When District Judges Try to Run the Country
By issuing a ‘nationwide injunction,’ a lone jurist can dictate federal policy far beyond his jurisdiction.
A simulated Iranian passport stands at a protest of President Trump's travel ban in front of the Supreme Court in Washington,
April 25. Photo: Mark Wilson/Getty Images
By Jason L. Riley
When a federal district court in Texas issued a nationwide injunction in 2015 that halted the implementation of President Obama’s amnesty program for illegal-alien parents of U.S. citizens, many on the political right cheered. Two years later, when a federal district court in Maryland issued a nationwide injunction that blocked President Trump’s efforts to place restrictions on transgender people serving in the military, it was the left’s turn to celebrate.
In recent years national injunctions have somehow become all the rage, even though it’s not clear they are constitutional. Traditionally, an injunction requires the parties in a case—and only those individuals—to continue or cease particular actions. What makes national injunctions distinct and controversial is that they apply to people who are not parties in the case. And state attorneys general now regularly use them as political cudgels to thwart the implementation of federal policy not just in their respective states, but everywhere.
The Trump administration, for example, has tried to withhold funding from “sanctuary” cities that refuse to assist the federal government with immigration enforcement. After Chicago sued, a federal judge in the Northern District of Illinois not only issued an injunction but said it applied to other cities all over the country, which are not parties in the case.
The issue here is not the wisdom or silliness of a given federal policy. The bigger concerns are the scope of lower-court judges’ authority and the integrity of the judicial process. Under the Constitution, lower courts are empowered to decide cases for particular parties, not for the whole nation. In his concurrence last month in Trump v. Hawaii, the Supreme Court ruling that upheld the administration’s travel ban, Justice Clarence Thomas expresses skepticism that district courts have the authority to issue national injunctions and urges his colleagues to address this judicial adventurism sooner rather than later.
“These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping and making every case a national emergency for the courts and for the Executive Branch,” Justice Thomas writes. “If their popularity continues, this Court must address their legality.” The same concern is echoed by a growing number of legal scholars, who worry that the national-injunction trend will result in the Supreme Court reviewing hastily considered lower court rulings that never had the chance to work their way up the system.
In testimony last year before the House Judiciary Subcommittee on Courts, Samuel Bray, a professor at Notre Dame Law School, explained that the Supreme Court justices typically wait until there’s a split at the circuit-court level before they decide to hear a case. National injunctions, he said, force the high court “to decide cases faster, with less evidence, with fewer contrary opinions—a recipe for bad judicial decisionmaking.”
As usual, both political parties helped pave the way in getting to this point. Republican state attorneys general obtained nationwide injunctions to stop various Obama administration initiatives. Under President Trump, Democratic attorneys general are using the same playbook. If you’re looking for someone to blame, says Josh Blackman, a professor at South Texas College of Law in Houston, try Congress. “Nationwide injunctions didn’t start with Obama and they didn’t start with Trump. They’ve been around for a while,” Mr. Blackman told me in an interview. “I think they’ve accelerated a lot in recent years because they’re so effective in stopping executive actions.” As Congress has become more fractious, recent presidents have responded by finding ways to bypass legislative gridlock.
Federal judges aren’t inclined to limit their power, and state attorneys general are unlikely to change their behavior on their own, so the situation may worsen before it improves. During the Obama administration, Texas and a coalition of more than 20 other states would find a friendly jurisdiction, file a single case, and take their chances with the judge. Democrats in the Trump era aren’t putting all of their eggs in one basket. Blue state attorneys general are suing in friendly jurisdictions far and wide—Hawaii, California, New York, the District of Columbia—and doing so simultaneously.
What this means in practice is that the Trump administration has no room for error in court. Losing one case could mean the end of the policy, at least until the Supreme Court resolves the matter. The left’s goal is to keep U.S. Attorney General Jeff Sessions and his staff busy complying with national injunctions instead of advancing the president’s agenda. And you can count on the GOP to return the favor the next time a Democrat occupies the White House.
If lawmakers have the will, there is a way to address the abuse of national injunctions via the Federal Rules for Civil Procedure, which are approved by Congress. Barring that, the Supreme Court may have to settle the matter, and we know that at least one justice would welcome the opportunity.