Should one unelected and uncountable official be permitted to obstruct policy prerogatives of the elected president of the United States?
This is, at base, the question behind President Donald Trump’s most recent feud with the federal judiciary.
The matter came to a head when U.S. District Judge James Boasberg enjoined the president from deporting members of the Venezuelan gang Tren de Aragua. The American people elected Trump, in part, on his promises to reverse the open borders policy of the Biden administration and to deport dangerous aliens.
Tren de Aragua is more than dangerous. It began as a Venezuelan prison gang and has transformed into a transnational criminal organization engaging in the drug trade, human trafficking, and extortion.
Since Inauguration Day, the Trump administration has faced multiple lawsuits from activists who oppose his initiatives in the areas of immigration reform, cutting the federal workforce and ending the racial spoils system.
According to Sarah Harris, the acting solicitor general, these legal actions have resulted in numerous nationwide injunctions — 15 in February alone.
An injunction is an equitable remedy that compels a person to undertake or refrain from undertaking a certain action. It has existed for hundreds of years. However, injunctions typically do not apply to individuals or entities who are not parties to the judicial proceeding. A nationwide or nonparty injunction applies to strangers to the litigation.
Justice Clarence Thomas has noted that nationwide injunctions do not enjoy a lengthy pedigree and did “not emerge until a century and a half after the founding.” The use of nationwide injunctions skyrocketed in the 21st century. The George W. Bush administration faced six; the Obama administration 12; the first Trump administration 64; and the Biden administration 14. Interestingly, 85% of these nationwide injunctions were granted by judges appointed by a president from the opposing political party.
The constitutional argument against nationwide injunctions rests on Article III, which limits judicial power to cases and controversies. In other words, a judge’s grant of relief is limited to the parties before the court.
For example, if a Tren de Aragua gang member sought an injunction to stop his deportation, a favorable ruling would apply only to him and not his comrades who did not join the lawsuit. A nationwide injunction, on the other hand, applies to all the gang’s members even though they are not parties to the case.
Sound policy arguments counsel against nationwide injunctions. Most cases decided by the Supreme Court have percolated in the lower federal courts, where various fact patterns and legal arguments are considered and developed. Nationwide injunctions are usually fast-tracked to the Supreme Court. Therefore, the court does not have the benefit of extensive litigation in multiple districts to aid in the decision-making process.
Nationwide injunctions undermine federal rules allowing class-action litigation. Litigants seeking a class action must jump through multiple procedural hoops before a class is certified. It is a rigorous process and was so designed. The availability of nationwide injunctions encourages lawyers to bypass the class action rules and swing for the fences when seeking a remedy.
A judiciary granting numerous nationwide injunctions is not perceived as a neutral umpire. Nationwide injunction cases often involve political hot-button issues. Citizens notice that the lion’s share of judges halting an administration’s policy initiatives were appointed by the opposing party. Americans are bound to lose respect for the judiciary and view it as just another political branch.
Congress should act to abolish or restrict nationwide injunctions. The Constitution vests Congress with the power to make rules governing the proceedings of lower federal courts. While Democrats undoubtedly are cheering district judges who thwart the Trump agenda, they should realize that in four years, the shoe might be on the other foot.
At a minimum, Congress should require that pleadings seeking a nationwide injunction be randomly assigned. Litigants should not be allowed to cherry-pick a judge believed to be favorable to their ideology. Another possibility would be to assign nationwide injunction cases to three-judge panels so that a single judge does not control national policy.
Aside from assignments, Congress could limit a district judge’s decision to the federal circuit on which they sit. For example, a North Carolina district judge’s decision would be limited to South Carolina, North Carolina, Virginia, West Virginia and Maryland (these judicial districts comprise the 4th Circuit).
Trump’s critics accuse him of acting like a monarch. In truth, Boasberg and company are the real kings and queens. They are unelected, issue decrees that bind the nation and pretend to be above the fray in their judicial regalia. Congress is the first resort and the Supreme Court in the last should clip their wings and end the era of the nationwide injunction.
William J. Watkins Jr. is a research fellow at the Independent Institute and author of “Crossroads for Liberty: Recovery the Anti-Federalist Values of America’s First Constitution.”
