a Professor of Law at 
American University Washington College of Law where I teach and 
write in the fields of civil procedure, constitutional law, and 
immigration law.
    As both Professor Bray and Professor Morley have stated in 
their written testimony, determining the proper scope of a 
national injunction is not a partisan issue. Over the last few 
years, we have seen national injunctions entered to put a stop 
to President Obama's initiatives and programs, and we have seen 
in the last year national injunctions put in place to put a 
stop to President Trump's initiatives and programs.
    Nationwide injunctions come with both costs and benefits, 
and for that reason it is inappropriate for a Federal district 
court to enter a nationwide injunction without seriously 
considering those costs and benefits. But it would also be a 
mistake to take the nationwide injunction off the table as a 
remedy for a district court, at least in certain cases.
    First and foremost, in some cases nationwide injunctions 
are essential to provide complete relief to the plaintiffs. And 
this is particularly true in immigration cases where it often 
would be impossible to give the plaintiff the relief they are 
requesting.
    So, for example, the State of Texas sued, challenging 
President Obama's initiative to grant deferred action to 
undocumented immigrants all over the United States, and they 
asked for a nationwide injunction. And their argument about why 
it needed to be nationwide was that if President Obama was 
allowed to give deferred action to all the undocumented 
immigrants living outside of Texas then, of course, those 
individuals could move into Texas, causing Texas the very same 
injury it was trying to avoid.
    Now, I disagree with some of Texas' legal arguments. But if 
you agree that they were injured by this initiative, then I 
think you have to agree, they needed a nationwide injunction to 
correct and remedy that injury.
    Likewise, the States that have sued to enjoin President 
Trump's executive order, putting in place a travel ban against 
entry by certain foreign nationals, have argued that that ban 
injures them economically, injures their educational 
institutions and their employers by making it impossible for 
them to recruit and retain employees, students, and faculty.
    Now, without a complete and total injunction of that travel 
ban, their injuries would not be remedied. Nor would it be 
possible to geographically restrict such an injunction because 
we can imagine what would happen. If you put an injunction in 
place for the travel ban as to only one State, of course the 
immigrants will come into that State and then travel elsewhere. 
And in fact, that is exactly what happened in the travel ban 
litigation.
    Within a few days after President Trump issued the 
Executive order with the travel ban, a district court in 
Massachusetts enjoined the travel ban as to people flying into 
Logan Airport in Boston, Massachusetts. So, what happened is 
many immigrants who wanted to come to the United States who 
were affected by the ban changed their flights to fly into 
Boston, Massachusetts, and then travel to other States.
    Nothing short of a nationwide ban was going to be effective 
in any way, shape, or form in that litigation. The same 
problems that I just described plaguing immigration also apply 
to cases involving environmental harm, such as air pollution or 
water pollution, and cases involving defective products or 
endangered animals. All of which the plaintiff's injury could 
not be relieved unless there was a nationwide injunction.
    And finally, as Professor Morley has also written, such as 
rights at issue in redistricting and desegregation cases, 
required nationwide injunctions extending beyond the plaintiffs 
in order to give the plaintiffs complete relief.
    Another important reason to allow for nationwide 
injunctions is that they protect rule-of-law values, such as 
ensuring the uniform and consistent interpretation of Federal 
law, which in turn ensures that similarly situated people are 
treated alike. This is a very important value in our legal 
system. I think it is what motivated the Supreme Court to 
partially uphold the nationwide injunction in the travel ban 
case. It just seems unfair and arbitrary to have a law apply to 
some but not all.
    It is also particularly important in areas such as 
immigration to speak with one voice. I mentioned previously the 
geographically restricted injunction issued by a Massachusetts 
district court in the travel ban case. That created great 
confusion and chaos, not only among immigration officials in 
the United States, but among all the foreign citizens who had 
to reinterpret and apply that law, and other actors, such as 
airline personnel, who also play a role in enforcing our 
immigration laws. Anything short of a nationwide injunction was 
simply too disruptive in the immigration context.
    So, that said, there certainly are serious costs in 
nationwide injunctions, and I commend my fellow panelists for 
raising this issue and hopefully encouraging district courts to 
think twice. My view is the district courts should consider 
carefully the scope of an injunction, should hold a hearing on 
the issue at which they gather evidence from the parties as 
well as interested third parties to the case about the costs 
and the benefits, before going ahead and issuing a nationwide 
injunction. But I do think it remains an appropriate remedy in 
appropriate cases.
    Thank you for your time and I look forward to your 
questions.
    [The prepared statement of Ms. Frost follows:]
    Mr. Issa. Thank you. Professor Morley.

                  STATEMENT OF MICHAEL MORLEY

    Mr. Morley. Good afternoon, Mr. Chairman, ranking member, 
and distinguished committee members. My name is Michael Morley, 
and I am an Associate Professor of law at----
    Mr. Issa. We cannot quite hear you. Pull the mic closer and 
turn it on, please.
    Mr. Morley. Thank you. My name is Michael Morley and I am 
an Associate Professor of Law at Barry University School of 
Law. It is an honor to have the opportunity to speak with you 
today on the issue of nationwide injunctions.
    Almost every injunction can have a nationwide impact in 
some respect. When an injunction prohibits a defendant from 
taking certain actions, that prohibition typically applies 
anywhere in the Nation, including places well outside the 
geographic jurisdiction of the issue in court.
    Today, however, I will be using the term ``nationwide 
injunction'' to refer to court orders that purport to 
adjudicate and enforce the rights of people who are not 
necessarily before the court, who may very well be outside of 
the issue in the court's jurisdiction.
    Because any injunction may have effects far beyond a 
court's jurisdiction, the key question in determining whether 
an order is a nationwide injunction of the sort we are speaking 
about today is whose rights is the court focused on enforcing. 
I would like to emphasize three main issues.
    First, the question of what the propriety of nationwide 
injunction is bipartisan. Second, at least some of the reason 
that confusion exists over nationwide injunctions is due to the 
potentially misleading language courts sometimes use in 
discussing constitutional issues, as well as the uncertainty 
over the respective roles that different bodies of law play in 
constitutional cases.
    Finally, when considering the issue of nationwide 
injunctions, it is critical to distinguish between class action 
and nonclass cases.
    First, nationwide injunctions are a bipartisan issue. By 
issuing a nationwide injunction, a single district judge may 
completely prohibit a Federal statute, regulation, executive 
order, or administrative policy from being enforced against 
anyone anywhere in the Nation, or potentially even the world. 
It may grant relief to third-party nonlitigants. The plaintiffs 
themselves lack standing under Article III of the Constitution 
to pursue.
    Over the past year, nationwide injunctions have been issued 
against several of President Trump's initiatives, including the 
travel ban, prohibition on transsexual service in the military, 
and restrictions on Federal funds to sanctuary cities.
    As my colleagues have noted, however, only a year or two 
earlier, nationwide injunctions were issued against several of 
President Obama's initiatives, including not only deferred 
action for parents of aliens, but Department of Education 
guidance concerning transgender students' bathroom use, and 
even the Affordable Care Act itself.
    Thus, nationwide injunctions may be levied against legal 
provisions enacted by either political party presenting 
concerns for both. It is truly an area in which both parties 
have a strong interest in applying objective, neutral 
principles.
    Second, part of the confusion over nationwide injunctions 
stems at least in part from the language courts use to discuss 
constitutional cases. When a court, especially a district 
court, holds that a statute is facially unconstitutional, we 
often say that the court has struck down the statute, but that 
phrase is only a metaphor. The statute itself remains on the 
books. The court has simply decided that the Constitution 
precludes it from applying that statute in the case before it.
    The question then becomes what are the other legal 
consequences of a district court's ruling that a legal 
provision is unconstitutional? The answer to that question does 
not come primarily from constitutional law but rather other 
bodies of law, such as civil procedure, Federal courts, and 
remedies, which usually counsel in favor of more narrow 
injunctive relief. The notion that a nationwide injunction is 
appropriate simply because a district court concludes that a 
law is facially unconstitutional is erroneous.
