There should be a three-judge panel for national orders

There is widespread concern that ideologically motivated plaintiffs—such as state attorneys general who oppose the current president—have made it easier to seek and obtain nationwide injunctions against federal policies they oppose by choosing the right district court. The case. Thus conservative plaintiffs filed suit in a single-judge division in Texas, while liberal plaintiffs filed suit in a uniformly liberal division in California. Such forum shopping can increase the chances of obtaining a favorable ruling and, with increasing frequency over the past decade, an injunction that halts a federal policy nationwide.

One way Congress could address this is to enact legislation requiring that suits seeking such relief be filed in certain places. Under the Clean Air Act, for example, challenging regulations and petitions of nationwide scope must typically be appealed to the U.S. Courts for the D.C. Circuit, where cases are filed against more local decisions (such as individual permits or state implementation plans). In the concerned district court.

In a Bloomberg article, Professor Alan Morrison suggests another possible solution: requiring cases seeking nationwide injunctive relief against the federal government to go before a three-judge panel. This procedure is used for some other types of cases, such as some election-related cases, and for cases to enjoin federal law. On constitutional grounds. Morrison thinks it might make sense here, too.

From Morrison’s article:

Eliminating forum shopping at the district court level is a much larger and perhaps intractable problem, but Congress could significantly reduce its impact on national injunctions by enacting a statute—providing that any injunction against a federal agency or officer may not benefit any person outside of the named plaintiff. unless it is by a three-judge district court, including at least one circuit judge.

Under that statute, a plaintiff seeking relief for others must include in the complaint a request for a three-judge court, and the district judge to whom such a case was assigned would have no authority to issue any such order on his own. Relief outside named plaintiffs.

The statute should also state that further review of the grant or denial of a preliminary or permanent national injunction shall be by a writ of certiorari to the Supreme Court, filed within 30 days of the order to review. . . .

Under the proposed law, forum shopping would continue and opponents of the Biden administration’s actions would likely file in the Fifth Circuit, just as those who disagree with the Trump administration often choose the Ninth Circuit.

The biggest change would be that the law would require two judges to issue an injunction that extends beyond the immediate party.

The Act would also be consistent with many federal laws that provide for direct review of an agency’s final rule by an appellate court, where a stay may be issued only by at least two members of a three-judge panel.

The details need to be worked out, but the first step is to recognize that the Supreme Court will not and cannot resolve this issue. Congress must begin to address this directly by enacting mandatory three-judge court legislation for the national mandate.

I’m sure there are some non-obvious downsides to this approach, but it seems like a proposal that deserves serious consideration.