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Clement Predicts SCOTUS Will Limit Nationwide Injunctions (2)

May 8, 2019, 7:44 PMUpdated: May 8, 2019, 11:02 PM

The U.S. Supreme Court will likely take on the controversial issue of nationwide injunctions and put “serious limits” on them, former U.S. solicitor general Paul Clement said Wednesday.

The practice has bedeviled both Democratic and Republican administrations in recent years, with states seeking to convince sympathetic judges to halt the most hot-button executive policies in areas ranging from health care to immigration.

“I do think this is an issue that’s going to be sort of squarely addressed by the Supreme Court in the next couple of years,” Clement, a partner at Kirkland & Ellis, told a panel at the Federalist Society’s Seventh Annual Executive Branch Review Conference in Washington.

He ventured a guess—maybe a “hopeful” one, he conceded—that the high court “is going to put some serious limits on this practice.”

Vice President Mike Pence, also appearing at the conference, said in remarks that this “era of judicial activism must come to an end” and that the administration planned to “seek opportunities” to put the issue before the justices.

He said the Supreme Court “must clarify that district judges can decide no more than the cases before them,” adding that it was “imperative that we restore the historic tradition” that district judges don’t set national policy.

A problem with these injunctions, Clement said, is that they put a lot of pressure on the court, with the justices “being asked to weigh in on cases before there’s really been any serious development in the case, let alone the kind of mature deliberation you get when one circuit has gone one way and another circuit has gone another way.”

Justice Clarence Thomas made similar complaints about nationwide injunctions in a solo concurrence he wrote to the high court’s decision upholding President Donald Trump’s travel ban last year.

(Updates with Vice President Pence's comments, paragraphs 5 and 6. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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