Is the House Bill Forbidding (Most) Nationwide Injunctions Constitutional?

On Wednesday night, the House of Representatives passed the No Rogue Rulings Act (NORRA) of 2025 on a party-line vote: 219 in favor and 213 against. All but one Republican voted for NORRA, and all Democrats voted against it. Below I'll further describe and analyze the bill, but first I want to say a word about the partisan nature of the vote.

NORRA restricts the ability of federal district courts to issue what are sometimes called "nationwide" or "universal" injunctions. Such injunctions are controversial when issued against the government because a single district judge invalidates the action of either all of Congress or the executive branch, not just with respect to the party-plaintiff(s) but with respect to everyone. However, under ordinary rules of claim and issue preclusion, only parties to a case (or those in privity, i.e., some close relationship with a party) can benefit from a court judgment. To be sure, the modern approach allows some non-parties to benefit from a judgment under the doctrine of non-mutual issue preclusion, but that doctrine does not apply in litigation against the government.

If you're not a lawyer (or even if you are) and found the foregoing paragraph too technical, don't worry about it. The important point is that a nationwide injunction allows for broad relief even without the plaintiffs proceeding via a class action. 

Partisan views on the legitimacy of nationwide injunctions tend to depend on which party holds the White House. Democrats support such injunctions when, as now, there is a Republican administration, and oppose them when, as under Presidents Obama and Biden, Republican state attorneys general and allied individuals or groups challenge policies of a Democratic administration. And vice-versa for Republicans. Thus, over the long run, views about nationwide injunctions ought to have no clear ideological valence. Yet the vote was completely partisan. Why?

The most obvious answer, and surely the right answer for the vast majority of House members, is a kind of myopia. They are thinking of the current moment.

For Democrats, that makes perfect sense. Donald Trump and his administration are existential threats to the survival of constitutional democracy in America. Preserving any tool that could stop or even slow the assault on our institutions has to be the top priority for Democrats.

Republicans are also thinking about the current moment, but their position should be more ambivalent. With a conservative super-majority on the Supreme Court, they can count on the Justices wiping out what they regard as the most troublesome nationwide injunctions; meanwhile, they might want to preserve the nationwide injunction for use against future Democratic administrations--unless they think that, given voter suppression, gerrymandering, and the possibility of an outright refusal of Trump or his successor(s) to leave office, there won't be any future Democratic administrations.

So much for speculation about the politics. Let's turn to the substance.

What NORRA Does

NORRA has three main provisions. 

Part (a) forbids federal district courts from issuing nationwide injunctions, subject only to the exception set out in part (b), unless a case is certified as a nationwide class action. Indeed, it goes further. It bans federal district courts from issuing any injunctive relief for the benefit of any non-party (except pursuant to a class action or equivalent).

Part (b) governs some lawsuits by states. If two or more states located in different circuits join together to sue the federal executive branch, NORRA provides that the case should be heard by a three-judge district court instead of a single judge. This used to be the rule for just about all constitutional challenges, but the three-judge district court provision is now applicable in only a handful of categories of cases. NORRA would expand that to include this additional category.

Part (b) allows for a nationwide injunction by a three-judge district court in one of the qualifying multi-state cases, so long as various equitable factors are met. Notably, this could lead to some anomalous results, because the three-judge district court provision and the permissibility of a nationwide injunction are only triggered by the joinder of two states from different circuits.

For example, as I read the plain text of (b), if New Hampshire (1st Circuit) and Vermont (2nd Circuit) together sue the Secretary of Homeland Security in federal district court in Concord, NH, they get a three-judge district court and can get a nationwide injunction. But if Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington together bring the identical action in federal district court in San Francisco, they get a single federal district judge and no possibility of a nationwide injunction because all of those states are in the Ninth Circuit. I don't know whether this anomaly is intentional but it is difficult to come up with a sensible rationale for it.

Part (c) further provides that in cases that qualify for a three-judge panel and a nationwide injunction, there is a right of appeal to the Supreme Court--that is, the Court must hear the case on the merits rather than exercise discretion whether to review the judgment, as when considering petitions for certiorari. Such an appeal is available to the government if an injunction is granted and to the plaintiff states if it is denied. Review by appeal rather than certiorari is the general practice for cases originating in three-judge district courts, although in the years before the Supreme Court's mandatory appellate jurisdiction was reduced, the Court often treated such appeals perfunctorily.