    Finally, nationwide injunctions present very different 
issues in class action versus nonclass cases. It is generally 
undisputed that a court may grant relief to the parties before 
it. In a class action case brought under Federal Rule of Civil 
Procedure 23(b)(2), a court may grant injunctive relief to 
protect the rights of all plaintiff class members.
    The main issue in such cases is not so much the scope of 
the injunction but rather the scope of the class. Courts should 
generally avoid certifying nationwide classes in constitutional 
under Rule 23(b)(2) precisely to avoid having to issue 
nationwide injunctions, completely nullifying a Federal legal 
provision across the country.
    In nonclass cases in contrast, when a court issues a 
nationwide injunction it is enforcing the rights of third-party 
nonlitigants who are not before the court. The plaintiffs in 
nonclass cases generally lack Article III standing to seek such 
relief and such broad orders are unnecessary to resolve the 
case or controversy actually before the court. In nonclass 
cases, courts should generally issue only plaintiff-oriented 
injunctions, enforcing only the rights of the particular 
plaintiffs before them.
    I have offered proposed statutory language to address these 
issues in my written statement. Thank you very much for your 
time and I would be happy to answer any questions.
    [The prepared statement of Mr. Morley follows:]
    Mr. Issa. Thank you. Mr. von Spakovsky.

                STATEMENT OF HANS VON SPAKOVSKY

    Mr. von Spakovsky. Well, the legitimacy of an injunction 
issued by a Federal district court against the government in a 
nonclass action law suit has nationwide application to 
individuals who are not parties to a suit. That is the issue. 
Such injunctions are recent phenomena that violate Supreme 
Court precedent, U.S. v. Mendoza. In Mendoza, the lower courts 
refused to allow the government to contest the case because of 
a prior adverse decision on the same issue by a different 
Federal court against different plaintiffs.
    The ninth circuit held that the government was collaterally 
estopped from relitigating the constitutional issue. But the 
Supreme Court held that the doctrine of collateral estoppel, 
which applies to private parties, does not apply to the 
government.
    The government is not the same as private litigants 
because, as Chief Justice Rehnquist said, ``Both because of the 
geographical breadth of government litigation and also, most 
importantly, because of the nature of the issues in government 
litigation.'' Thus, applying collateral estoppel of the 
government ``would substantially thwart the development of 
important questions of law by freezing the first final decision 
issued on a particular legal issue.'' Allowing only one final 
adjudication would deprive the Supreme Court of the benefits it 
receives from permitting several courts of appeal to explore a 
different question before it grants certiorari.
    Thus, the government is not further bound in a case 
involving a litigant who was not a party to the earlier 
litigation and has the ability to continue to apply its 
regulations, policies, and executive orders to individuals, 
including aliens, who are not parties to specific lawsuits 
contesting the government's actions. Nationwide injunctions 
obviously provide an incentive for extreme forum shopping, 
rewarding plaintiffs who steer cases to specific circuits, 
specific districts, and even specific judges.
    While such forum shopping raises serious questions in the 
minds of the public about the objectivity and partisanship of 
the judges chosen by plaintiffs, because the judges are viewed 
as holding particular ideological and political views that will 
benefit the plaintiffs.
    When Federal courts issue nationwide injunctions applying 
to nonparties, they are invading the authority of other Federal 
courts and other appellate circuits. Now while that may be 
appropriate when applied to the specific individuals who are 
before that particular court, it is not appropriate for 
individuals who are not parties of the lawsuits and certainly 
not to unnamed, unknown individuals, except under very limited 
and very narrow circumstances as determined by Congress and the 
Supreme Court.
    There are occasions when a nationwide injunction may be 
appropriate for nonparties, but Congress has provided for that 
through Federal Rule of Civil Procedure 23, which outlines the 
requirements for a Federal court to certify a class action. 
Federal courts issuing nationwide injunctions without following 
rule 23 are evading compliance with Federal law.
    Similarly, Congress has provided that a Federal court can 
set aside actions taken by the government if it finds a 
violation of the Administrative Procedure Act, the APA. Thus, 
while some have criticized the nationwide injunction issued by 
a Federal district court and upheld by the fifth circuit 
against President Barack Obama's DAPA program, that injunction 
was only issued after the courts found a violation of the 
Administrative Procedure Act.
    Now, solutions to the problem are such that, you know, we 
would not have this problem of improperly issued nationwide 
injunctions if Federal courts followed the Mendoza precedent 
with regard to judgments against the government that do not 
bind on parties or complied with Federal rule 23, if a class of 
plaintiffs is justified, or followed the requirements of the 
Administrative Procedure Act. The Federal judges are routinely 
ignoring these requirements when issuing injunctions.
    Now, one potential way to prevent the conflicts that can 
arise from multiple differing opinions issued by different 
Federal judges would be for Congress to require all the 
lawsuits contesting the legality or constitutionality of an 
executive order signed by the President, or a regulation 
promulgated by a Federal agency to be filed in the District of 
Columbia Federal District Court. This is a precedent that has 
been followed by Congress by section 5 of the Voting Rights Act 
which required such lawsuits to be filed in the District of 
Columbia.
    Another potential solution is to de novo review of cases 
that do not follow the Mendoza precedent. Of course, this would 
remedy the problem if circuit judges do not follow the legal 
and equitable limitations that already exists on granting such 
injunctions. I will be happy to answer questions from the other 
members of the committee.
    Mr. Issa. Thank you. I recognize myself for the first round 
of questioning. Oh, I am terribly sorry, I tried to overdo it. 
We now recognize the chairman of the full committee, the 
gentleman from Virginia, Mr. Goodlatte, for his opening 
statement.
    Chairman Goodlatte. Well, thank you very much, Mr. 
Chairman. I appreciate you holding this hearing, I appreciate 
your forbearance in letting me give this statement. Well, this 
issue is a very important one and I appreciate the witnesses' 
testimony today.
    We are here to explore the proprietary of allowing a single 
district court to issue a nationwide injunction with respect to 
congressional and executive actions. With George W. Bush and 
Donald Trump as President, national injunctions against the 
administration's policies tended to be issued by Federal 
district court judges in the ninth circuit, including 
California and Washington State.
    When Barack Obama was President, national injunctions 
against the administration's policies tended to be issued by 
Federal judges in the fifth circuit, including Texas. This 
situation poses many problems for us all to consider.
    Among them, if a plaintiff brings an individual action 
seeking a national injunction and the Federal district court 
upholds the Federal policy challenge, then the decision has no 
effect on other potential plaintiffs. However, if one Federal 
district court judge invalidates a Federal policy and issues a 
national injunction, the injunction stops the Federal policy 
with respect to everyone nationwide.
    To paraphrase what one law professor has written, ``shop 
'til the Federal policy drops.'' Also, when a single Federal 
district court judge issues a national injunction, it would 
seem to greatly interfere with a more optimal decisionmaking 
process within the Federal court system and even affect the 
Supreme Court's resolution of the issue.
    When a Federal district court stops a Federal policy 
everywhere, there might be no opportunity for other Federal 
judges to express their views, leaving the Supreme Court to 
potentially hear the appeal without the benefit of hearing 
differing views on the subject, including different analyses of 
both the law and the facts among both other Federal district 
court judges and other circuits as well. It leaves the Supreme 
Court to decide major questions of Federal policy more quickly 
with fewer facts and without the advice of competing views 
among the lower courts.
    National injunctions issued by Federal district courts 
result in a uniform policy to be sure, but at the cost, at 
least, of some of the problems I have briefly mentioned. 
National uniformity is not a prime imperative in our system of 
lower Federal courts divided into circuits, a system that 
broadly tolerates disuniformity in the law pending review by 
the Supreme Court. Indeed, the only way to avoid disuniformity 
in the Federal courts would be to have only one, but that is 
not our system.
    The situation created by the acquiescence to national 
injunctions does not seem to have prevailed at all in the first 
century and a half, or more, of American history and when the 
prospect was raised in the past, it seems to have been 
decisively rejected during that period. Congress knows how to 
concentrate judicial review in a small set of courts, and it 
has done so on several occasions, pursuant to federal 
legislation enacted by the dually representatives of the 
people.
    Yet the prevailing acquiescence to the issuing of national 
injunctions by lower courts is not the result of any nationally 
considered policy, and certainly not one enacted by Congress 
and signed into law by the President.
