By: Richard J. Pierce, Jr.*
Abstract
In this Article, Professor Pierce discusses two related problems that the Supreme Court must address: (1) the large increase in nationwide preliminary injunctions issued by district judges to prohibit the executive branch from implementing major federal actions; and (2) the large increase in the number of cases in which the Supreme Court either stays or refuses to stay preliminary injunctions without providing an adequate explanation for its action. He first describes the sources of the two problems and the many ways in which they threaten our system of justice. He then urges the Court to issue an opinion in which it provides a clear legal framework that district courts, circuit courts, and the Supreme Court itself can use to identify the unusual circumstances in which a district court should issue a preliminary injunction that prohibits the executive branch from implementing an action.
* Lyle T. Alverson Professor of Law, George Washington University. I am grateful to the Center for the Study of the Administrative State for providing financial support for this paper and to the participants in a workshop at the Center for providing helpful comments on an earlier version of this Article. I am also grateful to my research assistant, Priyanka Mara, for providing valuable help on this project.