Is NORRA Constitutional?

The assignment of the multi-state cases against the executive branch to three-judge courts is pretty clearly constitutional. Part (b) instructs federal judges to "consider the interest of justice, the risk of irreparable harm to non-parties, and the preservation of the constitutional separation of powers in determining whether to issue" a nationwide injunction, but courts would consider those factors anyway in the exercise of their equitable powers.

But what about cases that don't qualify for nationwide injunctions under part (b)? Can Congress restrict the remedies a federal district court can order?

The answer to that question is complex. Scholars who defend nationwide injunctions offer a variety of rationales that I won't delve deeply into here, but to my mind, the strongest case is one in which an order benefiting non-parties is necessary in order to grant complete relief to the parties themselves.

A good example arose during the first Trump administration in the litigation over the first version of the Muslim travel ban. A federal district judge in Washington State found that the travel ban was unconstitutional in a lawsuit brought by state institutions. E.g., a state university was deprived, in violation of the Establishment Clause, of the opportunity for a visiting scholar of Syrian nationality to come to campus because the scholar couldn't enter the U.S. Many other similar potential entrants would also be denied entry by the travel ban. The judge had to invalidate the travel ban not only at the Seattle airport but nationwide, because someone visiting the University of Washington could enter the U.S. at O'Hare, JFK, Hartsfield-Jackson, or nearly anywhere else. The injunction was broader than the plaintiff-parties in order to provide complete relief to those parties.

I'm probably misremembering some of the details of the events described in the prior paragraph. Moreover, you might disagree with either the merits ruling or with the scope of relief in that particular case. Never mind that. It is undoubtedly true that there are circumstances in which complete relief for the parties requires some relief for non-parties and thus sometimes requires a nationwide injunction.

With respect to cases in which a nationwide injunction is necessary to provide complete relief to the parties, can Congress deprive federal courts of the power to order such an injunction? If the basis for the plaintiffs' claim is statutory, I think the answer is pretty clearly yes. After all, Congress was under no obligation to create the statutory claim in the first place, so one could construe NORRA as a wholesale revision of the U.S. Code that de facto appends to every statute the following: except that you can't enforce this through a nationwide injunction. That's odd but not unprecedented. The Religious Freedom Restoration Act (RFRA) works that way. It adds a religious exception to just about every federal statute.

But what about constitutional claims? Can Congress eliminate a remedy needed to provide complete relief for a constitutional violation? My initial answer is no, but it's complicated by the fact that pursuant to the so-called Madisonian Compromise, Congress was not obligated to create any lower federal courts in the first place. If NORRA was phrased as a limit on federal courts' jurisdiction, therefore, it might be constitutional. However, it's not phrased that way, and there is some authority for the proposition that if a case is in federal court, Congress can't take away a constitutionally required remedy.

Moreover, even if NORRA were phrased as a jurisdictional limit, I'm not sure it would be constitutional. In general, if there's no federal court jurisdiction over some class of claims, even some class of constitutional claims, one can go to state court to vindicate them. But under Tarble's Case and ensuing lower court cases, state courts probably lack the authority to enjoin federal officials. So stripping federal courts of jurisdiction to enter nationwide injunctions in cases in which such injunctions are necessary to effectuate complete relief for a constitutional violation would leave plaintiffs with no court in which to vindicate their rights.

Whether that's constitutional implicates a long-running debate over whether Congress can use its power over the jurisdiction of the federal courts to effectively undercut the Blackstonian maxim that for every right there must be a remedy. My view (following Henry Hart and Larry Sager) is no, but this is a very deep and complex issue. For my analysis of one aspect of it, see my 2018 Texas Law Review article. For a fuller view of the question, enroll in (or go back to) law school and take the Federal Courts class.

Or don't. There's no possibility that NORRA will garner the needed 60 Senate votes for cloture, so these issues will remain hypothetical for now.

-- Michael C. Dorf