Challenges to nationwide injunctions

 By Albert DeSimone

Nationwide injunctions—court orders against the government that prevent it from implementing a challenged law—allow a district judge to issue decisions that are effective throughout the country. These injunctions have increased during the Obama and Bush presidencies, and ballooned under the Trump administrations. 

Nationwide injunctions have their supporters and their detractors. Having a single district judge (out of 667) issue an injunction can expedite the process. At the same time, however, allowing the plaintiff to choose, with few restrictions, the district often results in forum

Judges are known to be liberal or conservative, so the plaintiff can select accordingly. The mifepristone abortion drug injunction was issued by a conservative justice in Texas. The injunction on birthright citizenship was delivered by a liberal judge in Maryland. 

So how often are nationwide injunctions issued? A study by Harvard Law Review found that 6 nationwide injunctions were issued under George W. Bush, 12 under Barack Obama, 64 under Donald Trump (first term), and 14 under Joe Biden. 

Trump has already added 25 injunctions to his tally in his second term, with certainly more to come.  

Nationwide injunctions have become so prevalent during the Trump administration that a relatively benign process in the past has become a news item. Birthright citizenship, deportations, and transgender rights are among the most controversial. 

And, of course, we know whom to thank. With each direct, hard constitutional challenge from Trump there is an equally hard pushback from the judiciary, either stopping or slowing that challenge. 

Trump’s actions and the courts’ reactions have resulted in a legal battle testing the existence of nationwide injunctions. 

The No Rogue Rulings Act of 2025 (NORRA) proposes to place nationwide injunctions in the hands of a three-judge panel instead of a single judge. NORRA has passed the House and is awaiting action in the Senate. 

The Supreme Court has held hearings on nationwide injunctions related to Trump’s executive order on birthright citizenship. They are presently deferring to Congress and NORRA. 

The One Big Beautiful Bill takes its own shot at nationwide injunctions in Section 70302, but in a less direct way. 

Currently, a plaintiff doesn’t have to pay a surety bond when filing suit against the federal government. NPR, for example, recently filed suit against Trump for his withdrawal of funds that support the network. The bond is waived by the court because filing a lawsuit suit  the government should not be limited to those with the funds to pay. 

Section 70302 would require a bond to be paid. If a bond is not paid, the defendant (federal government) cannot be held in contempt. In simple terms: no skin in the game (bond), no binding injunction. 

Nationwide injunctions in their current form may not be perfect; however, they are necessary. They allow the judicial system to respond quickly to overreaching executive actions that often bypass Congress. 

The judiciary often plays the role of mediator between the executive and legislative branches. I believe that role is best served by the status quo. 

Albert DeSimone is a resident of Bishop