Senators Grapple With Nationwide Injunctions That Anger Trump

Senators on both sides of the aisle wrestled with the question of establishing judicial guidelines for imposing nationwide injunctions and weighed suggestions that the Supreme Court may be best suited to address the issue first.

“I don’t know how to fix it, whether we need legislation or the courts can find a way to correct this problem, but somebody needs to fix it because I don’t think you can run the country this way,” Senate Judiciary Chairman Lindsey Graham, R-S.C., said at a hearing on Tuesday on the controversy.

Nationwide injunctions have riled the Trump administration and conservative allies frustrated with individual judges halting the president’s policies, ranging from the travel ban to more recent litigation over immigrant wealth tests.

Supreme Court Justices Clarence Thomas and Neil Gorsuch, both conservatives, believe the actions are destructive and argue the court should take up the issue.

“Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case,” Gorsuch wrote earlier this year. Vice President Mike Pence and Attorney General William Barr are among administration officials who’ve been vocal about the issue.

Federal judges have moved more than three dozen times in three years to temporarily prohibit enforcement of Trump policies that were challenged before them. That contrasts with about 20 for Barack Obama and even fewer for George W. Bush, both of whom served eight years, according to senators and witnesses at the hearing.

While the Trump administration and some Republicans have been vocal about halting the practice, there seemed to be some appetite from Democrats at the hearing for guardrails. However, they wrestled with the benefits of halting certain executive action versus the pressure that repeated nationwide injunctions put on the judiciary.

The central question considered at the Republican-led hearing, which was devoid of the usual partisan acrimony afflicting Congress, was whether lawmakers should pass legislation or whether any remedy rests with the high court.

Sen. Richard Blumenthal, D-Conn., said he was “impressed with the intellectual and practical difficulty of making a rule here,” noting that appeals courts have been divided on the matter. He saw the upside of nationwide injunctions as a balance for the executive branch, but suggested that it might be appropriate for the Supreme Court to consider a case.

“We’re never going to have a really wise and definitive result from the United States Congress to this complex an issue,” he said before asking the panel of experts whether the high court should take it up.

Their responses varied.

Solicitor General for the District of Columbia Loren AliKhan said she believes nationwide injunctions are appropriate on a case-by-case basis, and agreed that it would be best to wait for the Supreme Court to rule. She said it could be “legislatively very difficult to come up with a standard.”

Jesse Panuccio, a partner at Boies Schiller Flexner, argued that nationwide injunctions are akin to policy-making, and said Congress should tackle the issue.

Others, like University of Michigan Law School professor Nicholas Bagley, are open to both options. “I’m agnostic about who decides the question so long as the question is decided in the way I think is most appropriate,” Bagley told Bloomberg law after the hearing.

“Right now I think the court is attuned to the problem and I’d be curious to see how the Supreme Court address it in some upcoming cases, and if that obviates the need for Congress to act—all the better,” Bagley said.

A key issue going forward is getting a relevant case before the justices. Bagley suggested the Supreme Court could take on the issue in a case challenging the legality of the Trump administration’s contraceptive mandate, Trump v. Pennsylvania. Arguments are scheduled for April.

Sen. Dianne Feinstein of California, the top Democrat on the Judiciary panel, seemed receptive to some of the arguments that nationwide injunctions put pressure on the courts. But Feinstein said she can also see benefits.

For example, the Obama-era Deferred Action for Childhood Arrivals policy, which allows people who were brought to the U.S. as children to defer deportation action, is currently still in effect while litigation challenging it continues through the courts.

“I can see good in the injunction because it protects something done by Congress and signed by the president and that becomes law in our country, whether that be DACA or any other bill, but if you try to balance, it can be difficult,” Feinstein said.

Still, she said balancing competing interests is “very difficult” and that “I find it very hard in knowing what to do.”

—With assistance from Jordan Rubin.