    So, I would conclude that with a question to the 
distinguished panel gathered here today. Since disuniformity is 
an inherent part of our Federal judicial system, what is the 
best way to achieve uniformity? Is it through the current 
acquiescence with national injunctions, where the first court 
to invalidate a congressional or executive action has its 
decision applied nationwide, despite the potential of 
preexisting, conflicting decisions? Or is it through either the 
unanimous opinions of the lower courts or through the 
disagreement of the lower courts preceding an analysis by the 
Supreme Court?
    I thank all of our witnesses for participating in today's 
hearing, and I look forward to posing that question to each of 
you at a little later in the process. Thank you, Mr. Chairman.
    [The prepared statement of Chairman Goodlatte follows:]
    Mr. Issa. Thank you. I was planning on letting them answer 
that one, Mr. Chairman. We will let you think about it. I will 
now recognize myself for a round of questioning. You know, the 
chairman made some extremely good points, and I will try to add 
on to those in my questioning.
    Professor Frost, I gave you a heads-up initially that you 
seem to be the most in the middle of some of the decisions 
here. So, let me pose first one question of, in a case in which 
you have a party. For example, in an antitrust case, and the 
party is doing something to a particular individual and then 
brings it. Obviously, the court, one, goes to an appropriate 
venue, often not the plaintiff's but the defendant's. Correct?
    Ms. Frost. I am sorry. Could you repeat the----
    Mr. Issa. I mean, the defendant in an antitrust case has to 
be in a place in which the court can determine they have a 
nexus to it? Okay?
    Ms. Frost. Yes. Yes, for starters.
    Mr. Issa. So, you first have to go where the defendant is--
--
    Ms. Frost. Yes.
    Mr. Issa [continuing]. In some measurable way. Secondly, if 
you plead an antitrust activity, it only affects that 
particular activity as to that individual, and of course, you 
will enjoin the company in the entirety but you are enjoining a 
particular activity. Correct?
    Ms. Frost. Yes. I need to know more about the case, but 
yes, you are enjoining the party from acting.
    Mr. Issa. So using the example--and I think we all 
understand the elephant in the room are these last few years on 
both sides of the aisle these decisions--in the case, for 
example, of a proposed immigrant. If they were coming in, let's 
say, on a green card, if they were returning on a visa, are the 
particulars in that case identical in any way to, let's say, 
somebody coming from a country where you cannot verify their 
origin? Particulars are different, are they not?
    Ms. Frost. Those acts differ.
    Mr. Issa. So, in several of these cases on both sides, 
there was not a harmony of the cases but, in fact, a 
determination that the order was inherently unconstitutional 
for all that could be affected by, both before the court and 
not before the court. Correct?
    Ms. Frost. Are you talking about in the travel ban 
litigation, or----
    Mr. Issa. Yes.
    Ms. Frost. Yes, and I will also say that was the same type 
of ruling that the Texas District Court issued in the case 
challenge where Texas challenged the DAPA.
    Mr. Issa. So, Professor Bray, using that example--because I 
want to stay on it for a second--ultimately did the President 
not have a follow-on order that was a lesser included part of 
his original order?
    Mr. Bray. Yes, that is my----
    Mr. Issa. Was it considered to be unconstitutional when it 
was a lesser included?
    Mr. Bray. Well, that was the subject of further litigation 
and there were more national injunctions against the revised 
order.
    Mr. Issa. Right. But at the end of the day a lesser 
included part of the order was constitutional. In other words, 
the President's order, at worst, was overly broad as to the 
individuals. Correct?
    Mr. Bray. I think that partly depends on the theory of the 
particular challenge. So, I----
    Mr. Issa. Let me move on, because I am going to run out of 
time and I want to get one or two more things in fairly 
quickly. Is it reasonable to say that this problem, to the 
extent that there is, is not the problem of a nationwide 
injunction but the process of agreeing to a nationwide 
injunction and ensuring that, in this case, the United States 
Government, the President and his or her administration has a 
process which is fair and equitable for the outcome?
    I will do it this way--professor, and I will go right down 
the aisle--do you all agree that there is at least one case in 
which somewhere in the Federal court system there should be a 
nationwide injunction granted?
    Mr. Bray. I do not----
    Mr. Issa. Okay. Well, let's----
    Mr. Bray. Because I think it goes beyond the Article III 
power of the Federal courts----
    Mr. Issa. Let's say the D.C. Circuit.
    Mr. Bray. Even in the D.C. Circuit. The injunction should 
bind the parties and that is all the courts have constitutional 
powers.
    Mr. Issa. Let me go through this for second because I want 
to be fair that I think there is a balanced question here that 
as we try to resolve it we want to get to. Professor Frost--and 
I apologize to the others, I am not probably going to get to 
you--but Professor Frost, are there not examples in the D.C. 
Circuit in which regulatory decisions are routinely struck down 
there and that they effectively eliminate the enjoined the 
regulation and strike it down?
    Ms. Frost. Certainly.
    Mr. Issa. Are those not nationwide?
    Ms. Frost. Yes. They operate nationwide in the sense that 
they are going to stop that policy wherever it would have been 
implemented in the Nation.
    Mr. Issa. So, inherently, we do, with some regularity, have 
nationwide injunctions, but we do not call them nationwide 
injunctions. Is that correct?
    Ms. Frost. I think the definitional issue is really 
important here to think, especially if you are going to 
legislate this area, you should be very careful about----
    Mr. Issa. So, one of the--and that is why I asked to 
process and I will close with this--from a process standpoint, 
the ambiguity is a party who has a right to be, let's just say 
in Hawaii or Washington, and the United States of America, 
which is inherently here in Washington, D.C., and finding a way 
to find a process in which the individual is not denied their 
right potentially to seek redress where they are.
    And I will not use immigration as one, but let's just say 
that, and the inherent right of the Federal Government to have 
a process for a determination of what it should or should not 
be able to do on a national basis. Is that a fair statement of 
the problem, not necessarily the solution?
    Mr. Bray. I think we can think about it as a process 
problem with the issue being how do we get from A to B, with A 
as legal dispute and controversy, and B as some sense of 
uniformity. And the traditional way to do that is through 
precedent and not through national injunctions----
    Mr. Issa. And we are going to get to that in my second 
round. Does anyone disagree with that basic concept, that this 
is at least a part of what we should explore here today? With 
that, I recognize the ranking member of the committee for his 
questions.
    Mr. Nadler. Thank you, Mr. Chairman. Professor Frost, 
Professor Bray argues in his testimony and in his answers that 
nationwide injunctions are unconstitutional, period. Do you 
agree with that assessment? And are you aware of any cases in 
which the constitutionality of a nationwide injunction has been 
challenged?
    Ms. Frost. No, I do not agree with that statement. First, 
because I think that we need to separate out a district court's 
power to hear a case and that does turn on connection between 
the defendant and the territory in which the district court 
presides. So, there is a limit on the district courts. They 
cannot hear every case. They have to hear a case in which there 
is a jurisdictional connection.
    But that is not the same as what kind of remedy can they 
issue, and I argue they have the power to issue a remedy to 
provide complete relief to the plaintiff, and that is what the 
Supreme Court has said in Madison. It is also what the Supreme 
Court implicitly said when it partially upheld the nationwide 
injunction against the travel ban, just this past year. 
Because, of course, it kept that nationwide injunction in place 
as it applied to people beyond the plaintiffs.
    Mr. Nadler. So, you would say the Supreme Court, in that 
decision, in effect upheld the constitutionality of nationwide 
injunctions?
    Ms. Frost. Yes.
    Mr. Nadler. Thank you. Professor Bray, would you comment on 
that?
    Mr. Bray. I do not think the procedural posture in that 
case, which is a motion for a stay of a preliminary injunction, 
is a decision on the merits by the U.S. Supreme Court on this 
question. There have actually been--the closest thing to a 
decision on the nationwide injunction is Frothingham v. Mellon 
in the 1920s and it said it would be beyond the judicial power 
under Article III. And that is consistent with the traditional 
practice.
    Mr. Nadler. And by upholding the injunction in the travel 
ban case, the Supreme Court was not implicitly modifying that?
