It would be simpler, faster, and final for the Supreme Court to end nationwide injunctions with an opinion. But the Court has not done that, which tells us that the problem is not the lack of a way, but the lack of will. Can Professor Foley’s proposed amendment energize a languid will? We do not know. But what we do know is that lower courts are imposing nationwide injunctions swiftly and with shockingly little consideration of their authority to do so. Their embarrassing haste, the resulting disruption it makes on the Court’s emergency docket, and the inevitable vigorous dissents from Justices Thomas and Gorsuch against any decision to dodge the issue will all increase the pressure on the majority to act.
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