Nationwide injunctions foreclose such statesmanlike “departmentalism.” If courts had the power to issue nationwide injunctions (something unthinkable in 1857), a single slavery-supporting district judge could have enjoined the Missouri Compromise itself and the application of any laws and practices (like granting passports and patents) to any black people anywhere in America or its territories.
Supreme Court Justices Clarence Thomas, Elena Kagan, and Neil Gorsuch have expressed disapproval of nationwide injunctions, but the Court has refused either to endorse or forbid their use in any of its opinions.
Professor Foley argues, therefore, that the Court can solve the issue without an opinion. It could amend Federal Rule of Civil Procedure 65, which establishes the procedures for issuing preliminary injunctions. She does not provide proposed text, but one assumes it would say something like “any injunction shall be limited to the parties to the case.”