    Mr. Bray. I think when the court is deciding whether or not 
to grant a stay, it is considering a variety of prudential 
considerations without reaching that particular question of 
whether the national injunction is appropriate. That question--
--
    Mr. Nadler. Wait, wait, wait. Of course, it is using a 
variety of prudential considerations. But if it were 
unconstitutional, it could not get to those prudential 
considerations, could it?
    Mr. Bray. Well, I think they should not have. They should 
not have waited. But on that particular posture, it is not a 
decision on the merits of the national injunction.
    Mr. Nadler. Even by implication?
    Mr. Bray. By implication from the posture that the court 
deciding it.
    Mr. Nadler. Okay. All right. Professor Frost, again, when a 
court issues a nationwide injunction it spares other similarly 
situated individuals from having to file suit individually and 
relitigate the same issues obviously. What impact do you think 
a ban on nationwide injunctions would have on the efficiency of 
the courts and on their limited resources?
    Ms. Frost. Yeah, judicial economy and the inefficiency of 
requiring relitigation is yet another benefit of nationwide 
injunctions. I also, as I have said, think there are costs. So, 
I do not think that would outweigh some of the cost. It depends 
on the case. I think the most compelling reason to allow for a 
nationwide injunction is that in cases where you cannot give 
complete relief to the plaintiffs without it. And as I gave 
examples in immigration cases, the case by Texas against the 
Obama administration policies and the travel ban litigation are 
perfect examples.
    Mr. Nadler. Let me ask Professor Bray. In those cases, how 
would you give relief without a nationwide injunction?
    Mr. Bray. I think you could give complete relief in each 
case without a national injunction. So, for example, when the 
State of Washington is suing because of the strongest case for 
standing it had was on the harm to State universities because 
students and faculty could not travel to Washington. So, the 
injunction could require the admission to the United States of 
students and faculty to Washington State universities. And that 
puts the onus on the administration to deal with the logistical 
problems of that and that is completely appropriate.
    Mr. Nadler. Okay. And then, California would have to sue 
separately to prevent the damage to the University of 
California by students who could not come there?
    Mr. Bray. So, the parade of horribles winds up having very 
few floats in it because California might sue, and Washington 
might sue, and then you get a decision----
    Mr. Nadler. Could you just answer my question?
    Mr. Bray [continuing]. From the ninth circuit and it would 
be set for the ninth circuit.
    Mr. Nadler. So, in other words, okay--you would have a 
different lawsuit in every circuit. Professor Frost, can you 
comment on that?
    Ms. Frost. Yeah, and I think it is inefficient to do it 
that way.
    Mr. Nadler. Inefficient?
    Ms. Frost. But I also do not agree with Professor Bray that 
it would resolve the harm for the State of Washington because 
the arguments made by these States was it is a problem for 
their economies, for their universities, for their residents to 
have a whole, at that point----
    Mr. Nadler. Okay.
    Ms. Frost [continuing]. I think seven different countries, 
nationals, were banned from coming to the United States. That 
is going to dissuade people from applying to be students----
    Mr. Nadler. All right. Let me ask you one final quick 
question because my time is running out. You recommend, 
professor, in your testimony that before issuing a nationwide 
injunction a court should only hear specifically on that 
question with testimony from the affected parties. I was struck 
by that testimony. What are some of the factors you think a 
court should consider when examining that question?
    Ms. Frost. When courts consider this question, they should 
look at the costs, which Professor Bray and Professor Morley 
discussed in their articles, and the benefits, which are, as I 
said, complete relief for the plaintiffs as well the need for 
uniformity in the interpretation and application of the law, 
and that like cases be treated alike, which is also an 
important principle in our legal system. So, they should weigh 
those costs and those benefits.
    Mr. Nadler. Thank you. My time has expired.
    Mr. Issa. Thank you, and I would just like to continue on 
that line with the chairmen of the cull committee, Mr. 
Goodlatte.
    Chairman Goodlatte. Well, thank you, Mr. Chairman. I would 
love to dive into the details of both the Texas DAPA injunction 
and the series of decisions by a few district court judges, 
primarily one in Hawaii, with regard to the injunction of seven 
countries. I am mystified by why he allowed it to go forward in 
this most recent action, for Venezuela and one other country, 
but not for five others; I mean, just totally mystified me.
    But I think it is more important to take the concern that 
people have, no matter what their political perspective is, on 
how one single district court judge gets to make this decision 
which can last under the current process for many months or a 
year or more, depending upon the type of case it is.
    So, I want to go back to my question, which is what is the 
best way to solve that problem? Is it to let this continue on? 
Or is it to have some method of achieving uniformity by 
requiring unanimous opinions through the lower courts? Or if 
there is disagreement in the lower courts, that having to 
happen and then go to the Supreme Court before the injunction 
can be imposed.
    So, let me start with Mr. von Spakovsky. Your testimony 
suggests either designating a specific court to hear such 
constitutional challenges. Obviously in this day and age, where 
as I noted everything injunctions--not everything, but most 
things--affecting decisions by the Obama administration came 
out of one circuit, the fifth circuit.
    Most things that came out affecting the Trump 
administration, and before that the Bush administration--not 
all, because there are some here in the eastern part of the 
country--but came out of the ninth circuit. Designating one 
circuit to do that is going to place a lot of power in one 
place. You also suggested changing the standard of review by 
circuit courts when hearing appeals. Do you have a preference 
on those two suggestions?
    Mr. von Spakovsky. I think there is a little bit of a 
misnomer going on here, and Professor Bray talked about this. 
Look, the problem is not so much nationwide injunction. Part of 
the problem here is the courts issuing injunctions that are too 
broad.
    For example, Professor Frost keeps comparing the decision 
about DAPA with the travel orders, but in the DAPA case what 
the court actually found was a violation of the APA. That is 
not something that was asserted in the lawsuits against the 
travel orders. And there is a difference there.
    Look, Congress itself has passed this APA statute saying 
that when an agency is acting in issuing a policy or 
regulation, you have given the courts the authority.
    Chairman Goodlatte. I get this, and I agree with your 
assessment, but I want to get to how you prevent district court 
judges that have a wide array of ``shop 'til the Federal law 
drops.'' How do you avoid that?
    Mr. von Spakovsky. Okay, in that case, I mean, there are 
problems with giving one particular court, like the D.C. 
Circuit, jurisdiction over something, for example, that you 
think that an agency is doing, because then it brings up the 
politics, or the fights over who is going to sit in that 
circuit. On the other hand, and I think it was Professor Bray 
who suggested that you change the standard of review.
    So that, for example--and this is something that I have 
recommended--if a Federal district court goes beyond the 
Mendoza precedent, if it extends its injunction beyond the 
people who are actually the plaintiffs in a case, the named 
plaintiffs, and goes beyond that, if you change that standard 
of review from abuse of discretion to de novo review, then you 
are going to give the appellate court more authority to strike 
down when a district court goes too far.
    Of course, that is not going to do you any good if you have 
circuit court judges who are not paying any attention to that. 
And if you want to see a good example of circuit judges not 
paying attention to these restriction on them, look at the 
ninth circuit panel in the case of----
    Chairman Goodlatte. Let me interrupt you here.
    Mr. von Spakovsky. Yeah.
    Chairman Goodlatte. Again, I love listening to what you 
have to say, but I want to give the other three witnesses a 
chance to respond to that one question because that is the only 
thing I am going to get to ask. Professor Morley?
    Mr. Morley. Thank you. In terms of uniformity, the Federal 
judicial system is fundamentally structured not to promote 
immediate uniformity. Most of the consequences of a court's 
ruling does not come necessarily from an injunction. It comes 
from the stare decisis effect. By having 12 different 
geographic circuits----
    Chairman Goodlatte. What is the solution? I share your 
concern. What is the solution?
    Mr. Morley. Well, that is exactly my point. As long as you 
are working against the backdrop of a system where even circuit 
court rulings are only binding within their circuits, it would 
be inconsistent with that to say, nevertheless, we should allow 
single district judges or single circuit courts to allow their 
injunctions to apply.
    Chairman Goodlatte. How about just legislate a change in 
the standard of review?
