Should there be three-judge panels for national bans?

There is widespread concern that it has become too easy for ideologically motivated plaintiffs—such as attorneys general opposing the current president—to seek and obtain national injunctions against federal policies they oppose by choosing the right district court in which to file a suit. Thus, conservative plaintiffs file suit in single-judge divisions in Texas, while liberal plaintiffs file suit in equally liberal divisions in California. Such forum-seeking can increase the likelihood of obtaining a favorable ruling and, increasingly in the past decade, an injunction that halts federal policy nationwide.

One way Congress could address this is to pass legislation requiring that lawsuits seeking such relief be filed in certain locations. Under the Clean Air Act, for example, lawsuits challenging statewide regulations and enforcement generally must be filed with the U.S. Court of Appeals for the D.C. Circuit, while lawsuits challenging more localized decisions (such as individual permits or state implementation plans) are filed in the competent district courts.

In a Bloomberg essay, Professor Alan Morrison suggests another potential solution: requiring lawsuits seeking a national injunction 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 was once required for lawsuits seeking enforcement of federal laws. on a constitutional basis. 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 can greatly reduce its effects on national injunctions by enacting a statute—provided that no injunction against a federal agency or officer may benefit any person other than the named plaintiffs unless a district court of three judges, which includes at least one district judge.

Under that statute, a plaintiff seeking relief for others would have to include a request for a three-judge court in the complaint, and the district judge assigned such a case would not have the authority to issue any form of injunctive relief on his own outside of the named plaintiff.

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

Under the proposed statute, forum shopping would continue, and opponents of the Biden administration’s actions would likely apply to the Fifth Circuit, just as those who disagreed with the Trump administration have often chosen the Ninth Circuit.

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

This statute would also be consistent with many federal laws that provide for direct review of a final agency decision in the appellate courts, where a stay can only be issued by at least two members of a three-judge panel.

The details need to be worked out, but the first step is to understand that the Supreme Court will not and cannot solve this problem. Congress needs to start dealing with it head on, hopefully by passing mandatory three-judge legislation for national bans.

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

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