Law & the Courts

We Need a National Injunction-Review Law

Abuse of nationwide injunctions by #Resistance judges upends the separation of powers

The issuance by a federal district-court judge in the District of Columbia of an injunction against the Trump administration’s attempt to end the DACA program (for foreign nationals who entered the United States as minors) brings to at least 23 the number of nationwide injunctions issued against the administration. Historically, injunctions against federal-government defendants benefited only the immediate plaintiffs in the lawsuit. There were no nationwide injunctions in the nation’s first 175 years, and even after the first few, for several decades they were rare. However, federal district-court judges have already issued more against the Trump administration than they did during the entire eight-year Obama presidency. This increase is a significant new development in our political system. The power of the over 800 federal district-court judges to dictate national policy can and should be moderated by Congress before the judiciary makes a regular habit of usurping the functions of the executive branch.

Critics such as Attorney General Jeff Sessions point out that this new flood of nationwide injunctions encourages forum shopping, cuts off deliberation on the issue in other courts, and short-circuits the protections of the class-certification process. Furthermore, where there are multiple injunctions against the same executive action, they can create administrative chaos. For example, the District of Columbia court ruling is more far-reaching than the previous pro-DACA injunctions issued by courts in San Francisco and Brooklyn, and they all directly contradict another district court’s ruling that the DACA termination is valid.

Beyond the disruptions caused by local courts’ injunctions claiming national effect lies a constitutional issue. Laws are supposed to be made and carried out by the legislative and executive branches, which are democratically accountable. When unelected, life-tenured federal judges actively interfere with those functions, often with flimsy legal reasoning powered by overheated partisan language, the balance of power between the democratic branches (the legislative and the executive) and the autocratic branch (the judiciary) risks being thrown dangerously out of balance. While we have accepted that the Supreme Court can review the constitutionality of legislative and executive actions, the recent increase in nationwide injunctions has expanded this principle to substitute the judiciary for the executive in carrying out routine government functions.

This should concern Democrats as well as Republicans. While Democratic judges attacking the Trump administration have far outpaced the number of nationwide injunctions issued against the Obama administration, several were nonetheless issued against important Obama programs. Now that the floodgates have been broken open, it is highly likely that nationwide injunctions will become a regular weapon against the next Democratic president.

The Supreme Court is the only court with constitutional status. Under Article III of the Constitution, all other courts are creations of Congress. Thus, Congress has the power to regulate, or even ban, nationwide injunctions. One solution, therefore, is to simply ban nationwide injunctions and limit the judges’ authority to the geography of their judicial district. However, this would not really address the problem. While it is absurd for one lower-court judge to presume to control the entire federal government and all Americans, there is a legitimate interest in the uniform enforcement of nationwide laws and regulations. Limiting injunctions to the judge’s geographic district would create “holes” in the administration of national laws. For example, if a federal district judge in Hawaii enjoined the enforcement of a restriction on entry of travelers from certain countries, even though that injunction applied only to Hawaii, travelers from those restricted countries would just flow through Hawaii, and from there could move on to the rest of the country. A travel ban would still be effectively neutered.

The problem is giving so much power to one federal judge. The concept of checks and balances calls for such power to be dispersed.

The problem is not the nationwide effect, for the federal government is nationwide, and it should be subject to judicial review by the nation’s judges. The problem is giving such power to one federal judge. The concept of checks and balances calls for such power to be dispersed. The government can already request an intermediate appeal of a district-court injunction to a three-judge circuit-court panel. However, such appeals are construed very narrowly, and the injunction and the damage it does can remain in place during the appeal.

Therefore, Congress should enhance this check on a single district-court judge’s power in two ways. First, it should provide that any injunction against the federal government purporting to benefit more than the actual plaintiffs in the case must be automatically suspended (stayed, in legal parlance) during the pendency of any appeals. Second, it should require the circuit-court judges to review the case from scratch (de novo, in legalese). This is a departure from normal practice, where the lower court is supposed to decide all questions of fact. However, the facts in cases involving national policies are almost never tried by juries, nor do they involve witness testimony where the witness’s “look you in the eye” credibility is important. These policies are based on documentary evidence, which circuit-court judges can examine fresh as well as any district-court judge. And overturning a major national policy set by the democratically elected officers of the nation deserves a full fresh look by three more judges, rather than being the decision of one lone judge.

Finally, ideally any three-judge circuit-court decision should be entitled to an immediate appeal to the Supreme Court, which the High Court would be required to hear. Alternatively, appeal as of right could be mandated whenever more than one district court has acted on a particular law or executive action. Given the Supreme Court’s resistance to working any more than they want to, I leave that to the folks across First Street in Congress to impose. The important point is to assure that no one person, even a federal district-court judge, imposes his or her will unchecked on a nation of over 300 million.

James W. Lucas is an attorney in New York City and the author of Are We the People? How We the People Can Take Charge of Our Constitution and Timely Renewed: Amendments to Restore the American Constitution.


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