    Mr. Morley. Certainly, I would support moving to a de novo 
standard of review for injunctions that purport to enforce the 
rights of third-party nonlitigants. Going further and enacting 
statutory language prohibiting courts from adopting injunctions 
that enforce the rights of third-party nonlitigants would be 
even greater protection.
    And this goes back to the definitional question. Everyone 
agrees. A court should enforce the rights of the parties before 
it. In some cases, that might require relief that is broader, 
that might look like a nationwide injunction, but that is not 
the problem. The problem is where courts are saying, ``I am not 
focusing on enforcing this plaintiff's rights. I want to 
enforce everyone's rights, including third-party 
nonlitigants.''
    Chairman Goodlatte. Got it. Let me go on to Professor Frost 
and then Professor Bray briefly.
    Ms. Frost. So, you are concerned about the power of a 
single district judge, and I would just point out that, of 
course, that judge's decision is immediately appealable to a 
circuit court, to an unbound circuit court, and to the U.S. 
Supreme Court. So, I do not think it leaves the decision in the 
hands of a single district judge.
    Chairman Goodlatte. It takes a long time to get there.
    Ms. Frost. Not in certain litigations. We have seen it with 
the travel ban litigation, among others.
    Mr. Bray. It can take a while and because the standard of 
review in the Court of Appeals, and for the Supreme Court, is 
abuse of discretion, you get some insolation. I am concerned 
about this problem about if there is a way, to do any kind of 
half measure, and I do not think there is.
    I do not think anybody has come up with a test that is not 
malleable and subjective, that is going to depend a lot on the 
judges own preferences to decide whether a national injunction 
is appropriate. Especially since the things that would go into 
the balance are very incommensurable.
    Like the concern for all people being treated alike under 
the same rule, like, that is going to be present in every case 
and could justify a national injunction in every case, if you 
accept that way of thinking about our system. As opposed to 
slowly, through precedent, getting uniformity.
    So, I do not think there is any way to give a Federal 
district judge power to issue national injunctions sometimes 
and not other times that will actually be logical and coherent.
    So, I would say a strict prohibition: ``a court of the 
United States shall not enjoin the enforcement of a statute or 
regulation as against a nonparty.''
    Chairman Goodlatte. Thank you.
    Mr. Bray. Thank you, Mr. Chairman.
    Mr. Issa. Thank you, Mr. Chairman. We now go to the 
gentleman from Georgia, Mr. Johnson.
    Mr. Johnson of Georgia. Thank you. Should not the decision 
as to whether or not to issue a nationwide injunction be made 
on a case-by-case basis, Professor Bray?
    Mr. Bray. I think it is an excellent question and equitable 
decisions from the courts of equity and equitable remedies, 
including the injunction, do take into account then specifics 
of the case.
    Mr. Johnson of Georgia. And cannot a nationwide injunction, 
or a case where a nationwide injunction is sought, not be 
handled in that same way? Theoretically?
    Mr. Bray. I think it cannot be and the reason is that the 
argument for a national injunction does not really come down to 
national injunctions in some cases. It is present in every 
case. And the arguments against the national injunctions, the 
ones I consider most potent, are also not only present in some 
cases. They are present in every case. So, what you have----
    Mr. Johnson of Georgia. It largely has to do with its 
effect on people who are not parties to the case. Correct?
    Mr. Bray. Yes, and also----
    Mr. Johnson of Georgia. Is it not correct, however, that 
under rule 24, Federal Rule of Civil Procedure, a nonparty has 
a right to intervene in a case that they are not a party to 
that they contend affects them?
    Mr. Bray. Yes, there are traditional devices for bringing 
in nonparties. Intervention and class actions are ways of doing 
that.
    Mr. Johnson of Georgia. You can even intervene under rule 
24 as a class action under rule 23?
    Mr. Bray. I am not sure offhand the answer to that 
question.
    Mr. Johnson of Georgia. What would you say to that, 
Professor Frost?
    Ms. Frost. My understanding of intervention is that it 
would not be a method of certifying a class. You would have to 
go through the rule 23 requirements to certify a class----
    Mr. Johnson of Georgia. But certainly an individual who is 
a representative of a class could file based on the 
individuality of the interest that he or she is asserting that 
is affected by the nationwide ban? Correct?
    Ms. Frost. Certainly, you could try to get a class action 
involved or started up in litigation involving a nationwide 
injunction.
    Mr. Johnson of Georgia. Professor Bray, you contend that 
the development of the national injunction is, to use your 
words, ``an accidental development.'' Do you mean that the 
careful and deliberate evolution of case law and precedent and 
authority based on previous decisions was an accident in 
development of the national injunction?
    Mr. Bray. I think it was an accident because it did not 
happen through careful and deliberate development of this idea. 
There was----
    Mr. Johnson of Georgia. Was it a sudden decision?
    Mr. Bray. One of the key decisions in the early 1970s, the 
one that seemed to get the national injunctions started 
involved a concession by the government defendant that the 
government defendant should not have made, and so the court did 
not really consider the question closely. And so, the court 
said, ``Well, it does not really matter whether a class is 
certified or not.'' It had all the hallmarks of sloppy 
reasoning, not careful reasoning.
    Mr. Johnson of Georgia. Was that case appealed?
    Mr. Bray. It was.
    Mr. Johnson of Georgia. And was it appealed to the U.S. 
Supreme Court?
    Mr. Bray. Either cert was denied or there was no petition 
for certiorari, but there was not a Supreme Court decision.
    Mr. Johnson of Georgia. And so, has there been a Supreme 
Court decision on the constitutionality of the national 
injunction? I believe you indicated that there had been some 
discussion about it in a previous decision that occurred what 
year?
    Mr. Bray. I think the Frothingham v. Mellon decision from 
the 1920s is inconsistent with the national injunction and 
rejects it----
    Mr. Johnson of Georgia. Well, I tell you, a lot has changed 
since 1920, and the evolution of the case law has somewhat kept 
up with it. And is this issue something that can become right 
at some point for a decision by the U.S. Supreme Court?
    Mr. Bray. It certainly can be, and in fact----
    Mr. Johnson of Georgia. And should we not wait for that to 
happen as opposed to the legislative branch putting its heavy 
finger and thumb and entire hand and body on the scales of 
justice in the development of our case law?
    Mr. Bray. Well, the Constitution binds and demarcates the 
authority of all three branches, it also binds the court, and 
it gives to this House the authority to develop rules for the 
jurisdiction of the Federal court. So, it is fully within the 
House's constitutional powers.
    Mr. Johnson of Georgia. I would like to ask Professor von 
Spakovsky----
    Mr. Issa. Without objection, the gentleman will have 15 
additional seconds.
    Mr. Johnson of Georgia. Thank you. I would like to ask 
Professor von Spakovsky what, under Article I, section 8, power 
gives the legislative branch the authority to legislate in this 
area?
    Mr. von Spakovsky. Well, Congressman, there would not be 
any Federal district court unless you all said there were.
    Mr. Johnson of Georgia. Well, I know that. And so----
    Mr. von Spakovsky. And so, that gives you----
    Mr. Johnson of Georgia. Enumerated powers.
    Mr. von Spakovsky. Yeah, that is right.
    Mr. Johnson of Georgia. Courts in the theory to the U.S. 
Supreme Court, but what other enumerated power under Article I, 
section 8, gives Congress the authority to legislate in this 
specific area?
    Mr. von Spakovsky. Oh, I think the very fact that the lower 
courts would not exist unless you all said they exist gives you 
a great deal of authority over shaping what they can do. I 
mean, part of the problem here is, again, I am going to go back 
to one of the key Supreme Court precedents here, on this U.S. 
v. Mendoza.
    Look, in that case, the Supreme Court said that a decision 
in a case in the Federal courts is not going to apply to 
nonparties to the case. And yet, here you have all these 
Federal courts around the country extending these injunctions 
to nonparties in the case. And part of the problem here, and 
why I agree with Professor Bray that Congress has got to do 
something about this, is--the Supreme Court is not----
    Mr. Johnson of Georgia. It just seems like----
    Mr. von Spakovsky [continuing]. Is not enforcing the 
discipline of that----
    Mr. Johnson of Georgia. It seems like it has gotten to the 
point where we are deciding our case law based on who is in the 
executive branch. And with that, I will yield back.
