Push to End National Injunctions Prompts Concern Over Rights

Judges risk losing an important tool to protect the rights of Americans should Congress curb the powers of district courts to issue national injunctions, scholars warn.

Defenders of national injunctions agree judges can wield the broad orders too often. But they said being able to issue them against the policies of presidential administrations is necessary when it affects key rights, and losing the nationwide orders could be harmful.

“These universal injunctions certainly can be used in ways that most people will regard as problematic, but I think that they are an important backstop when there truly is bad faith activity by the government,” said Alan Trammell, a law professor at Washington and Lee University. He pointed to Trump’s executive order against birthright citizenship as an example.

The Trump administration has asked the Supreme Court to trim rulings blocking that order to just the litigating parties, teeing up the issue of national injunctions.

Trammell said he’s worried about a situation where officials technically follow court decisions but still find ways to warp individual rights. He said the Trump administration has gone against over a century of court precedent in fighting birthright citizenship, and has generally pushed the boundaries of executive power.

“They basically said, ‘we don’t care, we’re going to do what we want,’” Trammell said. “That’s the scenario where I am most concerned that federal courts have the full array of remedial options and resources.”

That’s underscored by rhetoric by top administration officials against recent court orders. Officials have invoked privilege in refusing to share details on whether they complied with Chief US District Judge James “Jeb” Boasberg in Washington’s ruling against the administration’s deportation of alleged Venezuelan gang members.

Amanda Frost, a University of Virginia law professor, said without national injunctions, individuals could also lose their rights if they’re not able to go to court. She raised an example of a Black child suing to be able to integrate a school, and that case not applying to other Black families who then have to file their own lawsuits.

“I worry that if we say nationwide injunctions are off limits, courts will feel they can’t grant complete relief when it involves or is affecting other parties,” Frost said.

But other legal experts said the administration might be more likely to comply with rulings if they only apply to certain parts of the country. They said there are workarounds to let people who aren’t filing lawsuits to still be represented in court.

“The fact that a court issues an order like that doesn’t in itself make it any more likely the government is going to follow that order,” Michael Morley, a law professor at Florida State University, said of the nationwide injunctions.

Class Action

Those against national injunctions point to class action lawsuits as a way to represent the rights of those not in court. Those cases allow a judge to certify a class of people affected by a policy or action, even if they aren’t named in the litigation.

Trammell said getting a federal court to certify a class can be an arduous process that not everyone can go through.

“Green card holders, permanent legal residents who are saying, ‘I have a right to return to the United States,’ they don’t necessarily have a year to wait around for that,” Trammell said. “Class actions aren’t the panacea that a lot of people have been arguing for a number of years.”

That’s not always the case: Boasberg quickly granted a provisional certification in the Venezuelan deportation case.

Morley also said groups could sue, arguing that the organization or its members are harmed by a policy. He said states could similarly file lawsuits on behalf of their residents.

Frost said the realities of implementing an injunction solely for a group’s members is “just unworkable.”

“People they represent are all over the country, everywhere. You show your credentials that you’re a member of the group and then have a policy not applied to you?” she said.

Forum Shopping

Critics of national injunctions say they lead to forum shopping, or parties filing cases in courts they view as more receptive to their arguments.

University of Louisville law professor Russell Weaver said having to bring cases in different circuits is “more likely to produce divergent results, which I think is healthy for the system.”

While officials may struggle to implement varying court rulings, law professors agreed that having different decisions can help better develop the legal arguments around a policy before it gets to the Supreme Court.

They said the justices will likely take up cases where the circuit splits are so divergent that it becomes untenable.

Frost said concerns about forum shopping can be addressed without getting rid of national injunctions. The judiciary last year adopted a policy meant to cut back against judge shopping, as lawsuits filed in certain district court divisions are guaranteed to be heard by a specific jurist, but some courts where the practice is most prevalent aren’t following the recommendation.

Morley said courts of appeals need to only rule on one case filed within its jurisdiction in order to set a precedent. “That ruling is now binding, and in a sense alleviates the need or at least most of the need for injunctive relief within that particular circuit,” he said.

Frost said that courts would likely face an influx of cases from those who feel obligated to file individual lawsuits to protect themselves. “I think courts have a real interest in not letting that happen. They’re overwhelmed enough,” she said.