Immigration Litigation: Nationwide Injunctions

You may have seen recent headlines stating that executive actions have been blocked by a federal judge. For instance, on February 25, a federal judge in Seattle blocked parts of an executive order indefinitely suspending the U.S. Refugee Admissions Program (USRAP), and on April 14, a federal judge in Boston blocked the Department of Homeland Security’s (DHS) efforts to prematurely strip Cuban, Haitian, Nicaraguan, and Venezuelan humanitarian parolees of the right to be legally present in the United States.

These judicial orders are called “preliminary injunctions.” An injunction is an order that requires someone to take or refrain from a particular action. Injunctions issued before the final resolution of a lawsuit are called “preliminary injunctions.” Preliminary injunctions are temporary in nature and meant to hold the status quo for the duration of the lawsuit. In Pacito v. Trump, the February 25 preliminary injunction ordered the Department of State, the Department of Homeland Security, and the Department of Health and Human Services to resume refugee admissions and processing. The preliminary injunction sought to preserve the status quo, to ensure that refugees were not stranded abroad and that refugee organizations could stay operational to serve them, until the court could determine whether the indefinite suspension was lawful.

The preliminary injunctions in these cases were not limited in impact to the individuals who sued the Government, nor were the effects limited to Seattle or Boston. These injunctions had effect nationwide because they were meant to benefit an entire category of individuals (or, “class”). Because of the nationwide scope, these preliminary injunctions are called “nationwide injunctions.”

Plaintiff: A Plaintiff is an individual or organization who initiates the lawsuit. They file the Complaint, detailing why they believe Defendant(s)’s conduct is unlawful.

Defendant: A Defendant is an individual or organization who is defending against lawsuit because they are accused by Plaintiff of unlawful conduct. In lawsuits challenging executive actions, the Defendant is usually a governmental agency tasked with enforcing and implementing the President’s policy.

Why Are Nationwide Injunctions Controversial?

Many people might wonder why a single federal judge has the power to nullify a presidential action. The President is voted into office via U.S. electoral processes. A federal judge is not elected. Instead, they are appointed to their lifetime position by a president and confirmed by the Senate.

According to a Harvard Law Review study, there were 127 injunctions issued from 1963 to 2023. The data also shows a correlation between injunctions and judicial appointments. About 92 percent of injunctions against the policies of the 45th President, a Republican, were issued by judges appointed by Democratic presidents. All the injunctions against the policies of the 46th President, a Democrat, were issued by judges appointed by Republican presidents. And of those 14 lawsuits, over half were strategically filed in district courts in Texas, where most judges were appointed by Republican presidents.

Critics often cite strategic filings (aka “forum-shopping”) as a reason why nationwide injunctions should be abolished. Simply put, they argue that plaintiffs who want to challenge an executive action will strategically choose to file in a court where their case is more likely to be assigned to a judge who will be politically motivated to rule against the president. Critics also argue that nationwide injunctions halt the development of law, encourage bad decision making, overstep judicial power, and provide a short-cut to class actions.

But nationwide injunctions can be useful. When Congress is deadlocked, action by the federal courts can be the only stopgap against unconstitutional executive action. Although it may seem wrong to empower one federal judge, a judge is an actor of the judiciary branch—one of the three separate but equal branches of the United States. And one of the major responsibilities of the judiciary branch is to review the constitutionality of laws and policies.

Also, the reality is that nationwide injunctions are sought by plaintiffs—who must be able to articulate a particular injury and meet jurisdictional requirements to bring the lawsuit—and issued only after defendants have an opportunity to argue against them. In immigration litigation, plaintiffs are often individuals who risk being stranded overseas, losing lawful status, and suffering irreparable harm.

Federal judges have to consider whether injunctions can be limited in scope. Yet, granting complete relief in immigration cases often means blocking the entire executive order or action. Legal scholars also note that nationwide injunctions promote judicial efficiency and uniformity. If district courts were to limit their injunctions to their judicial district, harmed individuals would have to file multiple lawsuits around the country, racking up the costs for plaintiffs, defendants, and the federal courts.

Consider two current examples. In legal challenges against Presidential Proclamation 10903 (invoking the Alien Enemies Act), the Supreme Court ruled that individuals have to launch their own challenges in each district court. As a result, there are at least eleven district courts hearing individual or class action cases. In contrast, plaintiffs challenging Executive Order 14165 (announcing changes to humanitarian parole programs) have one pending class action in the District of Massachusetts.

District Court: The federal court system is tiered. There are 94 federal district courts, which are divided by geographic location. District courts receive the initial complaint and hold trials. Appeals from district courts go to circuit courts. Appeals from circuit courts may be considered by the U.S. Supreme Court.

District courts are independent from each other, meaning that one district court is not bound to make their order consistent with another district court.

Case Example: Alien Enemies Act

In legal challenges against Proclamation 10903, separate district courts have issued their own preliminary injunctions with different conditions and parameters. In the District of Colorado and the Southern District of New York, judges have issued similar but not identical preliminary injunctions against the Government.

Also, in the Western District of Pennsylvania, the court decertified a class of noncitizens in custody and granted a preliminary injunction only for the individual who filed the complaint. Compare that to the District of Colorado, which entered final judgment ruling that the Proclamation was unlawful and issued a permanent injunction for class members, prohibiting the Government from removing class members.

Case Example: CHNV Humanitarian Parole

In the lawsuit challenging Executive Order 14165 (announcing changes to humanitarian parole programs), one court has considered preliminary injunctions for a broad range of humanitarian parole programs, including the Cuban, Haitian, Nicaraguan, and Venezuelan (CHNV) humanitarian parole program, Uniting for Ukraine (U4U) humanitarian parole, Central American Minors (CAM) humanitarian parole, and other family unification parole programs, including those for U.S. military service members. On April 14, the court issued a “stay” on DHS’s effort to truncate en masse CHNV humanitarian parole periods so that humanitarian parolees could stay in the United States legally while the court case was pending. The stay had nationwide effect because humanitarian parolees live throughout the United States, not just in the court’s district.

Although the stay offered hope of relief, this path can also backfire. The Government appealed the stay to the First Circuit Court of Appeals, then launched an emergency application to the U.S. Supreme Court.

Because the stay was issued by one district court, the U.S. Supreme Court did not have the benefit of multiple courts weighing in on this issue or a well-developed factual record on how the executive order impacts real people. And this was a novel issue—no Administration has tried to truncate en masse humanitarian parole periods for beneficiaries of a categorical parole program. On May 30, the U.S. Supreme Court issued a one-paragraph order overruling the district court and nullifying the stay. The order is causing chaos and confusion for CHNV humanitarian parolees and their loved ones, who are bracing for enforcement and unsure of how implementation will unfold.

Looking Ahead

In immigration litigation, nationwide injunctions can promote efficiency and consistency. But, as we have seen in the CHNV humanitarian parole lawsuit, there are downsides. Both political sides have critiqued nationwide injunctions, and many lawmakers and experts have suggested limitations.

On May 15, the Supreme Court heard arguments on nationwide injunctions—on their scope and constitutionality. And if major changes are announced, the ruling will have impacts on all pending immigration litigation and the people whose rights are at risk.