The Patriot Post® · What Can Be Done About Nationwide Injunctions?
What President Thomas Jefferson once called the “despotic branch” has become a real problem for President Donald Trump. The three branches are supposed to be coequal, but district judges on a power trip seem bent on blocking the chief executive from even running his own branch. That tide may be changing.
I wrote about the problem with judicial activism last month. Fortunately, Trump has won three big victories in recent days.
The Supreme Court granted a reprieve on his use of the Alien Enemies Act, though that may still end up going against him. The good news is that the Court rebuked the Obama judge who ruled against Trump.
In another case, the Court struck down an order blocking Trump’s firing of 16,000 employees, holding that they lacked legal standing to sue. Put another way, the Court sent a message to lower-court judges that such cases must proceed under the correct process.
Finally, the Court also effectively put lower courts on notice regarding executive expenditures. Specifically, though a lower court ruled that the Education Department must reinstate $65 million in DEI grants it had elected to withhold, the plaintiffs did not follow the correct procedures.
None of the three cases grant the Trump administration a complete victory, but all three did rein in rogue judges at the district level who had granted venue-shopping plaintiffs exactly what they wanted without following proper procedure.
More generally, how do we end such despotism from the lower courts?
Law professor Elizabeth Price Foley recently explained in a Wall Street Journal op-ed that the Supreme Court can do so. “There is something the justices can do to rein in nationwide injunctions,” she said. “Exercise their authority under the Rules Enabling Act of 1934 to amend the federal rule on injunctions.”
She noted that such injunctions “were almost unheard of before the 1960s.” Yet George W. Bush (12), Barack Obama (19), and Joe Biden (28) each saw a drastic increase. In Trump’s first term, he was hit with 86 of them and already had 15 as of her writing on March 25. Nationwide injunctions, she argues, undermine the president’s power but also “the justices’ authority.” That’s because, she says, “Such national power must be reserved to the only court with constitutional authority to bind the entire nation: the Supreme Court.”
Given Chief Justice John Roberts’s recent vigorous defense of lower courts, however, it’s unlikely that he and his court will step in.
Manhattan Institute constitutional expert Ilya Shapiro says that leaves the job to Congress. “All of this reflects the failure of the Supreme Court to provide guidance to the lower courts,” Shapiro said. “It’s not surprising now Congress says we have to do something about it.”
Congress is indeed working on a solution, though that faces stiff opposition from Democrats who want to block Trump with whatever means are necessary.
Senator Chuck Grassley wrote his own Wall Street Journal op-ed in which he made the case for his legislation to “curb judicial policymaking and politicization of courts.”
He begins by arguing against the fiscal implications that hurt taxpayers, as well as the political calculations that then become far more important when appointing judges. “Political and fiscal implications aside,” he writes, there’s a bigger problem: “District judges’ abuse of temporary restraining orders and nationwide injunctions is unconstitutional. Article III of the Constitution tasks the judicial branch with resolving ‘cases’ and ‘controversies,’ not making policy.”
His Judicial Relief Clarification Act will “restore the constitutional role of lower courts by restraining their ability to issue universal injunctions.”
Senator Josh Hawley has introduced the Nationwide Injunction Abuse Prevention Act, as well. In the House, Darrell Issa put forward legislation similar to Hawley’s, called the No Rogue Rulings Act, and it’s expected to advance out of committee this week.
“These rogue judge rulings are a new resistance to the Trump administration and the only time in which judges in robes in this number have felt it necessary to participate in the political process,” Issa said. “The federal judiciary isn’t interpreting the law. It is impeding the presidency. It is, in fact, not coequal, but holding itself to be superior.”
Democrats, who recently wanted to put a chokehold on the Supreme Court with an “ethics reform” bill — after they wanted to pack the Court to thwart the conservative majority — are suddenly concerned with the Constitution. Several Democrats have spoken against any attempt to legislate a fix because it’s so important for the courts to remain an independent check on the president they hate so much. In fact, Senate Democrats will inevitably use the filibuster they wanted to eradicate until five minutes ago to block such legislation.
We’ll see where this ends up, but the Rule of Law depends on all three branches operating within their constitutional bounds. In other words, we’re in trouble.
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Update: + House passes bill to limit nationwide injunctions: On Wednesday, House Republicans successfully passed the No Rogue Ruling Act, which aims to counter judicial activism by limiting the ability of federal judges to issue nationwide injunctions. The bill passed by a vote of 219-213, with one Republican, Rep. Mike Turner (OH), siding with Democrats in voting against the legislation. The bill’s sponsor, Rep. Darrel Issa (CA), specifically highlighted the increasing use of nationwide injunctions as “yet another gambit to stop President Trump from exercising his constitutional powers and carrying out the policies he promised the American people he would make a reality.” Should the bill become law, it would require a three-judge panel randomly selected in cases brought by two or more states against the executive branch for any nationwide injunctions to be ordered. A similar bill has been introduced in the Senate.