The Trump administration is raising the stakes in a decades-long effort by the Justice Department to curb nationwide injunctions, which have halted signature presidential policies under both Republican and Democratic administrations.
High ranking officials have been pushing the issue in speeches to the legal establishment, portraying the practice as a judicial power grab. Both Vice President Mike Pence and Attorney General William Barr launched public criticisms against the practice in May.
“This era of judicial activism must come to an end,” Pence told the Federalist Society. And Barr said in a speech to the American Law Institute that “nationwide injunctions have frustrated presidential policy for most of the president’s term with no clear end in sight.”
The remarks are part of the administration’s two-pronged attack on these “universal” or “cosmic” injunctions: one aimed at getting the issue in front of the nation’s highest court, and a more unorthodox one aimed at trial court judges in the trenches.
Previous administrations have typically spoken through court briefs to convey their frustrations with nationwide injunctions, said Scott Nelson of the consumer advocacy group Public Citizen. By taking the message directly to the legal community, the Trump administration is “upping the ante,” Nelson said.
Judges have stopped or slowed down Trump policies 37 times since he took office in 2017, according to May 21 remarks by Barr. Those have included some of Donald Trump’s most controversial policies, like the travel ban halting immigration from mostly Muslim countries and plans to wind down deportation deferrals for young immigrants.
The administration’s coordinated approach contrasts with Trump’s attacks on Twitter against courts and individual judges after unfavorable rulings.
Court of Public Opinion
Justice Department officials, including former Attorney General Jeff Sessions and current Solicitor General Noel Francisco, have pressed their message in speeches to legal groups. These include the Heritage Foundation, the Federalist Society, the American Law Institute, and even the judicial conference for Eighth Circuit judges and lawyers.
Justice officials are operating not only in the courtroom but also the court of public opinion, said Baker & Hostetler’s David Rivkin, who served at the agency and in the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.
There’s a grass roots effort on the part of the Justice Department to try to convince lower court judges to curb the use of nationwide injunctions without Supreme Court involvement, Rivkin said.
Though the administration is taking a novel approach, challengers to Trump policies said there wasn’t anything inherently nefarious about the administration taking its message beyond the courtroom.
The administration can press the issue in particular cases, but it’s “also free to express those views in other forums,” David Cole of the ACLU said.
Trump’s first Supreme Court nominee Neil Gorsuch referred to nationwide injunctions as “cosmic injunctions” because they bind the administration everywhere. They can be issued by a single judge to pause policies across the nation as the legal challenge makes its way through the courts.
The action operates much like a light switch, turning on and off policies that affect millions of Americans, said Florida State University law professor Michael Morley.
The Trump administration’s 37 injunctions in just over two years tops the total during the entire 20th century by 10 according to DOJ’s best estimates, Barr said in his May 21 remarks.
Many of those were issued by judges in the California-based Ninth Circuit, which the president has railed against in the past for being biased against his administration.
Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security...— Donald J. Trump (@realDonaldTrump) November 22, 2018
The Trump administration doesn’t own frustration with the practice, though. The Obama administration was also pestered by nationwide injunctions, John Malcolm of the Heritage Foundation said.
In 2016 alone, federal district court judges, all in Texas, issued nationwide injunctions affecting Obama-era policies on the “persuader rule” relating to union membership, bathroom use for transgender students, disclosure requirements for federal contractors, overtime rules for middle-income workers, and an anti-discrimination provision in the Affordable Care Act, according to one of the leading scholarly articles on nationwide injunctions by Notre Dame law professor Samuel L. Bray.
That was the same year that an evenly divided Supreme Court affirmed a nationwide injunction in one of Obama’s signature immigration policies deferring deportation for family members of “Dreamers"—those who came to the U.S. illegally as minors.
Malcolm said the issue has gotten worse under Trump.
Cole agreed, but he said that likely reflects “the unprecedented extent of illegal initiatives Trump has pursued.”
Nelson said the problem with nationwide injunctions is somewhat of a manufactured one, pointing out that federal law specifically authorizes a court to set aside an entire policy if it’s found to be unlawful.
Both the ACLU and Public Citizen have been at the heart of challenges to controversial Trump administration policies, including advocating for nationwide injunctions to stop them in their tracks.
Curbing these injunctions should be a truly non-partisan issue, affecting both Republican and Democratic presidents, said American University law professor Amanda Frost.
It has been viewed as an institutional rather than political problem across Republican and Democratic administrations for decades, Nelson said.
And there is some early indication that lower courts want to address the issue themselves, Frost said.
She pointed to the agreement by the full U.S. Court of Appeals for the Seventh Circuit to reconsider a nationwide injunction in a case challenging administration’s plans to pull funding from sanctuary cities. The appropriateness of the nationwide remedy, however, was mooted before the court could take it up.
The best case scenario would be for lower court judges to police themselves, Frost said. Rivkin and Nelson, though, don’t think the Justice Department efforts on that front will pay off.
The public relations campaign might bring the issue to some judges’ attention, but the issue will ultimately be decided and shaped through litigation, Nelson said. That’s where “the rubber meets the road,” he said.
Congress, through legislation, or even the judiciary’s policy making body, through changes in the rules governing federal courts, could address nationwide injunctions, Morley noted.
Such legislation was introduced in the last Congress. But if nothing changes, it seems likely that the Supreme Court will step in.
On the Horizon
Malcolm and Morley, as well as Supreme Court advocate and Kirkland & Ellis partner Paul Clement, predicted the issue would reach the high court within the next few years.
Hopefully the Supreme Court will “put some serious limits on this practice,” Clement said at a Federalist Society conference recently.
The Justice Department’s inability to get the issue before the justices so far could be what spawned the two-pronged attack. For instance, the Supreme Court declined to address the scope of the injunction in the Trump travel ban litigation because it ultimately agreed the policy could be lawfully enforced.
Frost noted that the justices actually endorsed a nationwide injunction early in the high court litigation, though they did limit the scope a bit.
Frost believes the increase in nationwide injunctions is tied to an increase in executive power—in both the Trump and Obama administrations. That’s what may get the Supreme Court to take it up, and Morley said sanctuary cities could be the case to do it.
The administration, which already asked the Supreme Court to step in during the early stages of the litigation, is expected to go to the justices again should unfavorable lower court rulings stick.
Justice Department officials declined to comment for this story.