By issuing nationwide injunctions against executive action, federal district courts are exercising too much power.
By issuing nationwide injunctions against executive action, federal district courts are exercising too much power.
L ast month alone, district court judges issued 15 temporary restraining orders halting actions of the Trump administration. That’s more restraining orders than were issued during the first three years of the Biden administration. So far, district courts have blocked an extraordinary range of executive actions, ranging from the attempted repeal of birthright citizenship and a bid to end “diversity, equity, and inclusion” programs to an effort to take down government web pages that discuss sex-change operations.
Former House Speaker Newt Gingrich calls it an “emerging dictatorship of district court judges.”
The latest order comes from District Judge James Boasberg of Washington, D.C., an Obama appointee. He blocked President Trump’s attempt to invoke the Alien Enemies Act of 1798 to expedite the removal of members of Tren de Aragua, the infamous Venezuelan prison gang, who are neither U.S. citizens nor lawful permanent residents. The U.S. has made a deal with El Salvador to send to prison in that country 300 alleged Tren de Aragua members who are currently in the U.S. However, “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” Boasberg told the Department of Justice.
Last Thursday, the Trump Justice Department asked the Supreme Court to curb or shelve three nationwide injunctions lower-court judges have issued against the administration’s bid to end birthright citizenship.
Trump’s acting solicitor general, Sarah Harris, argues that federal district judges have no authority to issue sweeping orders that block policies nationwide. Instead, an injunction should apply only to the judge’s district — or only to those individuals or groups who have sued.
“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” Harris said in her brief to the Supreme Court, in the context of an emergency appeal made to the Court by the Trump administration.
She may get a sympathetic hearing from the supremes. They realize that something has clearly changed at the district court level. During Donald Trump’s first term, 64 nationwide injunctions were issued, a staggering increase from the Obama and Bush years. Justice Samuel Alito recently called it “judicial hubris,” a practice that has damaged the rule of law. He asked: “Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States. . . . The answer to that question should be an emphatic ‘No.’”
Justice Clarence Thomas has noted that nationwide injunctions have little foundation in our history and were rare until the Reagan administration. Notre Dame law professor Samuel Bray concluded, “There seem to have been no national injunctions against federal defendants for at least the first century and a half of the United States.” The practice grew hand in hand with the political polarization of the country over the past 40 years. Left behind is the traditional and limited role of courts: to resolve disputes between specific parties, not to govern using broad legislative-like decrees.
The effort to throw a judicial monkey wrench into every one of Trump’s administrative efforts has become a well-thought-out strategy on the left. Democratic attorneys general and a group of 400 progressive groups called Democracy Forward have joined forces to throw up hurdles to Trump’s agenda. Democracy Forward President Skye Perryman boasts: “The early wins we’ve seen so far are just the beginning of our coordinated legal strategy.”
If the Supreme Court doesn’t curb nationwide injunctions against executive action, Congress should step in. At a minimum, it must restrict the ability of aggrieved groups to forum-shop for a sympathetic judge. A possible solution, therefore, would be for Congress to require that any nationwide injunction issued against the executive branch be approved by a panel of at least three district court judges rather than a single judge. Such cases should then be immediately appealable to the Supreme Court, limiting the time they linger unresolved.
Such a reform would preserve the ability of courts to check genuine abuses of executive power and, at the same time, discourage forum-shopping by which activist groups seek ideologically sympathetic judges to advance their partisan causes.