In recent times, plaintiffs are increasingly choosing to wage multiple legal battles against new federal regulations, rather than focusing on a single lawsuit. This multi-pronged approach allows for multiple chances at convincing a judiciary to halt the implementation of potentially controversial regulations. This approach has been implemented by both Democrat and Republican attorneys general, as observed in the diffused challenges against the Biden administration’s new Title IX regulations Alabama, Louisiana, Kentucky, and Texas and against the Trump administration’s decision to rescind the Deferred Action for Childhood Arrivals program in New York and California.
This trend of multi-faceted legal challenges is a growing concern for the federal government as they not only delay regulations, but also burden the government with multiple lawsuits — all at the cost of taxpayers. At present, there are no effective mechanisms in place to prevent plaintiffs from pursuing such numerous and dispersed suits against federal regulations.
The Multidistrict Litigation Act of 1968 allows a panel of federal judges to consolidate pretrial proceedings if it determines the move will promote a more effective conduct of actions. However, even this mechanism lacks the authority to consolidate cases based on common questions of law.
One potential solution to this issue of universal injunctions and the resultant wave of multiple challenges could lie in a lottery system. Under such a system, which would be overseen by Congress or the Supreme Court, a lottery would determine which federal court hears a challenge to a federal regulation when multiple suits have been filed. Similar to the process deciding validity of the Covid-19 vaccinate-or-test regulations confirmed by a lottery for the Cincinnati, Ohio-based federal appeals court.
However, this lottery system can only be employed when Congress provides for a direct review of regulation in the federal appeals courts, which is not yet a common occurrence. As it stands now, the universal injunctions and subsequent multiple challenges seem to be a persisting situation.
Irrespective of these challenges, such a lottery system could significantly contribute in consolidating regulatory challenges, lower the burden on both federal and state taxpayers, establish a more just provisional legal dispute resolution, and steer public officials towards more non-duplicative efforts. However, until legislators or the courts address the issue of universal injunctions, the legal landscape will likely continue to see multiple challenges and duplicative lawsuits, compromising the efficiency and justice of dispute resolution.
Written by Ryan H. Nelson, a law professor specializing in civil procedure at South Texas College of Law Houston, the original article gives a detailed explanation of this issue.