Increasingly, judges at the lowest level of the U.S. legal system are determining which laws can be enforced.
The four judges assigned to the United States District Court for the District of Hawaii — three if you exclude a currently vacant seat — have jurisdiction over less than one half of one percent of the American population. Yet just one of them, Derrick Watson, was able to prevent President Trump’s revised travel ban from being applied across the nation. The previous iteration of the travel ban had been stymied by the United States District Court for the Western District of Washington, which encompasses such diverse corners of America as foggy, liberal Olympia and misty, liberal Seattle.
The district courts sit at the lowest level of the federal court system. District court decisions can be reviewed by the thirteen courts of appeals, twelve of which correspond to geographic regions and one of which handles patents and a few other matters of administrative law. The Supreme Court is the only entity that can, if it so chooses, review circuit-court decisions. Yet, although the district court is the lowest rung of the federal courts, it has had an outsize influence on American law of late. No fewer than seven district courts have independently issued some sort of nationwide injunction or restraining order relating to Trump’s travel ban: Hawaii, the Western District of Washington, the Eastern District of New York, Massachusetts, the Central District of California, the Eastern District of Michigan, and Maryland.
Such injunctions are a bipartisan phenomenon, of course: It was the Southern District of Texas that initially prevented Obama’s executive orders on immigration from going into effect in 2015 and, the following year, the Northern District of Texas that prohibited the United States government from enforcing the notorious “Dear Colleague” letter, which would have mandated that private universities respond in certain ways to allegations of sexual assault.
In short, it is increasingly the district courts that are determining whether certain laws can be enforced. And this is a problem.
For one thing, since there are dozens of district courts (94 including the territories), there is little assurance that any particular court will fall within the mainstream of American jurisprudence. Forum-shopping plaintiffs can and do seek out districts that are known to be particularly liberal or conservative: Conservative activists tended to file suit against the Obama administration in district courts in Texas, while liberals are litigating against Trump on the West Coast. Worse still, as Samuel Bray notes in a paper on the issue, it has become increasingly possible that district courts will deliver mutually inconsistent injunctions: There was a brief period where it seemed that a district court in New York might order the federal government to ignore the Southern District of Texas’s injunction on Obama’s immigration orders. There is little consistent doctrine of how such thorny jurisdictional questions should be answered.
Nor is there any unavoidable need for federal injunctions. According to Bray, “there seem to have been no national injunctions against federal defendants for at least the first century and a half of the United States”; rather, the district courts gradually came around to the position in the late 20th century that they had the responsibility of enjoining a law everywhere if they found it unconstitutional. But even in the Trump travel-ban case, some courts have chosen to act more conservatively: The Eastern District of Virginia, for instance, restrained Trump’s order at Dulles International Airport only, and other courts chose to halt the order only with regard to individual plaintiffs.
This is close to the solution that Bray proposes. “A federal court,” says Bray, “should give an injunction that protects the plaintiff vis-à-vis the defendant, wherever the plaintiff and the defendant may happen to be. The injunction should not constrain the defendant’s conduct vis-à–vis non-parties.” For instance, a district court might issue an injunction that would halt Trump’s travel ban for family members of residents of the district, but not for family members of American residents writ large. This would necessarily lead to some disuniformity in the application of American law, but these inconsistencies, which could eventually be resolved by higher courts, would be far preferable to nationwide jurisprudence imposed by the district courts. Indeed, we are already willing to tolerate disuniformity in any number of cases — any time two circuit courts, for instance, come to differing conclusions.
Sadly, it seems unlikely that the districts will adopt this model of restraint. Justice Thomas predicted that the Supreme Court’s partial stay of the district injunctions would invite a “flood of litigation” and advocacy groups have eagerly concurred with his assessment. If they’re right, the temptation for district judges to make a name for themselves by unilaterally interpreting the law for the entire nation will remain overwhelming. And that would be bad news for everyone.