    Mr. Issa. I thank the gentleman. We now go to the gentleman 
from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman. This has been a very 
interesting discussion here this afternoon, I think. And I have 
to say starting off, I think, Professor Bray, I think you have 
got a reasonably good idea as far as maybe the way to handle 
this.
    The challenge is passing anything substantial which can 
make it through the Senate. We can get things passed in this 
Committee, sometimes they are bipartisan, sometimes they are 
not. We can get things through the floor, but the Senate has 
different rules over there and they can--we need 60 votes to 
get anything done. And one side or the other thinks because if 
something passes it is going to adversely impact them 
politically and they could run against the other side and say, 
``They were a do-nothing Congress.''
    It is hard to get anything done in the Senate under the 
current rules, except during a process called reconciliation 
where you do not need 60 votes. And that is why we at least 
have a chance of getting the tax bill that already passed 
through the House through the Senate. But I have already gone 
way off from where I had intended to go, and I only get 5 
minutes.
    So, I agree with a lot of what I have heard from 
colleagues, and I agree with--although there are some things 
that obviously you all differ on. But we have 500? 600? And 
there are vacancies now, but how many federal district court 
judges do we have right now? Is it 550? Or anybody know 
approximately what that number is?
    Ms. Frost. Approximately 650--680, I think.
    Mr. Chabot. Six-hundred-and-fifty, 680?
    Ms. Frost. I think it is 680.
    Mr. Chabot. Six-hundred-and-eighty? Okay. It just seems 
that there is something inherently wrong when you can forum 
shop under the existing things, which is basically, especially 
in the last 3 years, been happening. You know, Republicans go 
to the fifth circuit out of Texas where they consider they are 
going to get more conservative judges and agree with them when 
they were up against Obama, and now Democrats, the Liberals, go 
out to the West Coast, the ninth circuit, because they think 
they are going to get more for a variety of reasons opinion.
    And you can literally stop something that the dually-
elected President of the United States has determined with his 
powers to do. Sometimes, you know, Congress has passed 
legislation so that sometimes it is an executive order that he 
is acting on.
    But it just seems wrong. They could have gone to any other 
judge, got a completely different opinion, and as the chairman 
said, it can be in effect for months because of that one 
unelected judge. Or it could be as long as a year sometimes. 
And these are pretty impactful things whether you are talking 
about DACA or you are talking about a type of travel ban. 
Although, you know, that term--some people disagree with the 
term there.
    But this is something really wrong with our government when 
that can happen. With one person acting in that way, and you 
have sort of gone to that person because you have got a really 
good idea which direction they are going to go. I do not think 
the American people are served under that process and I think 
we have a responsibility to change it. I would love to hear a 
comment, maybe I will start with you, Professor Bray.
    Mr. Bray. I agree. I cannot speak to the political 
realities, though I do hope that the fact that both sides have 
been on the receiving end of national injunctions will give 
everyone incentive to see their potential danger.
    And also, the potential infringement on the prerogatives of 
Congress because it is statutes that are passed by Congress 
that can be knocked out by a single judge instead of the more 
orderly process through precedent. So, I would hope there would 
be some sense of Congress as a body of this is the importance 
of this and not just each party.
    Mr. Chabot. And I guess--and I have only got 1 minute and 
10 seconds, now 9, now 8 seconds left here--so, I will really 
just ask this. You had mentioned for 170 years this did not 
happen. You know, it has only happened for 50, and it has 
really only happened for the last 3 years. How did we, as a 
Nation, get by without doing this for that period of time?
    It reminds me a little bit of the, you know, the Florida 
Department of Education. I am a former schoolteacher. We did 
not have a Federal Department of Education until the 1970s. How 
in the heck did we educate our kids prior to that? You know, we 
do things, and there are a lot of people who disagree that 
suddenly the education system is better since now we have a 
Federal Department of Education. I am getting a little off 
track here again.
    But we did not do this for a long time and now we are doing 
it. Let me ask you, Mr. von Spakovsky, how did we get by with 
it and is there any lesson here and how should we change this?
    Mr. von Spakovsky. Look, I think part of the problem is, 
and I do not want to be too critical about this. But look, 
Congress, you have delegated too much of your authority to the 
executive branch and to executive branch agencies. And 
unfortunately, too many of the statutes that you have passed 
are so broadly worded that you are giving a lot authority to 
these agencies to interpret the law, come up with their own 
regulations, and that is why we end up in court so often.
    You know, there are so many lawsuits filed against Federal 
agencies over the regulations issue and that is because 
Congress is delegating too much authority to these agencies. 
You need to pull that power back into Congress, and that is 
part of the problem.
    Mr. Chabot. I completely agree with you, and I am, 
unfortunately, out of time. Thank you very much.
    Mr. Issa. We now go back to the chairman of the full 
committee for a second round.
    Chairman Goodlatte. Well, thank you, Mr. Chairman. I want 
to pursue another line in my question. I do not disagree with 
Professor Bray and Mr. von Spakovsky that asserting the 
limitation of the jurisdiction of the courts would be a good 
solution, but I am not sure that that is very easy to do.
    I accept your criticism, but when I try to get something 
like that all the way through the House and then through the 
United States Senate, I realize great limitations on our power. 
And you are right, the horse is out of the barn on a lot of 
things.
    And it might be easier to do something more modest. It 
might get some bipartisan support. What if, for example--
because this has affected, you know, initiatives on, you know, 
from both a conservative and a liberal perspective--what if you 
were to raise the standard for issuing the injunction in the 
first place? To require that an injunction that is broad in its 
scope has to be a three-judge panel, still immediately 
appealable but still having that lengthy time that elapses?
    But before the injunction can ever be issued, three judges 
all have to agree on the same, you know, wherever you go, three 
judges are pulled together under a random selection system, 
like our Federal courts are supposed to use. And three judges 
would all have to agree before an injunction can be issued as 
opposed to one individual making this decision.
    I mean, we do not recognize that anywhere else through this 
whole process, whether it is congressional action or action by 
the higher courts that require at least some kind of majority 
opinion.
    I would say, for this initial stop of a President's clear 
authority, or a congressional clear authority, to say, ``Oh, 
no. That cannot be stopped,'' would take more than one 
individual district court judge. We will start with you, 
Professor Bray. I know you like your alternate better, but 
short of that, what else would you suggest?
    Mr. Bray. So, I would be wary of anything that would seem 
to put Congress' imprimatur on courts granting injunctions that 
go beyond the parties. So, if you set up three-judge court just 
for those injunctions? One problem you will run into is that 
those, I think they will be on the judicial power.
    Another problem is that the injunction is drafted at the 
end, logically, of the decision, whether on the decision on the 
unlikelihood of the merits for preliminary injunction or at the 
end for a permanent injunction. And so, you might not know 
until you get started.
    I think there are ways you can think about raising 
standards for injunctions that might indirectly affect this 
question. So, one of those is injunction bonds. It used to be 
the case that injunction bonds were more generally required for 
preliminary injunctions. That has largely fallen into desuetude 
over the last several decades.
    If there actually were injunction bonds, then that would 
give plaintiffs an incentive to only ask for injunctions that 
protected them because they would not want to pay for an 
injunction if they wound up being wrong and that was broader.
    So, that might be an indirect approach, but I would be wary 
of seeming to give this power to the courts that I do not think 
they constitutionally have.
    Chairman Goodlatte. But they have it unless somebody tells 
them they do not, right now. And, you know, I brought this up 
with the Chief Justice and with the Judicial Conference of the 
United States and said, ``This is something that you can 
address more easily than the Congress can address.'' And it has 
only been about 6 weeks since I did that, so I think there is 
maybe some hope there is something.
    But I have not seen a recognition on the part of the courts 
that this is an abuse of power that they should, from the top 
down, undertake to restrain because right now they are just 
letting it happen. Professor Frost.
    Ms. Frost. Yes, sir. I just want to say, in some ways, I 
think this hearing, while great to have this conversation, is a 
little premature in part because--and I want to give them 
credit--Professor Morley and Professor Bray have changed the 
way that some courts are now approaching this. They are now 
citing their articles and saying we need to be a little more 
careful. They are not taking up the position Professor Bray 
takes, and I hope they do not because we disagree that they 
should never have a nationwide injunction.
