Do Nationwide Injunctions Violate Separation of Powers, and Usurp Other Jurists' Authority?

By Dan Cadman on September 14, 2018

The House Judiciary Committee yesterday approved the "Injunctive Authority Clarification Act of 2018" (H.R. 6730). As Law360 reports:

The drafted legislation proposes to prohibit U.S. courts from issuing an injunction order that would prevent the federal government from enforcing a law or statute, or a "similar authority," against nonparties pending a legal challenge.

These nationwide injunctions have been used recently to halt federal actions under the Trump administration, such as President Donald Trump’s so-called travel ban, as well as to hinder several Obama-era immigration policies. The Trump administration has so far been subject to 22 national injunction orders, according to Goodlatte.

Committee Chairman Bob Goodlatte explained in a statement the need for the legislation

Judicial overreach in the form of national injunctions has increasingly frustrated Administrations of both parties. Although the Trump Administration has been the target of over 22 national injunctions to date, the practice took off in 2015 as a means of stopping major Obama Administration policies.

The Constitution gives courts the authority to decide cases for the parties before them, not to act as super-legislators for everyone across the country based on a single case. It simply cannot be the law that opponents of government action can seek a preliminary injunction and lose in 93 of the 94 judicial districts, win one injunction in the 94th, and through that injunction obtain a stay of government action nationwide despite it being upheld everywhere else.

I haven't read through the language of the bill, but think that Goodlatte is right on the track with his premise. More and more, we see a single judge frustrate efforts on the part of the entire government when he or she issues a nationwide order enjoining efforts in a host of areas — many of them involving immigration in the past few years, as we've seen with regard to the so-called "travel ban", sanctuary city funding, detention of minors or partial family units, and a host of other issues. Suits seeking class action status and nationwide injunctions have become part of the lawfare being used to eviscerate effective immigration control in the modern era.

It defies the logic of our court system that a judge can so effectively neuter an entire government policy or strategy with the stroke of a pen. Consider that each judge presides within a set judicial district (there are 94 scattered all over the United States and its territories). A group of the judicial districts are presided over by a federal appellate circuit court (there are 12 circuit courts, 11 of which are regional in nature, and one, the District of Columbia Circuit, which focuses on federal agency matters at the seat of government). The appellate courts in turn are overseen by the Supreme Court.

But when a single district court judge, using restraining orders to enjoin the government, makes rules imposed on the entire nation, he or she has overthrown the deliberate diffusion of assigned jurisdictions and responsibilities that allow legal controversies to bubble up to the circuit courts and thence to the Supreme Court. This process was designed to allow a host of judges to weigh in with their take on what the law or Constitution require.

Thus it would seem to many reasonable observers that activist judges who are quick with national injunctive relief not only usurp the legislative powers assigned by the Constitution to Congress, but even the judicial powers of other district and circuit court judges around the country. Once the injunction has been issued, it precludes those other districts and circuits from reexamining the matter through the lens of different cases since the government cannot take a different course of action within their jurisdiction; it has been bound by the orders of a district court judge far distant from those other federal districts or circuits. Goodlatte's bill would prevent, or at least limit, this judicial overreach.

Supreme Court Justice Clarence Thomas commented unfavorably on the phenomenon of national injunctions in his concurring opinion in the Trump v. Hawaii "travel ban" case, questioning their dubious nature and origin.

It's an interesting and perceptive question, and one that deserves to be answered. Even if Goodlatte's bill doesn't reach the president's desk, as is so often the case with our paralytic Congress, one way for the federal government to test the matter is to appeal a variety of national injunctions when issued in various courts in different important cases — not based on the merits of the case, but on the constitutional proposition itself. Let the circuit courts and then the Supreme Court consider the matter head-on. Jurists, heal thyselves.