End nationwide injunctions
Should a single, unelected federal judge serving for life in a single judicial district be allowed to block government policies nationwide?
This is not a partisan issue. A total of 60 nationwide injunctions have been slapped on the Obama and Trump administrations in the last decade. Law professor Samuel Bray told a House subcommittee that “whether you are a Democrat or a Republican, sometime in the last [few] years your ox has been gored by the national injunction.”
This practice has created a growing chorus of calls for the Supreme Court to put an end to it. The most recent call for sanity comes from Attorney General William Barr.
Barr notes that “lower court federal judges have increasingly resorted to a procedural device — the ‘nationwide injunction’ — to prevent the government from enforcing a policy against anyone in the country.”
He continues: “These days, virtually every significant congressional or presidential initiative is enjoined — often within hours — threatening our democratic system and undermining the rule of law.”
Supreme Court Justice Clarence Thomas agrees:
“These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”
Worse, nationwide injunctions can harm the very people the judge intends to help. The Obama administration’s Deferred Action for Childhood Arrivals program is a case in point.
I have been a longtime advocate of increased legal immigration. I’ve also advocated for the so-called Dreamers, those living here today who were brought to this country illegally by their parents when they were young. Most have known only the United States and have no attachment to their parents’ country.
Congress repeatedly failed to grant legal status of any kind to Dreamers. Frustrated, in 2012 the Obama administration stopped enforcing immigration laws against them, the DACA program.
Five years later, the Trump administration announced it would resume enforcing federal law, prompting Democrats to negotiate in search of a broad solution. Just as a compromise appeared near, a district court judge in San Francisco entered a nationwide injunction prohibiting the Trump administration from ending DACA, destroying any opportunity for political compromise.
As a result, Dreamers remain in limbo while the courts determine their ultimate fate rather than the legislative and executive branches.
This last summer, Oakland federal district judge Jon Tigar issued a nationwide injunction halting the Trump administration’s rules limiting asylum claims by Central American refugees. The liberal Ninth Circuit Court of Appeals narrowed his ruling but that didn’t deter Tigar: He reinstated the nationwide ban a week later.
Finally, it took a Supreme Court ruling to put an end to Tigar’s personal national policy preferences.
The Tigar brouhaha illustrates how nationwide injunctions turn the judicial system upside down. It took a 2–1 appeals court ruling to limit his original injunction. Then it took at least five Supreme Court justices — only two dissented in the Tigar case — to restrain a single federal judge.
Justice Thomas points out another serious problem with nationwide injunctions. Difficult legal issues often result in contradicting decisions in various courts. By allowing this process to play out, a variety of legal theories and arguments “percolate” up to appeals courts and then to the Supreme Court resulting in a well-considered final judgement.
So is there a solution?
The Constitution’s separation of powers limits the executive and legislative branches’ role in establishing judicial procedures. But the Supreme Court could end it with a single decision should it so choose.
Justice Thomas notes that nationwide injunctions “are legally and historically dubious. If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”
Let’s hope it does. Whether you’re a liberal or a conservative, nationwide injunctions are no way to run a railroad.
The viewpoints expressed above are those of the author and do not necessarily reflect those of The Independent.
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