Law & the Courts

Nationwide Injunctions Are a Threat to Our Constitutional Order

Hawaii Attorney General Douglas Chin (right) arrives at the U.S. District Court Ninth Circuit to present his arguments after filing an amended lawsuit against President Donald Trump’s new travel ban in Honolulu, Hawaii, March 15, 2017. (Hugh Gentry/Reuters)
Using nationwide injunctions to shut down elected officials from carrying out our laws effectively silences the people who voted for them.

Editor’s Note: This essay is adapted from a speech given to the Federalist Society’s National Student Symposium on March 10, 2018.

Under our Constitution, Congress writes our laws, the executive branch carries out our laws, and the judiciary applies those laws to cases and controversies.

These branches are coequal. The courts are not superior. On matters of policy, the branches that are directly accountable to the people must be given proper respect. That’s why it’s so alarming that judges are increasingly issuing nationwide injunctions — orders that block the entire federal government from enforcing an executive-branch policy or executing a statute. These injunctions block the government from carrying out a law — not just in one district or to one person, but anywhere in America.

Scholars have not found a single example of any judge issuing that type of extreme remedy in the first 175 years of the Republic. In just over one year in office, President Trump has been hit with 22, more than any other president in our history. And they’re happening on issues that voters care about, like DACA, the travel order, sanctuary cities, and the service of transgender people in the military. Shutting down our elected officials from carrying out our laws effectively silences the people who voted for them.

That’s why it’s not what our courts have traditionally done. For example, in one 1897 case, the Supreme Court found a law unconstitutional and even recognized that many others besides the plaintiff might be entitled to relief. But the Court issued an injunction that only prevented application of the law to the plaintiff. During the New Deal controversies, courts concluded that one new tax was unconstitutional more than 1,600 times. They issued more than 1,600 injunctions — each applying only to the plaintiff in the case.

So why does this matter to non-lawyers? This is a question of who gets to decide the policy questions facing America: Is it our elected representatives, our elected president, or unelected lifetime-appointed federal judges?

Nationwide injunctions mean that each of the more than 600 federal district judges in the United States can freeze a law or regulation throughout the country — regardless of whether the other 599 disagree. That’s a threat to the proper functioning of the federal government for a number of reasons.

First of all, nationwide injunctions encourage forum shopping. There is a reason why so many lawsuits have been filed against the Trump administration in California and Hawaii, and why others were filed against the Obama administration in Texas. Lawyers are looking for the most favorable forum in which to advance their goal of imposing a policy outcome on the country without winning at the ballot box or in the legislature.

Second, nationwide injunctions cut off discussion among the lower courts — a key feature of our legal system that leads to smarter, better decisions.

Third, when a single district judge issues a nationwide injunction while similar cases are pending elsewhere, that overrides the rulings of other judges. For example, a federal judge in Maryland held that the wind-down of the DACA policy was lawful. So even though the plaintiffs in that Maryland case lost, it was as if they won, because judges in San Francisco and New York issued injunctions that stopped the federal government nationwide.

Nationwide injunctions create an absurd situation in which a plaintiff only needs to win once to stop the government from acting — but the government needs to win every time to carry out its policies. That makes governing all but impossible.

The increasing frequency of these limitless injunctions is simply unsustainable, and the increasingly extreme nature of these injunctions is only making it more obvious just how unconstitutional they are.

The Supreme Court has not yet issued a definitive ruling on the merits of nationwide injunctions. So far, when the Court has had relevant cases before them, it has resolved them on other grounds. But I am hopeful that the Supreme Court will soon send a clear message to the lower courts that injunctions ought to be limited to the parties of the case.

This is not a political or a partisan issue. After all, this has been a problem for administrations of both parties. Until President Trump, the President with the most nationwide injunctions was President Obama. Before him, it was President Clinton.

But the Department of Justice — under Democratic and Republican administrations alike — has been consistent over these past several decades that nationwide injunctions gravely threaten the proper respect for separation of powers, and the very functioning of the other two branches of the federal government.

This is my message: We hope the Supreme Court will resolve this issue. There can be no question that courts should put an end to nationwide injunctions and keep activists on both sides of the aisle from paralyzing the federal government.

The American people vote for those other two branches of government. We want our votes to count. Our elected officials need to be able to act.

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