    But they are saying look at those concerns that Professor 
Bray and Professor Morley raised in their articles. We are 
going to look at those and think about them and think about 
this more seriously, rather than just, you know, issue a 
decision ordering a nationwide injunction without any thought.
    So, I think the district courts are beginning to think 
about a little more seriously than they did in the past. And 
there is a conversation starting now around this----
    Chairman Goodlatte. But would you say we are premature 
because you would also say that they would be premature in 
coming and testifying if we had thought of this and raised this 
first. So, I do not think it hurts for anybody to raise this 
subject----
    Ms. Frost. I am sorry, I did not mean to suggest it was 
premature to have the hearing. It might be premature to 
legislate because of the fact that I think courts are beginning 
to look at this and question themselves. I do not think the 
hearing is premature but to----
    Chairman Goodlatte. I disagree with you on that.
    Ms. Frost. Yeah. And you mention three-judge panels. So, of 
course, that was tried and then abandoned in another context 
because it was so onerous and difficult to maintain. And I will 
also point out you can get a very quick appeal to an appellate 
court, which is a court of three judges. So, you can get three 
judges looking at this very quickly if you want to.
    Chairman Goodlatte. Mr. Morley.
    Mr. Morley. I agree with Professor Frost's comment. The 
Federal law used to require three-judge panels for injunctions 
in constitutional cases. And simply because that was such an 
overload on what has now become an even more burdened judicial 
system, I think that requiring three-judge panels would make 
things even worse for the Judiciary.
    It also does not solve the Article III issue, that Federal 
courts do not have Article III jurisdiction to grant relief to 
third-party nonlitigants, that the plaintiffs do not even have 
standing to enforce their rights.
    I have tried to include proposed language in the statutory 
proposal in my written statement by preceding the prohibition 
on nationwide injunctions with ``unless otherwise required by 
the U.S. Constitution or some other provision of applicable 
law.''
    So, if the court, whether it is the district court--
ultimately, the Supreme Court--if the court were to conclude 
that for equal protection reason or for other reasons in a 
particular case only enforcing some peoples' rights would be 
constitutionally problematic, which I think is a very under-
examined and difficult issue in itself.
    But if a court were to conclude that anything less than a 
nationwide injunction would be unconstitutional, including that 
proviso, including that qualification, would give it the 
flexibility in that rare extreme case then to do what it 
believes the Constitution requires, subject, of course, to 
further appellate review.
    So, I think with that qualification, unless otherwise 
required by the Constitution or other applicable law, 
nationwide injunctions will be prohibited. And of course, there 
is a little bit more detailed language in the proposal. I think 
that might be able to get more support rather than a flat 
unqualified ban.
    Chairman Goodlatte. Mr. von Spakovsky.
    Mr. von Spakovsky. Look, I do not think I really have 
anything to add to that other than to say that, look, requiring 
a three-judge panel to be able to issue this kind of injunction 
is going to raise the burden on the judges. Because the whole 
problem we have got right now is, going back to what we have 
said before, is you have got Federal judges who are ignoring 
Supreme Court precedent and you do not have the Supreme Court 
imposing discipline on them for doing that.
    Chairman Goodlatte. I do not disagree, but I think raising 
the burden would be a good thing in terms of making it less 
likely they will precipitously issue an injunction without all 
of the facts being developed and all of the parties being 
heard. And all the law being considered, and whether or not 
they have the authority to do what they are doing. So, thank 
you, Mr. Chairman. I appreciate this very much.
    Mr. Issa. Thank you. Okay, I think I am going to be the 
closer here, and I want to just go through a couple of things. 
There was a question earlier and, you know, one of the weakest 
things we can do but most profound is to read a couple of words 
from the Constitution. And so, I will rely on that.
    In Article III, section 1, a portion of the paragraph says, 
``Judicial power of the United States, shall be vested in one 
Supreme Court, and in such inferior courts as the Congress may 
ordain.'' But in section 2 of the same Article III, I think 
something that, when that question was asked earlier, is 
probably appropriate. It says, ``All cases affecting 
ambassadors, other public ministers and consuls, and those in 
which a State shall be party, the Supreme Court shall have 
mentioned, the Supreme Court shall have appellate jurisdiction, 
both in law and in fact, with such exceptions, and under such 
regulations as the Congress shall make.''
    And I think what is important there is obviously--and it 
has been done--we have the right to limit the Supreme Court in 
what they hear. So, would it not be reasonable to say that 
inferior courts, we have the same right, and then ultimately, 
the question of nationwide injunctions is within the power of 
Congress? It is only a decision for us to make.
    Mr. Bray. I think that is correct, and I would also add 
that the necessary and proper clause, in its horizontal aspect, 
passing laws for the carrying into effect the powers of other 
departments (in this case, the Judiciary) is another ground of 
authority for Congress.
    Mr. Issa. So, let me go through a hypothetical because I 
want a bunch of them but there is one that has bothered me 
since this began. In a case, any case, in which you have a 
plaintiff and in which the United States of America is 
ultimately the defendant, you have two sets of remedies to be 
considered.
    And I know that the case in Texas is an interesting one. 
The first case is the plaintiff's need to have a remedy; and 
so, the judge grants a remedy for that, and we can argue 
whether the remedy has to be that broad.
    But let's assume for a moment that the remedy cannot be a 
nationwide injunction. It can only be a remedy for that 
individual or entity, such as you can come to Washington State 
schools. Then the question is, is it a separate question for 
the judge and for all the courts of the question of should this 
apply to bind the Federal Government from executing such 
actions in any other case substantially similar?
    Is that clearly a separate question in most cases? In other 
words, the unconstitutional question? Would you all agree that 
that second question is normally definably different in that it 
is a question of implementing against parties not there in 
which the circumstances could be different? Is that a fair 
assessment? So, let me ask a question for which I will more 
than just acquiescence that you heard me say it.
    If we were to make a two-part test, would we not be 
creating a situation in which the judge deals with the 
plaintiff and the remedy that is narrowly focused on what can 
be done and needs to be done, and then if, and only if, the 
moving party, the plaintiff, asks for and the judge agrees that 
further limitation of the actions of the United States 
Government is needed, makes a decision, and then we, in 
Congress, determine a process of the courts?
    And I am stopping it there because I do not know that today 
is the day--and I would like all of your input--whether today 
is the day to say, ``Okay, we go to the D.C. Courts, we go to a 
three-judge panel, all of the other potential remedies.''
    But is it not reasonable to say there is two decisions and 
if a party asks for the broader decision, if the judge agrees 
that it would be appealable to the broader decision, then you 
go to a process that clearly is beyond the scope--because we 
will have limited it--beyond the scope of that particular 
judge? Your comments?
    Mr. Bray. I think you are right that it is two separate 
inquiries, but I do not think a new process is needed for that 
separate inquiry. That is the doctrine of precedent. That 
already exists. So, injunctions are remedies to protect the 
parties, precedent is how one case ripples out to other cases. 
That is the way it has worked throughout most of U.S. history 
and there is no reason it cannot continue to work that way.
    Mr. Issa. Professor.
    Ms. Frost. So, I guess I want to first say that I am not 
sure it is always these two separate issues, so to go----
    Mr. Issa. No, and I agree that the case of if somebody 
comes in to the country, it could be broader in the sense that 
they will come, if you are talking about, for example, if you 
were on the other side of the issue and said you were letting 
somebody in and they are going to have a criminal effect or a 
welfare effect, and so on. The State could say that it still 
affects me.
    But the reason I am asking this question, and I want to 
somewhat limit the discussion, so we can close out 
appropriately, is one of the questions that I am debating here 
is: do we do legislation, which Professor Bray does not believe 
we should? And if we do legislation, the real question is, if 
there is a recognition that there are others--if you will, a 
whole class--there is a process?
    But if there is a potential recognition that the 
government, let's say the EPA for a moment, has clearly done 
something that they should not do. You have to have standing in 
order to bring that case, that question of constitutionality or 
authority. And if you cannot use this case to pivot to it, then 
the question for the court is they cannot act sua sponte, they 
have to have a case before them.
