As I’ve written before, the Trump administration has fostered some unusual and creative legal theories, such as treating dissenting opinions in prior Supreme Court cases as though they were precedent and stating that there can be no obstruction of justice when there is no underlying crime, except when they decide to prosecute a judge and a court worker for exactly that. So, at this point, it’s hard to say any crazy legal theory this administration might espouse would be a surprise.
But I have to say I hadn’t realized that the latest bugaboo in right wing legal circles is an attempt to get the Supreme Court to ban the use of nationwide injunctions in the lower federal district courts. Mike Pence focused on this in his address to the Federalist Society, stating, “The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them. A Supreme Court justice has to convince four of his colleagues to uphold a nationwide injunction — but a single district court judge can issue one, effectively preventing the duly-elected president of the United States from fulfilling his constitutional duties”. President Trump reiterated Pence’s message at a subsequent rally, declaring “Activist judges who issue nationwide injunctions based on their personal beliefs undermine democracy and threaten the rule of law”.
Attorney General Barr followed up on this theme in speech to the American Law Institute, stating “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…If we consider how things ought to work, it is perverse. Rather than an orderly pattern of litigation in which the government loses some cases and wins others, with issues percolating their way through the appellate courts, we have an interdistrict battle fought with all-or-nothing injunctions”. His verbiage almost directly matches that of Justice Thomas who has written in one his classic solo opinions, “These 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”.
The hypocrisy of Republican sudden support for this legal position is truly a wonder to behold. Nationwide injunctions put in place by federal district courts were relatively rare until President Obama was elected. They were used to block the Labor Department’s plan to raise the salary limit under which overtime must be paid. They were used to block Obama’s executive actions on DACA as well as his order to provide protections for transgender students. As far as I can tell, although many Democrats objected to the legal reasoning behind these injunctions, not a single one proposed a ban on their use.
It is only now, when President Trump has had his executive orders, such as the rescission of DACA and the Muslim ban, blocked by more liberal district courts, that the Republicans “discover” that nationwide injunctions effectively prevent “the duly-elected president of the United States from fulfilling his constitutional duties” and are attempting to get them banned. Trump and the Republicans are taking a two-pronged approach to getting the ban implemented. First, they are looking at legislation that would restrict such injunctions, although the constitutionality of such a law is questionable. The path with a greater, but still limited, chance of success is to get a case in front of the Supreme Court that the Court could use to restrict those lower court injunctions. In fact, the DOJ essentially asked for such a ban as one of their arguments in their appeal of the injunction blocking the original Muslim ban to the Supreme Court. The Court did not specifically rule on that issue.
In his speech, after denigrating the Bill of Rights by quoting former Justice Scalia as saying “Every banana republic has a bill of rights”, AG Barr focused on the separation of powers as the core of the argument against nationwide injunctions. And, indeed, the proliferation of these injunctions represents the interplay between the three branches of our government. Almost permanent legislative gridlock has prompted the executive branch to act more and more unilaterally via executive orders or through agency rules and regulations. That, in turn, has prompted the courts to respond to executive unilateralism with these nationwide injunctions when it believes those actions are in conflict with existing law and/or the Constitution.
The right’s argument against nationwide injunctions is that these decisions apply to broad classes of plaintiffs whose standing has not been vetted by the courts. This is what Pence is talking about when he declares “district judges can decide no more than the cases before them”. Their decisions should not cover plaintiffs or defendants who live thousands of miles away in an entirely different federal court district who are not actual parties to the case being decided. Those supporting the ban also argue that having these cases pass through the normal sequence of appellate court challenges will mean that all the possible legal and constitutional issues involved would have been thoroughly explored by the time the case actually reaches the Supreme Court. In addition, these injunctions may interfere and conflict with precedent that has been set in other district courts but whose validity has not yet been resolved by the Supreme Court.
It is also true that, as Justice Thomas noted, the use of nationwide injunctions encourages venue shopping. Conservatives have used the Fifth District as their go-to venue for getting the legal result they want for years. That district was used most often to block Obama’s executive orders and is currently the battleground for the absurd suit to declare the ACA unconstitutional which Barr’s DOJ has decided to join in another break with DOJ tradition. Similarly, many of the injunctions blocking Trump’s executive orders, such as the Muslim ban, have come from the more liberal Ninth Circuit.
The opponents of the ban simply point to the absurd situations that would result if the ban were imposed. Take, for instance, the aforementioned injunction against Obama’s Department of Labor’s overtime rules by the Fifth Circuit. According to Pence’s view, those rules would still apply to the rest of the country just not to the companies or states that brought the specific case opposing those rules or those companies and states covered by the Fifth Circuit’s jurisdiction, primarily Texas and Louisiana. A separate example is the blocking of the Muslim ban by the Ninth Circuit. Again, according to the supporters of the ban, only those specific plaintiffs in the case would get relief but the thousands of travelers still outside the country, many of whom would be unknown to the court, would still be prevented from entering the country. Essentially, we would end up with a mish-mash of conflicting laws depending on what federal court district you resided in or ran a business and a proliferation of cases that are exactly identical with the exception of the plaintiffs involved. It is entirely an entirely unworkable situation.
More importantly, the use of nationwide injunctions is essential for combatting the abuse of executive power. Barr is right when he casts the issue as one involving the separation of powers, because the real issue is that opponents of these nationwide injunctions, like Barr, believe in the theory of the “unitary executive” and are interested in restricting any limits on executive power. By limiting district court decisions to protecting only those involved in specific cases, a President’s unconstitutional executive order would still be binding on the rest of the country and would remain so until the Supreme Court ultimately ruled on the issue.
That is also why it is unlikely that the Supreme Court will ban the use of nationwide injunctions in lower federal courts, because to do so would just increase not only the Court’s workload, but also the load on the lower courts, exponentially, with increasing pressure for the Supreme Court to take cases and render decisions in an even more timely manner. The Court is simply not designed or prepared to do that. Of course, we do know that there is at least one justice, Thomas, who would vote to implement the ban and, to be honest, with the current makeup of this Court, it is hard to be certain about their decision in any case that has Federalist Society backing.
More broadly, what the movement by Republicans to ban the use of nationwide injunctions does show is the party’s increasing comfort with authoritarianism and a rejection of the rule of law and the separation of powers. That is of a piece with their tacit acceptance of Trump’s near total rejection of the constitutional responsibilities of the Congress for executive oversight and the refusal to address any legislative work until Democrats in the House shut down all of their current investigations. And it is yet another sign of the increasingly rapid erosion of American democracy.
Originally published at https://thesoundings.com on May 23, 2019.