Let’s begin this essay with a quiz. You, the readers of this august journal, are among the most informed, most knowledgeable political readers in the United States. So surely you can do this: Name a federal district-court judge in your federal judicial district. (Lawyer-readers, sit this out. You know your local federal judges, you study their opinions, and you may even golf with them.)
Stumped? Perhaps it’s time to learn their names. Because, as I’m about to explain, these men and women can exercise more power than the president or your congressional representatives can.
Conservatives have grown used to complaining about the power of the Supreme Court. Its sins are legion; for one, it simply concocted the right to abortion out of whole cloth. But at least it sits at the apex of one of three branches of government. District courts, by contrast, are the lowest-level federal courts. They’re the trial courts, a full two rungs down from the Supreme Court. If you ever find yourself in federal civil litigation — or, heaven forbid, a defendant in a criminal case — the first face you’ll see behind the bench is that of a district judge.
And some of these judges have started to take for themselves a staggering amount of power — the power to reach beyond the parties before them, to reach beyond their geographic districts, and to block the application of presidential or congressional authority from sea to shining sea.
I’m speaking of the nationwide injunction.
The pattern goes something like this. A president, purporting to act under his inherent constitutional authority or under authority delegated by Congress, drafts an executive order — or an executive-branch agency drafts a new regulation. Acting in the belief that the order or regulation violates his legal rights, a plaintiff finds a lawyer and goes to court, asking the district judge to block its enforcement.
Or, more likely, activists work to match plaintiffs, lawyers, and courts to bring just the right claim in just the right court. Liberal plaintiffs and liberal lawyers often file suit somewhere in California, especially in San Francisco. Conservative plaintiffs and conservative lawyers seek more hospitable ground in Texas.
The judge then quickly hears their case and issues an injunction — a ruling that blocks application of the executive order or agency regulation not just to the plaintiff and not just in the relevant jurisdiction, but to any person across the entire nation.
This is an order that cannot be quickly or easily overturned. Though it’s immediately appealable, even expedited appeals can take months or more than a year. Depending on the timing of the president’s order or regulation, a district-court judge can effectively run out the clock on presidential action, delaying implementation for most of his term or even until he’s out of office.
The nationwide injunction has gained particular prominence as a weapon of the judicial resistance to President Trump. Federal district judges have issued nationwide injunctions against Trump’s travel ban, against his decision to revoke President Obama’s Deferred Action for Childhood Arrivals (DACA) policy, and against Trump’s policy withholding certain categories of federal funds from sanctuary cities.
But progressive judges didn’t invent the practice. During the Obama administration, federal district-court judges in Texas issued nationwide injunctions against President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), his policy granting schoolchildren access to bathrooms and other “intimate facilities” according to their gender identity and not their biological sex, and policies regarding union regulations and overtime pay.
In other words, nationwide injunctions are an escalating, bipartisan phenomenon. And they reek of politics. Here’s why.
Courts do not exist to serve as constitutional advisory councils, opining on each act of the president or Congress. Instead, they exist to determine whether specific individuals or entities have suffered specific legal injuries. Each party that comes to court must possess something called “standing” — a claim that it has suffered a legally recognizable injury.
Thus, the relief the court provides (if the plaintiff can prove his case) is supposed to be specific to the plaintiff. It’s his injury at stake, and his injury is the one to be redressed. As law professors Nicholas Bagley and Samuel Bray observe in an excellent essay in The Atlantic condemning nationwide injunctions, the Supreme Court has said that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”
The nationwide injunction, by contrast, puts a maximum burden on the federal defendant, granting relief not just to the plaintiff but to every potential plaintiff in every federal court in the country.
Through forum shopping (the practice of choosing a favorable jurisdiction for a lawsuit), enterprising activists can frustrate the will of the political branches of the government regardless of the merits of the case. And this can have profound political consequences.
The nationwide injunction prohibiting DACA repeal has meant, for example, that Democrats have had little incentive to come to the bargaining table to reach any sort of meaningful compromise on immigration and border security. Why should they? The courts have protected their core interests. There is nothing that they have to “give” in the give-and-take of legislative compromise, because the courts have already granted them what they want to take.
As Attorney General Bill Barr noted in a May 21 speech condemning nationwide injunctions, “the first injunction [against DACA repeal] from the Northern District of California came down on January 9, 2018, in the middle of high-profile legislative discussions.” As a consequence, the president “lost much of his leverage in negotiating with congressional leaders who wanted him to maintain DACA nationwide for the indefinite future.”
Democratic readers may cheer this development. But the cheers will turn to jeers the instant the next Democratic president takes power and the Texas docket grows crowded with challenges to his or her executive authority.
If a plaintiff wants to act on behalf of all similarly situated individuals and secure truly wide-reaching relief, the proper legal mechanism is a class-action lawsuit. As defenders of nationwide injunctions note, class actions are complicated and difficult to bring. But that’s by design. A class representative has to prove that he’s an effective stand-in for an entire category of plaintiffs. Otherwise, class-action litigation can create a manifest injustice by shoehorning dissimilar people into a single piece of litigation.
No one should believe that confining the scope of injunctions to the plaintiff before the court would grant the government impunity to violate the Constitution. Each injunction provides the plaintiff legal relief, and each injunction puts the government on notice of the legal peril of enforcement actions against other individuals — unless the government is confident of its ability to prevail.
As Attorney General Barr notes, the United States made it through the first 175 years of its existence without a single nationwide injunction from a district-court judge. Yet plaintiffs were still able to achieve relief. Individual injunctions were issued by the thousands.
There is a difference between a judicial check on unconstitutional or otherwise illegal acts and a judicial usurpation of a power left to a separate branch of government. By extending his authority beyond the plaintiff in the case, a district-court judge doesn’t issue a judicial ruling; he imposes a kind of veto.
Really, it’s a super-veto. Congress can overturn a presidential veto much faster than a president can appeal a judicial ruling. And it’s a veto from a person who isn’t elected, who’s specifically chosen by activists for the purpose, and who’s almost entirely unknown to the public. If one tried to lab-engineer a practice to foster maximum public distrust of a politicized judiciary, it would be hard to beat the nationwide injunction.
Fortunately, most district-court judges — left and right — aren’t willing to extend their reach so far. They’re content to decide the cases before them and provide relief to plaintiffs and plaintiffs only. But until Congress or the Supreme Court steps in, it will take only a handful of relatively unknown judges to break American government, delay the implementation of even lawful orders, and further frustrate an already frustrated public.
Enough is enough. As American democracy strains under the weight of societal polarization, it’s time to jam the judiciary back into its constitutional box. Courts are supposed to be the refuge of the illegally oppressed, not a haven for the politically aggrieved.
This article appears as “Injunction Dysfunction ” in the June 24, 2019, print edition of National Review.