In a speech before the Federalist Society several days ago, Vice President Pence announced that the administration would be developing and pursuing a strategy to attack the legal basis for nationwide injunctions issued by U.S. District Court judges:
"The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them — and it's imperative that we restore the historic tradition that district judges do not set policy for the whole nation," Pence told the conservative lawyers group.
"In the days ahead, our administration will seek opportunities to put this question before the Supreme Court — to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land," Pence added.
Pence's comments reflect a growing concern from a number of commentators and observers of the courts over the increasingly frequent propensity of district court judges to reach beyond the scope of their district in either forcing, or preventing, actions undertaken by the government on a national basis. Supreme Court Justice Clarence Thomas is one of those observers who has openly questioned the legitimacy of such injunctions.
Needless to say, many progressive organizations are up in arms about the possibility of a challenge to nationwide injunctions, and with good reason: they have become a mainstay of the "lawfare" used by such groups to attack many of the Trump administration's major initiatives, particularly in the immigration arena.
For instance, according to The Hill:
Cecillia Wang, a deputy legal director for the American Civil Liberties Union, said the administration's effort to limit the scope of injunctions "is simply to stand in the way of justice."
Wang also argued that the power to issue nationwide injunctions is protected under the Constitution.
"I can't take seriously the vice president's threat to undo what the founders of the country, the framers of the Constitution intended, which is to have a safeguard against unlawful executive branch action," Wang said.
Wang's assertions go beyond revisionist history and into the category of historical fiction. Article III of the Constitution provides simply that "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." There is no mention of nationwide injunctions, and in fact for many years, following enactment of the Judiciary Act of 1789, our federal judicial system was so rudimentary that individual Supreme Court justices themselves rode circuit on horseback to various parts of the country to resolve cases of first impression that they might be called on later to again adjudicate en banc as a part of the whole court.
The evolution of a single tier of federal judiciary to a full developed second tier (circuit courts as well as the Supreme Court), and finally to the district courts which form the third tier, took many decades, and was ultimately developed out of a recognition in both the judicial and political branches that there were many valid reasons to establish an interconnected system that permitted a wide range of judicial decision-making within each of the districts and the circuits, with the Supreme Court ultimately acting as the governor of the judicial mechanism to resolve, with mature consideration, splits of opinion only after they had been fully developed within the multiple lower courts.
The wisdom of such a diffused system was not only that it was more in accord with the geographical realities of a sprawling nation, but because this allowed cases to percolate through a variety of courts so that when finally decided by the U.S. Supreme Court, the matter being considered would have a multiplicity of nuances, gradations, and sometimes even contrary decisions issued in a number of different district and appellate courts. All of this lends itself to a position from which justices can review all of the combined judgments of their inferior brethren in the judiciary in order to consider the best resolution for the nation as a whole, consistent with the Constitution.
By contrast, when a nationwide injunction is issued by a district court judge – often, ironically, in a judicial district far from the scene of the impact on which he or she is ruling, such as has happened with a number of Pacific Northwest judges ruling on everything from the so-called "travel ban" to actions taken directly on the border hundreds of miles to the south – this entire philosophy of considering and resolving conflicts in opinion from the numerous district and circuit appellate courts is short circuited; it is, in fact, subverted. The administration is right to pursue a legal challenge to the very notion of nationwide injunctions by district court judges.
If, in the end, their use is preserved by the Supreme Court, let us hope that it establishes strict, bright-line rules that limit application only to the most extreme, exigent circumstances — because otherwise, the notion of a single unelected official sitting in black robes on a raised bench issuing binding national decrees by fiat, sounds neither reasoned, wise, nor just. Instead, it smacks of despotism.