RUTHFULLY YOURS

Nationwide injunctions — or perhaps, as Justice Neil Gorsuch has acidly observed, we should call them “universal” or even “cosmic” injunctions — are a distortion of our constitutional order. Alas, they are proliferating because of other, more deeply seated distortions.

A nationwide injunction occurs when a single unelected judge, seated in just one of 94 federal districts throughout the nation — say, the District of Hawaii, home to just 0.4 percent of our population — issues a ruling that binds the entire country, forbidding the government (most often, the president through subordinate executive agencies) from executing a policy, regulation, or statutory interpretation.

A judge’s role in our system is vital but modest. As Chief Justice John Marshall admonished in Marbury v. Madison (1803), establishing the authority of courts to review the constitutionality of congressional statutes: “It is emphatically the duty of the Judicial Department to say what the law is.”

To say what the law is. Not to write or enforce it. The courts are the nonpolitical branch. It is not for them to make policy, the prerogative given to the political branches accountable to the people whose lives are affected. The judge’s burden is to dispose of cases or controversies — justiciable claims of concrete harm brought by a plaintiff allegedly aggrieved by the defendant — by saying what the law is. Because a court merely interprets the law within the four corners of the dispute, it settles the legal rights of the parties and nothing more.

By issuing nationwide injunctions, however, judges effectively make policy by nullifying the policy choices of the elected administration. This does not stop at settling the rights of the parties to the lawsuit; it saddles others similarly situated, and frequently the entire country and its government, for as long as the injunction is in place. As litigation goes, that can be months and sometimes more than a year.

Justice Neil Gorsuch’s critique (in a 2020 concurring opinion in Department of Homeland Security v. New York) focused on the havoc that nationwide injunctions wreak on the administration of justice — the race to the courthouse, the tendency toward emergency stays rather than the customarily deliberate pace of litigation. He was joined in that opinion by his fellow originalist, Justice Clarence Thomas, whose own 2018 concurrence in Trump v. Hawaii portrayed nationwide injunctions as so counter-constitutional that Congress could not legitimate them; by his lights, they need eradication, not restraint.

It’s not just conservative jurists who take issue with this practice; there is agitation on both sides of our political divide. At a 2022 forum at Northwestern University’s law school, Justice Elena Kagan, the Supreme Court’s most formidable progressive voice, asserted: “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.” Last year, asking the Supreme Court to vacate the suspension of President Biden’s student-loan-forgiveness gambit, then–Solicitor General Elizabeth Prelogar cited Thomas and Gorsuch in inveighing against “universal remedies” that simultaneously sow systemic chaos and undermine limits on judicial power.

Most profoundly, nationwide injunctions run roughshod over the separation of powers, the Constitution’s structural safeguard of liberty and self-governance. This is not the resolution of disputes among individual parties that the Framers envisioned. One unaccountable judge, with no constitutional responsibility for national defense, foreign relations, or immigration enforcement, in a district that may be not only unrepresentative of the country at large but remote from the matter in controversy, is empowered to supplant with his own policy preferences, for example, the border security initiatives on which the elected president ran and won. (Recall when Trump 45 border enforcement policies were strategically challenged in Hawaii, where Obama had appointed his law school classmate, Judge Derrick Kahala Watson, to the bench.)

As former Attorney General William Barr detailed in a 2019 speech, nationwide injunctions enmesh the courts in the political process to the detriment of both: The judiciary compromises its legitimacy as a detached arbiter, while the president loses his leverage in negotiating with opposition party leaders in Congress — what’s the rationale for compromise if a judge will block the administration wholesale? Wayward practice thus moves our politics into the courtroom, where activist interest groups and confederations of state attorneys general (one for the blue team, one for the red) usurp the role of the electorate and its very different perceptions of the public interest.

The process, as both Barr and Prelogar observe, is asymmetrical: When a court denies a nationwide injunction, no other cases are affected, but when a judge grants such an injunction, all other litigation on the matter is rendered irrelevant. The activists need to win just once; the government — whether implementing an executive policy or enforcing a statute — has to “run the table,” as Barr put it, by winning every case. Injunctions freeze litigation. There is no “percolation,” the venerable judicial process by which facts are clarified and contentions crystallized through cases in several courts, deliberatively rising to the appellate level. Without that process, bad decisions based on half-baked records loom.

These are not hidden flaws. For 174 years after constitutional governance commenced in 1789, no federal judge issued a nationwide injunction. As noted by the Harvard Law Review and former Bush 43 Justice Department official Jack Goldsmith, the pace picked up in the 60-plus years between the Kennedy and Biden administrations, which saw 127 nationwide injunctions. Of these, about half (64) were issued during Trump’s first four-year term — more than double what Presidents Obama (12) and Biden (14) faced in their combined dozen years in office. Significantly, almost half of the combined injunctions issued during the Bush-43 and Obama administrations (8 out of 18) were issued by judges appointed by the president’s own party; by contrast, since 2017, judges appointed by the president’s opposition party have issued virtually all such injunctions (Trump, 92.2 percent; Biden, 100 percent).

