Abstract
Preliminary injunctions against government action have evolved from extraordinary remedies into routine instruments of political contestation, with both Republican and Democratic administrations finding their initiatives halted by nationwide judicial orders. These injunctions serve vital functions in our constitutional system—preventing irreparable harm to fundamental rights and providing necessary checks on executive power in an era of congressional gridlock. Yet their increasing use has generated legitimate institutional concerns, particularly when a single district judge, often selected through strategic forum shopping, can unilaterally suspend national policies of significant importance. This Article examines this tension between the necessary role of nationwide injunctions in protecting constitutional rights and the threat that current practices may pose to judicial legitimacy and consistent governance. The Article evaluates two proposed reforms: requiring substantial security bonds and reviving three-judge district courts for nationwide injunction cases. It demonstrates that increasing bond requirements would create unacceptable financial barriers to judicial review, particularly for vulnerable plaintiffs seeking to vindicate constitutional rights. By contrast, a modernized three-judge court system—structured with targeted jurisdiction, modified appellate review, and technological enhancements—offers a promising institutional solution that addresses judge-shopping concerns without impeding access to justice. Drawing on historical experience and contemporary needs, this Article proposes a balanced approach that preserves the essential function of preliminary injunctions as a check on government overreach while enhancing their deliberative legitimacy and reducing their most partisan applications.
This manuscript is to be published in Volume 63.1 of the Harvard Journal on Legislation and may not be copied without the Journal’s written permission.
Keywords
Preliminary injunction, Constitutional rights, security bond, three-judge district courts
Publication Date
2025
Document Type
Article
Publication Information
63 Harvard Journal on Legislation (forthcoming 2025)
Repository Citation
Robertson, Cassandra Burke, "Injunctive Restraint" (2025). Faculty Publications. 2326.
https://scholarlycommons.law.case.edu/faculty_publications/2326
