“Fifty-four nationwide injunctions have been issued against the Trump Administration since January 20, 2017,” the DOJ told The Epoch Times, citing department estimates. This is more than double the number of nationwide injunctions the previous administration had faced during its entire eight years. The proliferating practice of federal judges ruling beyond the scope of a particular case, in some orders known as nationwide injunctions, has been a longstanding cause for concern for the administration and several top members of the judiciary.
Comparatively, an average of 1.5 such injunctions was issued per year against the administrations of Presidents Ronald Reagan, Bill Clinton, and George W. Bush. Meanwhile, the administration of President Barack Obama faced 20 nationwide injunctions—or an average of 2.5 per year—during its eight years, according to Attorney General William Barr.
The White House has repeatedly criticized the unprecedented use of court orders by unelected federal judges to impose their policy preferences across the nation. Last year, Trump decried the impact of “judicial activism” on the nation’s security, society, and economy.
“When judges write policy instead of applying the law, they impose sweeping changes on millions of Americans without the benefit of legislative debate, public rulemaking, or the consent of the governed,” Trump said in a November speech. “As a result, these highly political rulings inflict painful damage on our security, society, and economy, imposed on workable businesses, workers, families, and law enforcement.”
David Reischer, attorney and CEO of LegalAdvice.com, said he believes nationwide injunctions are inconsistent with constitutional limits on judicial power and allow politicians to avoid working together to come up with solutions to national issues.
“Nationwide injunctions relieve the politicians of making compromise on important matters and only serves to delay final resolution where final determinations are most desperately needed,” Reischer told The Epoch Times in an email. “As such, nationwide injunctions only serve to ‘gum up the works’ and prevent solutions of important social issues.”
Many of the nationwide injunctions issued have targeted crucial immigration policies in dispute, preventing their application across the nation while the cases proceed through the courts. This was seen most recently in a case where a federal district court ruling blocked the Trump administration from enforcing its new interpretation of its “public charge” rule—a regulation that restricted new immigrants from receiving green cards if the individual is deemed likely to become primarily dependent on the government for assistance such as food stamps or Medicaid. The rule will consider a person a public charge if they receive at least one government benefit for more than 12 months in any 36–month block.
The rule was challenged by several states and immigration groups, leading to injunctions that prevented the rule from going into effect on Oct. 15, 2019. Two federal appeals courts—the 4th Circuit and the 9th Circuit—lifted similar injunctions in December 2019. But the 2nd Circuit has refused to set aside a pair of injunctions issued by a New York District Court, prompting the Trump administration to file an emergency request (pdf) to the Supreme Court earlier in January to lift those blocks.
The Supreme Court reversed the 2nd Circuit’s decision in late January, allowing the Trump administration to enforce the rule while the appeals are pending.
As part of the order in the “public charge” case, Supreme Court Justice Neil Gorsuch issued a rebuke in a concurring opinion, saying that the court at some point needs to “confront” the “real problem” of nationwide injunctions. Justice Clarence Thomas, who previously issued his own rebuke of the practice in the 2018 travel ban case, joined in that opinion.
“Today, the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois,” Gorsuch wrote (pdf). “But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem.”
He says such orders raise “serious questions about the scope of courts’ equitable powers under Article III” of the Constitution. Judges have made “rushed, high-stakes, low-information decisions” because this practice forces parties to “rush from one preliminary injunction hearing” instead of “spending their time methodically developing arguments and evidence in cases limited to the parties at hand.”
Thomas issued a similar critique in 2018 in the landmark case, Trump v. Hawaii, which upheld Trump’s Presidential Proclamation 9645. The proclamation allowed the administration to enforce the refusal of entry into the United States of travelers from multiple “high-risk” Islamic countries.
Thomas said these injunctions are “beginning to take a toll on the federal court system” because they prevent “legal questions from percolating through the federal courts,” encourage “forum shopping,” and make “every case a national emergency for the courts and the Executive Branch.”