The practice of federal judges issuing nationwide injunctions may come to an end.
President Trump’s agenda faces never-ending legal
challenges, which are often welcomed with open arms by a more than sympathetic
The federal judiciary bends federal power according to its
will. Lone judges compel nationwide
policy with the use of universal injunctions.
Judges who are Obama Administration nostalgics halt the president’s
constitutional exercise of power in favor of preserving the policies of the
But the Associated Press reports that the Trump Administration is no longer interested in playing that game.
“Vice President Mike Pence said Wednesday that the Trump administration intends to challenge the right of federal district courts to issue rulings blocking nationwide policies, arguing that such injunctions are obstructing President Donald Trump’s agenda on immigration, health care and other issues. In his remarks, Pence quoted from an opinion by Justice Clarence Thomas, who joined the majority opinion upholding the Trump travel ban last June, but also wrote separately to say nationwide injunctions “are legally and historically dubious” and that the high court would have to step in “if federal courts continue to issue them.”
I wrote about Justice Thomas’ concurrence in June. His opinion is worth the read. It can be found here, at
The topic of nationwide injunctions is fascinating. It displays how the common law occasionally
molds and morphs the judicial power in a way that other branches cannot get
away with. Some of that is by design so
that the two more powerful branches are restrained, but there are times when it
goes too far.
The Associated Press goes a bit far in describing the
imposition of nationwide injunctions as a “right.”
Justice Thomas then points out that in order to impose
universal injunctions; one must have statutory authorization or inherent
authority to do so. He says “no statute expressly grants district courts the
power to issue universal injunctions.” The
courts must then look to an unrelated statute with vague implications in
order to justify a practice inconsistent with “our history and traditions.”
And while Pence’s concern certainly is warranted, he
misrepresents the scope of the problem.
Bloomberg reports that Pence complained “that federal district courts have imposed
more nationwide injunctions against Trump than the first 40 presidents
When I discussed Thomas’ opinion back
in June, I made sure to share the history that Thomas provides in his
“Justice Thomas then goes on to say that starting in the mid 20th century, jurists sought to answer broader questions in order to compel uniformity in executive acquiescence to lower court decisions. While some claim that injunctions are a check on executive power, Thomas contends that if that were the case, the people would have made it clear when they ratified the constitution in 1787.”
Nationwide injunctions are a relatively new practice. Pence’s inaccurate statement does not negate
the effectiveness with which they have been used against the Trump
Some on the left like to claim that Trump is an
authoritarian. For being an authoritarian, he has been very restrained in his
reaction to judicial overreach. Merely
voicing one’s opposition to judicial overreach is hate speech and proof of
tyranny! Trump actually hasn’t done
anything to stop or defy the overreach.
Asking the Supreme Court to address the issue of nationwide
injunctions is not authoritarian at all.
It is the right thing to do since the power to issue injunctions is
firmly rooted in our constitutional history and the history of the common law
I also said this in June,
These injunctions are premised upon an understanding of equitable relief, a remedy found both in statutes and in the constitution. But equitable relief is itself premised upon the founding generation’s concerns regarding the power of the judiciary as well as the founding generation’s understanding of what equitable relief meant in England. He says “authority to provide equitable relief is meaningfully constrained. This authority must comply with longstanding principles of equity that predate this country’s founding.”
Collins Dictionary of Law, a legal dictionary for the UK, defines “equity” as, “a system of law, developed by the Court of Chancery in parallel with the common law, designed to complement it, providing remedies for situations that were unavailable at law.” Equitable relief is generally in the form of mandamus (do this) or an injunction (don’t do that). But as Thomas points out, equitable relief is limited to parties involved and to specific cases. It is not whatever the judge wants it to be i.e. a universal prohibition on all actions vaguely related to non-parties similar to the individual case.
So of course, we have legitimate judicial power that can be
exercised in the form of an injunction or mandamus, but we also have the
cancerous growths of judicial power that have perverted the original purpose of
The nation is governed by laws passed by 535 members of the
legislative branch, signed by one executive.
We are not governed by the overreaching opinions of a handful of
unelected judges who make up a judiciary with 875 members.