To be sure, we can read too much into it. There are some willful progressive judges who have blocked, and are now blocking, Trump’s agenda. That said, in his fledgling second term, Trump has been purposely edgy, strategically violating laws in the hope of getting the current Supreme Court (with six Republican appointees, three chosen by Trump) to invalidate dubious limitations on presidential power and reverse precedents that are foundational to the administrative state — such as Humphrey’s Executor, which approved Congress’s creation of “independent” agencies insulated from executive control.

Furthermore, Trump has mimicked the imperious Obama and Biden distortions of prosecutorial discretion, formerly a mere resource-allocation doctrine (grappling with the unremarkable fact that there are finite enforcement resources for combating widespread crime). Like his two predecessors, Trump sees the doctrine as license to ignore his oath to execute the law faithfully — refusing to enforce Congress’s requirement that TikTok divest of China-controlled ownership, fabricating “national emergencies” as a pretext for his unilateral imposition of tariffs, deporting without due process of law Venezuelan aliens to El Salvador to be held in a notorious prison, and so on. Questions about nationwide injunctions aside, a president who serially violates the law inexorably draws judicial ire.

The court system is skewed, and the judges are too activist, it’s true. But the surge of injunctions emerged seamlessly from other long-standing anomalies. The progressive administrative state has overrun federalism: in particular, Madison’s conceit (in Federalist No. 45) that there must be a divide between internal and external governance, such that diverse states and local communities regulate “numerous and indefinite” matters closest to home, with the central government limited to the “few and defined” imperatives of nationhood — defense, diplomacy, sound currency, and commerce that are truly interstate and international. This has marginalized healthy pluralism and self-determination in favor of top-down, one-size-fits-all rule.

Having massively delegated legislative power to unaccountable bureaucrats at regulatory agencies, Congress has receded, thereby subverting separation-of-powers principles that make the legislature the most important branch. Congress’s powers to make law and guide federal agencies have shifted decisively to the executive branch. Hence there has been a rise of pen-and-phone government by executive order and bureaucratic regulation. With Congress having abdicated its constitutional role as the dispositive counterweight against executive excess, the courts — encouraged by the activist litigators — fill the void, in effect becoming the political check on the president.

The result is destructive of republican democracy and the legitimacy of the judiciary. It would be best to outlaw nationwide injunctions, but reining them in would at least be a curative step.

It is possible that the Supreme Court could do this on its own, either in an appropriate case or through its power to amend the Federal Rules of Civil Procedure. Yet, although there is apparent angst among the justices regarding injunctions and hyperactivity on their emergency docket, they have not moved to this point.

Senator Chuck Grassley (R., Iowa) makes the best legislative proposal. He’d follow the Constitution and, consistent with Congress’s control over the jurisdiction of the lower federal courts, resolve that judges’ decisions are limited to affecting the parties to the lawsuit. Plaintiffs who sought a nationwide injunction would have to comply with the rules governing class action lawsuits, which include significant hurdles for class certification. Because they are exactingly regulated, class actions often take years to play out. Alas, today’s tribal politics stifle potential legislative reform: Sure, Democrats seethed when Obama and Biden were blocked by injunctions, but their base would mutiny if they were seen as unshackling Trump; Republicans would respond in kind if a Democrat retook the White House in 2028.

This paralysis renders other worthy ideas nonstarters. The American Enterprise Institute’s Adam White, for instance, has suggested a “lottery” system modeled after the federal procedures already in place for multidistrict litigation. The idea is to defeat forum-shopping, the easy availability of which drives nationwide injunction motions. Litigants would be given a limited number of days after a government action to seek a nationwide injunction; then, the case would be assigned by a random lottery to any one of the 94 federal district courts. Rather than home cooking, the party bringing the motion would risk getting fare dished up by a potentially unsympathetic judge in a faraway courthouse. There could also be expedited appeal if an injunction were granted — moving the case rapidly to one of the twelve circuit appellate courts and, finally, the Supreme Court, so that an outlier district judge’s work does not go unchecked for months on end.

Other tweaks could also help. For example, courts have ignored procedural rule 65(c), which presumptively requires that plaintiffs seeking an injunction post security pay the costs and damages of any party wrongfully restrained. Congress could make this mandatory (the “proper” amount is now left to the court’s discretion); if a litigant seeks to block initiatives based on a statute or regulation, significant collateral should be compulsory unless the claimants can demonstrate true indigence and likelihood of ultimate success. District judges, moreover, should be instructed to heed the Supreme Court’s high bar for justifying standing to sue. Courts are for parties who have suffered nonspeculative injuries in fact, directly caused by the defendant and properly redressable by a judge. Special interest groups seeking declaratory judgments usurp the Constitution’s democratic process.

That process cannot be restored absent a revitalized Congress. Nationwide injunctions are a simulacrum of republican self-governance. Their extirpation would enhance the quality of justice while nudging legislators back toward legislating.