    So, that is why I am asking, can the case before them 
trigger the ultimate question, that in some cases was decided, 
which is notwithstanding a party present, we want to bind the 
executive branch from action over everyone?
    And I do want to ask it and would like further study, and I 
know there is some reading material already available. I have 
looked at some of it. Because I think that is a question before 
this committee is, does the process truly envision the question 
of striking down the constitutionality in the fastest possible 
and yet fair system? Not as to the original plaintiff, but as 
to the question of whether the actions of the executive branch, 
for example, exceed that which Congress authorized? Which 
ultimately, as you know, we have had a vexing time with here. 
Briefly.
    Ms. Frost. Yes. So, I agree there might be cases in which 
the complete remedy to the plaintiff is available without 
affecting others. And in those cases, that should be taken into 
account by a judge and should be a reason to hesitate, I would 
say, to issue a nationwide injunction.
    I do, though, urge you to look at my written testimony 
where I cite a case from the sixth circuit where the sixth 
circuit has 18 States suing to strike down a regulation where 
the EPA was trying to broaden its authority, expand the scope 
of its operations.
    And that court said I am going to issue a nationwide 
injunction, not one limited to the 18 states, because it seems 
impossible to administer, would create disuniformity and 
confusion to say the EPA can regulate certain types of things 
outside of these 18 States but not within them. And that is 
another example of where I think the need for uniformity may 
have suggested that the cost-benefit analysis favored a 
nationwide injunction in that case.
    Mr. Issa. Any other final closing questions or statements?
    Mr. Morley. Mr. Chairman, I totally agree with you that 
those are two separate questions, but courts should not reach 
that second question. If a plaintiff wants to seek relief for 
third parties other than itself, or him or herself, there is a 
class action mechanism for that. So, it is almost a non 
sequitur for a plaintiff to bring a nonclass case and then a 
court at the end to be deciding whether or not it should grant 
class-wide relief. The Supreme Court has repeatedly held----
    Mr. Issa. Even in a class action case you are not 
essentially striking down the underlying regulation or action 
as to parties not in class.
    Mr. Morley. Exactly. You would be providing the relief to 
the plaintiff class, which might be defined broadly as anyone 
adversely affected by that regulation. So, it might be 
equivalent to striking it down for everyone, depending on the 
class definition. But again, that is within the context of rule 
23.
    If I could read you two sentences that the Supreme Court 
has issued. In Doran v. Salem Inn, the Supreme Court held, 
``Neither declaratory nor injunctive relief can directly 
interfere with enforcement of contested statutes or ordinances 
except with respect to the particular Federal plaintiffs.'' So, 
the Supreme Court expressly said there that injunction relief 
should be limited to plaintiffs.
    And then Justice Scalia, in a concurring opinion in Salazar 
v. Buono from 2010. He said, ``A plaintiff cannot sidestep 
Article III's requirements by combining a request for 
injunctive relief for which he has standing with a request for 
injunctive relief for which he lacks standing.''
    So, the simple fact that the plaintiff might be entitled to 
an injunction and might have Article III standing for himself 
does not allow courts to go on and ask that second question.
    So I would join with Professor Bray's advocacy against 
having courts ask that second question and, if necessary, pass 
legislation to prevent them from doing so.
    Mr. Issa. Good.
    Mr. Nadler. Professor Morley, if the Supreme Court said 
that, why do we have this problem now? Why do we still have 
these nationwide injunctions?
    Mr. Morley. In part, because most of the nationwide 
injunctions have not yet been fully litigated on the merits 
before the Supreme Court. It might very well that in several 
years the Court will have an opportunity to directly and 
squarely address the merits and several years from now the 
Court might issue a ruling reaffirming these cases and 
enjoining nationwide injunctions.
    Mr. Nadler. So basically because since that case, or since 
we started getting these nationwide injunctions, they have not 
gone onto the Supreme Court is what you are saying?
    Mr. Morley. We have seen requests for emergency relief, we 
have seen requests in the context of interim relief, but a full 
final ruling on the merits----
    Mr. Nadler. Okay. Could Professor Frost comment on that?
    Ms. Frost. Well, I mean, he was quoting from a Supreme 
Court case that seems to support that position. I mean, I can 
quote from Califano v. Yamasaki where the Court said, 
``Consistent with principles of equity jurisprudence, the scope 
of injunctive relief is dictated by the extent of the violation 
established, not by the extent of the plaintiff class.'' That 
was a case about a class action, but the principle here is the 
remedy goes beyond the class, and they have said that.
    Mr. Nadler. Thank you.
    Mr. Issa. I guess I will close with one final question for 
the record, and I would love to have your follow-up answers. It 
is clear that the administrations of both parties' overreach. 
My distinguished colleague found out that apparently that goes 
back to the 1700s and a king no longer named in the United 
States. That is not unusual. That, in fact, one in power seeks 
power and interprets the broadest possible interpretation of 
their power.
    And the cases that we have talked about here today, by both 
parties' Presidents, represent a belief by the executive branch 
that they have authority broader than at least some Federal 
judges believe they have. And that is a fair statement.
    As a result, the real question I leave you with today and 
would ask you to give me your input and we may have a follow-up 
hearing is relieving one of the actual overreach of the 
President, or any portion of his administration, beyond the 
scope of one plaintiff should be a reasonable goal that 
Congress should have.
    One should not assume that once there is a potential 
recognition that there are multiple errors, you should not have 
to litigate, and litigate, and litigate all the way to the 
Supreme Court if the underlying question is: is that regulation 
wrong or overly broad?
    Since Congress could give itself standing and the court 
might debate that, even after we give it to ourselves, the 
question would be how do we, within the structure of the 
Constitution, draw a statute that provides to some party, 
whether it is Congress, or a damaged individual, or any citizen 
of the United States, the ability to contest the underlying 
principle of the overreach?
    And I will give you the example. If you find, for example, 
in this Committee's jurisdiction a patent that claims that it 
invented sunshine, you can go to the PTO and you can seek 
redress, even if you are not a party, and say it is just overly 
broad, obvious, and so on. We have done that.
    We do not have the equivalent in the case of a regulation 
that may broadly injure everyone, but you cannot get standing; 
and it is vexing for this committee. It is vexing for Members 
of Congress on both sides. And so, since we have a difference 
of opinion on some part of it, the resolution would be finding 
a way, with or without an individual, to figure out how to roll 
back decisions.
    And we have been talking about executive orders up until 
now, but obviously we have been talking around the questions of 
a preponderance of regulations interpretations guidance that 
often nobody in the White House even knows exists until it 
comes to their attention well into the lawsuit.
    Mr. Bray. I think there should be legislation prohibiting 
national injunctions, step one. And I think you have got your 
finger on what is, for me, the strongest argument for the 
national injunction. But there is a kind of disarmament of the 
courts when the executive goes beyond the authority the 
executive is supposed to constitutionally have.
    Maybe then we want a lot of courts to go beyond the 
constitutional authority they have under Article III with the 
judicial power. Kind of equilibrium adjustment. I do not buy 
it, though. I think it is two wrongs make a right, and I think 
that is a separate issue that Congress should take up in 
separate legislation about the power of the administrative 
agencies.
    I would add two final points on this. One is there have 
been cases of executive overreach before, including in some of 
the cases in the New Deal that were struck down, and some of 
the statutes that were stuck down, and the system of deciding 
one case at a time worked.
    The last point I would make is that our system does not get 
at the principle all by itself. It only gets there through 
cases. There is some imperfection to this. It is not as clean. 
It is not as neat. It is not as crisp. But it is part of the 
human fallibility of a system with lots of judges, with State 
and Federal courts, that there is going to be some messiness, 
and this is the best we have come up with and it is a second-
best world, and it works pretty well.
    Mr. Issa. Well, I want to thank you all for this today. We 
will go no further on commenting on 680 Federal judges and 
their individual powers for today, but please feel free--we 
will hold the record open for 5 days--but accept beyond that 
any input you have for the committee on a bipartisan basis. 
With that, we stand adjourned.
    [Whereupon, at 3:35 p.m., the subcommittee was adjourned.]