Thoughts on nationwide injunctions

Too many people forget that sometimes the other side is in charge

Donald Trump and his minions are upset with the raft of nationwide injunctions issued by federal district courts (the lowest level of federal courts) against many of his policies and executive orders.

Obviously I understand they frustration: they want to do stuff and the courts are saying, “Hold on for a minute; we need to figure out if what you’re doing is OK.”

I also note that I think some of these courts are issuing injunctions against policies or proposed actions that are VERY like to be constitutional. Just stuff the left doesn’t like, such as almost anything that shrinks the size and cost of the federal government.

These injunctions were the primary subject of Thursday’s Supreme Court hearing that was nominally about birthright citizenship but really about the powers of lower federal courts.

From the excellent SCOTUSblog: No clear decision emerges from arguments on judges’ power to block Trump’s birthright citizenship order - SCOTUSblog

There is a real question of law about whether district courts issuing nationwide injunctions exceeds their authority. That’s certainly the claim by the Trump administration’s Solicitor General, John Sauer.

There was also a debate among the justices about the history of nationwide or “universal” injunctions. As a constitutional-law nerd (though not a lawyer), I love reading and thinking about these questions.

I’m part of a group of folks who regularly get together to talk about politics and economics and current events and one of our group recently sent a note to the group that included this: “Congress creates Federal Judges and courts. And thereby attempts to infringe the Executive through nationwide injunctions by these Federal Judges. Only SCOTUS has the power to interpret and judge the Executive.”

I wrote a detailed reply that I offer for your consideration:

Yes, Congress creates “inferior (federal) courts” but that is a Constitutional role for Congress, explicitly stated in Article III. It is absolutely incorrect to say that only the Supreme Court has the right of judicial review. Actually, even judicial review itself is, to a degree, a creation of the Supreme Court, but whatever role any federal court has, they all have, except to the extent of some courts being superior to others for purposes of appeal. Indeed, the Constitution says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In other words, whatever the judicial power is, all the federal courts have it.

And if it’s the role for the federal judiciary to interpret the law and stop illegal acts by other branches of government, then even the lower federal courts have that right.

It can’t be the case that all nationwide injunctions by lower courts are improper. Imagine the outcome if that were the case. Everyone’s thinking about this in terms of Trump but shouldn’t. What if a lower court ruled against Biden’s illegal reallocation of student debt to taxpayers but could not issue a nationwide injunction. Then, what? Only the jurisdiction covered by that district or that Court of Appeals is covered so Biden could still have “canceled” student debt across 99% or 85% of the rest of the country?

Or what about Trump and immigration? Regardless of your view of the policies, it’s a national/federal policy and must either be legal everywhere or illegal everywhere. And if it’s illegal why should they be able to do something in some places that just didn’t happen to have a lawsuit filed?

And should EVERY person whose rights are going to be violated have to hire a lawyer and file his or her own lawsuit? No, that’s nonsense.

Now there should be some guidelines; as to what they are, that’s way above my pay grade. But I think in many cases, nationwide injunctions are reasonable, though when they come from the lowest level of the federal judiciary they should have rather short time limits and then Courts of Appeals should have to move as fast as they can at least to decide on the injunction even if taking a longer to decide on the merits, based on the likelihood of the challenge to the policy being upheld.

If the only choices are “any federal court can issue a nationwide injunction” or “no federal court other than SCOTUS can”, I’ll take the former.

It could be the case that some of the liberal federal judges issuing the injunctions just don’t like Trump or don’t understand or care about the law. But it could also be, and often is (not just now), that these injunctions are the things protecting individual liberty from an overreaching gov’t, esp an overreaching executive.

I realize that federal judges aren’t elected and have life tenure and it does mean we should be wary of their having too much power though overall I fear an overly powerful executive branch even more. There’s a reason that Congress (the legislature) is Article I of the Constitution. That’s where the power should be.

Much of our political trouble stems from the intentional use of executive orders to implement policies that properly should only be created by an act of Congress. (The first one I can think of where a president did something after stating explicitly that he didn’t have the authority to do so was Obama and DACA.) When the president does something that only Congress should be allowed to do, it is proper for the judiciary to stop them. (And with DACA they didn’t, so I’m not claiming the judiciary always gets it right.)

Actually, if we had decent politicians, politicians who upheld their oaths of office, presidents wouldn’t do things that are illegal and Congress would more zealously guard their own powers rather than ceding them to a president so that Congresscritters can wear their fancy little pins and go to all the best cocktail parties and be addressed as “The Honorable” (even if you think they have precious little honor) and never take blame for bad outcomes of bad ideas (or even potential bad outcomes of good ideas.) The president has too much power because Congress has allowed it. And as long as they’re doing so, we can only rely on the judiciary to stop it. I’d rather have an overactive judiciary in this sense than an underactive one. Not a judiciary making law (e.g. Chevron or Roe v Wade) but in telling the president, “Sorry, you can’t do that.”

If the price of preserving the Constitution is a short delay in an administration’s ability to implement a policy, I get that that can be frustrating but it’s better than the alternative. And folks who are grousing about it might ask themselves how they’d like it if these judges were aggressively restrained if the next president is someone like Joe Biden or Kamala Harris or Bernie Sanders and they look to ban gasoline and diesel vehicles by executive order, just to name one of their many bad ideas. Furthermore, maybe it’s actually the case that Trump is doing more illegal things than other presidents have. (Let me be very clear here: he definitely is.) Along, to be sure, with legal things that some liberal judges just don’t like. But in that case, the higher courts will (usually) set it right.

So I’ll offer two cheers for nationwide injunctions while adding that SCOTUS can and should offer guidance to lower courts when such injunctions are appropriate. There have been too many; as we see higher courts overturning lower courts’ injunctions that becomes more obvious. But that doesn’t mean there shouldn’t be any. Sometimes something that seems like an unconstitutional act really is. And stopping those is more important than not briefly inconveniencing a president.