Emory Law Journal


Joseph D. Kmak


The judicial branch’s primary function in a tripartite system of government is to institute checks and balances on the executive and legislative branches by interpreting and applying the law. This command is limited under Article III of the Constitution, which gives federal courts the power to decide only a limited set of cases and controversies. Article III judges are appointed and confirmed with life tenure. This system of life appointments evidences the Framers’ intent to preserve the federal judiciary as a body of insulated, apolitical decision-makers as opposed to a third political arm of the federal government. For over two centuries, the nation’s judicial system has been a revered institution of law and order, maintaining the public’s confidence in the administration of justice. The recent and increasing use of nationwide injunctions, which implement expansive theories of state standing and equitable power, puts this notion in jeopardy. In the context of nationwide injunctions, state attorneys general are forum shopping to bring suits to the most sympathetic ears. In doing so, state attorneys general have asserted attenuated forms of standing to have their cases heard. Because these state actors are specifically seeking out the most favorable district court, they are in a greater position to find a court willing to expand the limits of standing and equity to hear their case. The idea that an injunction should be a primary means of seeking redress is a relatively new development advanced in a sharply divided political climate. To preserve and protect the role of the judicial branch, some measures must be taken to dissuade state actors and federal courts from abusing the judicial power. This Comment explores how the traditional limitations of standing and equity are being vastly expanded by recent nationwide injunctions. Much of the blame for this expansion rests on individual state attorneys general and sympathetic district judges. In identifying these individuals as the root cause of such expansion, this Comment specifically tailors a solution by advocating for federal legislation that places limitations on district courts hearing cases initiated by state actors seeking nationwide injunctions.

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