The Trump administration has been ensnared in a Lilliputian thicket of nationwide injunctions almost since the moment that Donald Trump was sworn in and began issuing executive orders. Trump and his partisans have raged against these orders, many of them issued by individual district judges in deep-blue districts on very short time frames. They have particularly entangled Trump’s deportation efforts and Elon Musk’s Department of Government Efficiency.
Trump and others in his administration have tried slicing through these knots rather than putting in the legal work to untie them. The administration is also asking the Supreme Court to declare that such injunctions are beyond the powers of federal courts. We share many of Trump’s concerns, and so should Democrats who hope to retake the presidency someday. While the volume of orders binding Trump has been unprecedented, nationwide injunctions by individual judges in sympathetic locales have bedeviled the last two Democratic presidents as well.
We think the better answer, however, is for both the Court and Congress to place limitations on the use of nationwide injunctions rather than abolish them entirely. Congress should play the leading role in that process. We can hardly think of a better test case for reviving the national legislature’s capacity to enact bipartisan legislation that improves the functioning of the federal government while fortifying its respect for individual rights and the rule of written law.
After all, judicial activists hamstringing the executive’s power to govern is bad, but it is also destructive for the executive branch to arrogate powers belonging to Congress or the courts, trample constitutional rights, and rule by presidential fiat or unaccountable bureaucratic dictate. The past decade and a half have not been short on examples of all of these abuses, for which the intervention of the courts has been an essential check on an overgrown executive and administrative state.
Moreover, the alternative to national injunctions is for federal law to apply unevenly in different parts of the country, and for the federal executive to continue enforcing policies after a court has found them to be beyond its lawful powers. That should be equally problematic whether Trump, Joe Biden, or somebody else is president.
On Thursday, the Supreme Court heard arguments in Trump v. CASA, Inc., which consolidates three Trump appeals from nationwide orders restraining his executive orders limiting birthright citizenship. CASA is not an ideal vehicle to review all the problems with nationwide injunctions, for three reasons.
First, the birthright citizenship order amounts to a challenge to a prior Supreme Court decision, United States v. Wong Kim Ark (1898). While some cases involve district courts trying to shortcut the development of judicial consensus on knotty legal questions, one expects lower courts to follow long-settled Supreme Court precedents and let the justices worry about whether to limit or overturn them. Second, CASA involves a straightforward matter of interpreting constitutional text, which is the proper job of judges. It differs in that respect from the many injunctions in which district courts substitute their own policy judgments about what is rational or arbitrary for the judgment of the executive on matters such as immigration and foreign affairs. Third, many injunctions are aimed at agencies under the Administrative Procedure Act (APA), which arguably authorizes nationwide injunctions against agency action. Thus, even if the Court doubts the authority to enjoin the president nationwide, it will need to return in a later case to deal with injunctions under the APA.
Even if the Court does not accept the historical case presented by Justice Clarence Thomas for strictly limiting injunctions to the benefit of parties to a case, it is not powerless to restrain such injunctions. Questions of how to tailor the remedial orders arising from the judicial power in order to respect the separation of powers should be informed by history, but they also necessarily entail some level of policy judgment by the Court about the functioning of the judicial branch that it oversees.
At a minimum, as the states challenging the birthright citizenship order suggest, the Court could require district judges to make more robust findings of specific factors justifying the unusual step of nationwide relief. It can also encourage the appeals courts — and lead by its own example — to deal swiftly with cases where the executive branch has been enjoined. Chief Justice John Roberts, in the CASA argument, touted the speed with which the Court handled the TikTok case; may it continue to be so diligent. The justices could also emphasize that immediate nationwide relief is strongly disfavored where it turns on factfinding and judgments of policy rationales rather than violations of specific legal rules.
Many of the problems with nationwide injunctions, however, are beyond the reach of the Court, but are easily fixed by Congress. Congress can end forum-shopping by setting clearer rules and procedures for where and how to bring cases seeking a nationwide injunction. It can strictly limit the ability to bring multiple lawsuits seeking the same relief, which would fix the asymmetry of suits where only the government is bound by a defeat. There are various options for Congress to vest the power for nationwide injunctions only in the hands of multi-judge courts, perhaps with rotating membership to avoid capture by a single geographic district. It could expedite appeals directly to the Supreme Court. These and other potential reforms need not favor one party or the other, if Congress can recover the habit of thinking beyond the current news cycle and beyond the identity of the current president.
The presidency should be energetic, and it should be constrained by law. The current system produces neither: It encourages presidents to play for short-term headlines and seek to maximize their power while litigants play Whac-a-Mole; yet at the same time, it makes routine a numbing delay of years between any executive policy’s announcement and its implementation. This leaves too much power in individual hands, be they executive or judicial, and leaves the legislature sitting as spectators to government by lawsuit. Neither the president nor the Supreme Court can wholly repair the problem. If Congress wishes us to live under the rule of law, it must relearn how to make law.