We are facing a constitutional crisis. Through the use of nationwide injunctions, a group of liberal federal district judges are fighting to maintain Obama era policies until President Donald Trump leaves office.
And now, President Donald Trump is fighting back as his administration seeks a case to be brought in federal court against the practice.
These judges’ actions are an attack on our system of government undermining the value of voting and the public’s trust in the impartiality of the judicial branch. These injunctions must be halted, either by the Supreme Court or by legislation.
Nationwide injunctions, which are also called universal or national injunctions, are issued by federal district judges and prohibit the federal government from enforcing laws or policies against anyone, not just the plaintiffs in the case.
There have now been 37 nationwide injunctions issued against the Trump Administration, which is significantly more than were issued in the entire 20th century. In contrast, there were only two nationwide injunctions during the first two years of the Obama Administration; and there were no nationwide injunctions issued during the first 175 years of our Republic.
Recently, U.S. Attorney General Bill Barr gave a speech attacking nationwide injunctions, saying that the bar for getting one from a district judge is too low: “When Congress passes a statute or the President implements a policy that is challenged in multiple courts, the Government has to run the table — we must win every case. The challengers, however, must find only one district judge — out of an available 600 — willing to enter a nationwide injunction. One judge can, in effect, cancel the policy with the stroke of the pen.”
And this is bad for democracy, Barr said, “Nationwide injunctions undermine the democratic process, depart from history and tradition, violate constitutional principles, and impede sound judicial administration, all at the cost of public confidence in our institutions and particularly in our courts as apolitical decision-makers dispassionately applying objective law.”
Barr is not the first prominent conservative to take aim at these injunctions. Barr’s predecessor, former U.S. Attorney General Jeff Sessions, has also denounced the injunctions. Sessions stated, “Increasingly, we are seeing individual federal district judges go beyond the parties before the court to give injunctions or orders that block the entire federal government from enforcing a law or policy throughout the country…. This trend must stop. We have a government to run. The Constitution does not grant to a single district judge the power to veto executive branch actions with respect to parties not before the court. Nor does it provide the judiciary with authority to conduct oversight of or review policy of the executive branch. These abuses of judicial power are contrary to law…”
Supreme Court Justice Clarence Thomas has indicated his skepticism of the legitimacy of the injunctions. Thomas wrote, “These [universal] injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch. I am skeptical that district courts have the authority to enter universal injunctions… They appear to be inconsistent with longstanding limits on … the power of Article III courts.”
Elections must have consequences. Members of Congress and Presidents are elected to set and implement federal laws and policies; and unelected, unaccountable lower court judges must not be allowed to obstruct the policies of the elected branches of the government indefinitely. The Supreme Court will soon weigh in on nationwide injunctions and make it clear to district court judges that they have no authority to issue these injunctions.
If the Court fails to do so, then it will fall to Congress to enact legislation to end these acts of judicial tyranny once and for all.
Richard McCarty is the Director of Research at Americans for Limited Government Foundation.
