There is widespread concern that it has become too easy for ideologically motivated plaintiffs–such as state attorneys general of the opposite party of the sitting president–to seek and obtain nationwide injunctions against federal policies they oppose by selecting the right district court in which to file the suit. Thus conservative plaintiffs file suit in single-judge divisions in Texas, while liberal plaintiffs file suit in uniformly liberal divisions in California. Such forum shopping can increase the likelihood of obtaining a favorable judgment and, with increasing frequency over the past decade, an injunction that halts a federal policy nationwide.
One way Congress could address this is by enacting legislation requiring that suits that seek such relief be filed in particular places. Under the Clean Air Act, for example, suits challenging regulations of nationwide scope and application generally must be filed in the U.S. Court of Appeals for the D.C. Circuit, whereas suits against more localized decisions (such as individual permits or state implementation plans) get filed in the relevant district courts.
In a Bloomberg essay, Professor Alan Morrison suggests another potential fix: Requiring suits that seek nationwide injunctive relief against the federal government to go before three-judge panels. This approach is used for some other types of litigation, such as some election-related lawsuits, and used to be required for suits seeking to enjoin federal laws on constitutional grounds. Morrison thinks it might also make sense here.
