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Statement of Ranking Member Nadler for the Markup of H.R. 6730, the So-Called Injunctive Authority Clarification Act

Sep 13, 2018

Washington, D.C. – Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following opening remarks during a Judiciary Committee markup of H.R. 6730, the so-called Injunctive Authority Clarification Act:

“Mr. Chairman, H.R. 6730, the so-called ‘Injunctive Authority Clarification Act,’ should instead be called the ‘Injunctive Authority Uncertainty Act’ because this bill would inject confusion and needless barriers to relief into the legal system.

“The stated goal of this measure is to ban nationwide injunctions, which are a sometimes imperfect, but often essential, equitable remedy in the federal courts.  When the federal government acts in violation of the Constitution, or breaks the law on a national scale, a nationwide injunction may be the only logical and fair remedy.

“The courts should certainly exercise caution and care when determining the proper scope of an injunction.  But to prohibit nationwide injunctions in every circumstance, as this bill would do, is a gross overreaction to whatever perceived flaws this legal remedy  may have.

“Whenever a district court issues a nationwide injunction blocking a federal government policy, the quotes in the next day’s newspapers are all too predictable.  Opponents of that policy will hail the decision as reasonable and necessary, while supporters of the policy will claim it was a vast overreach by a single activist federal judge.  When the party in power changes hands, and the roles are reversed, those who once decried the use of nationwide injunctions will suddenly see the virtues of such a remedy.  And those who supported its use previously will now consider it a fatally flawed travesty of justice.

“With President Trump and his, often lawless, Administration in office, it is no surprise that the Republican Majority now seeks to prohibit nationwide injunctions, which are preventing some of the President’s most legally questionable policies from coming into effect, even if they fostered and cheered such injunctions when President Obama was in office.

“Nationwide injunctions are not appropriate in all circumstances, and there are good reasons for courts to act cautiously before issuing such a broad remedy.  But, we should not completely dismantle this important tool, and risk depriving Americans of the justice they deserve.

“If all this bill did was to ban nationwide injunctions, that would be bad enough.  It appears to be much broader, however, and potentially much more dangerous to the rule of law.  The bill would confine the relief granted by any injunction against a government law, regulation, or order to the parties represented in the case.

“While this may sound logical at first glance, consider the implications of this policy.  If a jurisdiction enacted an unconstitutional infringement on the right to vote, and an individual successfully enjoined enforcement of that law in court, this bill would prevent a court from protecting anyone but the individual who challenged the law.  Every other affected voter could be forced to bring their own lawsuit challenging the law as it pertains to them.

“This would unleash a flood of duplicative litigation, as each affected individual would be forced to seek relief in court.  It would also be manifestly unjust, since those without the resources to file a lawsuit might have no recourse against a clearly unconstitutional law.

“Should every mother whose child was ripped from her arms because of President Trump’s family separation policy have been forced to bring her own individual lawsuit to stop this unconscionable policy?  Is that really the intention of this bill?

“Although the bill protects class action lawsuits from these extreme and dangerous requirements,  class certification is a time-consuming, burdensome, and expensive process—thanks, in part, to the efforts of the Majority, who have worked tirelessly to build hurdles to class action relief.  For all practical purposes, this protection would ring hollow for millions of Americans. 

“Perhaps it is not the Majority’s intention to so thoroughly restrict access to justice under this bill.  Perhaps there is a better reading of the bill than how I interpret it.  All of these questions could be raised in a legislative hearing on this proposal.  All of us could benefit from soliciting the input of a variety of stakeholders and practitioners who could explain the likely effect of this bill. 

“But we have done none of that.  The Courts Subcommittee held a hearing on the issue of nationwide injunctions generally, but it did not consider this proposal in depth.  We were handed this bill mere days ago, and we are, once again, rushing it to markup, for no discernable reason. 

“We ought to take our time and consider this issue thoughtfully.”

115th Congress