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The Supreme Court Just Discovered Nationwide Injunctions Are Bad—Right As Trump Trump Needs Them Gone

from the timing-is-everything dept

The Supreme Court just discovered that nationwide injunctions are problematic. How convenient that this revelation came right as Donald Trump returned to office with plans to rule by executive fiat.

Last week’s big Supreme Court decision in Trump v. CASA was trumpeted in the media as being about birthright citizenship, even though that was only the vehicle with which to actually explore the issue of nationwide injunctions.

The ruling effectively bans (or at least greatly limits) the ability of judges to issue such nationwide or “universal” injunctions, stating that they exceed the power of a district court:

Traditionally, courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit. The injunctions before us today reflect a more recent development: district courts asserting the power to prohibit enforcement of a law or policy against anyone. These injunctions—known as “universal injunctions”—likely exceed the equitable authority that Congress has granted to federal courts. We therefore grant the Government’s applications to partially stay the injunctions entered below.

Because of the issue underlying this injunction (the executive order effectively reinterpreting birthright citizenship out of the Constitution), the ruling is being interpreted through deeply partisan eyes. The six Justices who signed onto the majority opinion are those appointed by Republican Presidents, the dissent was from the three Justices appointed by Democratic Presidents.

So, the issue is absolutely partisan, but I’d argue the partisanship is more in the timing and specifics of this, rather than the actual final decision. And that’s because the MAGA/GOP world was more than happy to use such nationwide injunctions against Biden. Indeed, they regularly went forum shopping to specific judges in Texas for exactly that reason.

And, arguably, the Supreme Court decision actually leaves an out to suggest that some nationwide injunctions will still be allowed, which likely means only those against Democratic Presidents. Steve Vladeck explains:

Contra some headlines, Justice Barrett’s majority opinion doesn’t foreclose “universal” injunctions in all cases. Rather, it holds that injunctive relief that directly benefits non-plaintiffs is appropriate only when it’s necessary to ensure that the plaintiffs themselves get “complete” relief. (An illustrative example of when individual plaintiffs will need universal relief is in redistricting cases—where states often need to redraw maps on a statewide basis to redress a successful challenge by even a single plaintiff.) Put another way, if an injunction limited to the plaintiffs in that case will give those plaintiffs all the relief to which they’re entitled, nothing broader is permitted. That’s the holding, in a nutshell.

But here’s the thing: the Supreme Court’s sudden concern about nationwide injunctions rings hollow when you look at the actual data. Just last year, there was a fascinating Harvard Law Review look at nationwide injunctions, and how both sides of the traditional political divide have been using them. When Democrats are in power, Republicans rush to partisan judges to block their actions with nationwide injunctions, and when Republicans are in power, Democrats do the same.

The nationwide injunction increase appears to be a symptom, more than the disease. As Congress has become increasingly unable to function, both parties have been trying to exert greater and greater executive power. The rise in nationwide injunctions appears to mainly be in an attempt to push back on that—though in directly partisan ways, depending on who is in power.

The numbers are damning: of the 78 nationwide injunctions issued during the Trump and Biden Administrations, 93.6% were issued by judges appointed by a president of the opposing political party. That’s not coincidence; that’s weaponization.

As that HLR piece notes:

Notably, nationwide injunctions are not only increasing in frequency but also overwhelmingly issued by judges appointed by Presidents of the opposite party from the administration whose actions the judges are enjoining. Of the 78 nationwide injunctions issued during the Trump and Biden Administrations, 93.6% of injunctions were issued by judges appointed by a President of the opposing political party. Often, it is the policies that relate to politically hot-button issues or a President’s policy priorities that are enjoined: for President Obama, it was LGBTQ+ civil rights; for President Trump, it was immigration; and for President Biden, it was policies combatting the COVID-19 pandemic.

Given all that, you could see how there are actually good reasons why nationwide injunctions might be seen as a problem overall. They’re creating scenarios where not only is there political calculus likely driving some of the judicial decisions, but also it allows plaintiffs to take many shots on goal. Again, the HLR piece describes how many cases may be filed on the same issues in multiple courts, and you just need a single nationwide injunction to “win” the issue:

the asymmetrical effects of preclusion ensure that nationwide injunctions are a powerful tool for political opponents who can challenge the policy in multiple venues. Practically speaking, a successful defense against a nationwide injunction in one court is barely a win for the government at all: because that decision has no preclusive effect on new plaintiffs, other plaintiffs are free to bring the exact same lawsuit elsewhere and “[s]hop ‘til the statute drops.” All it takes is one judge siding with the plaintiffs to enjoin the challenged law. These asymmetric consequences force the federal government to engage in a game of whack-a-mole. If enough plaintiffs sue — and if they can each target the forum most likely to be hostile to the government’s action — it seems almost inevitable that the action will be nationally enjoined. A prominent example is President Biden’s COVID-19 vaccine mandates: At least four judges declined to issue nationwide injunctions against Executive Order 14,042, but ultimately one did. One judge declined to issue a nationwide injunction against Executive Order 14,043, but still the policy was enjoined nationally. The same is true for the Centers for Medicare & Medicaid Services’ vaccine mandate. And at least four different judges declined to issue nationwide injunctions against President Biden’s military vaccine mandate, but, ultimately, two enjoined the policy nationally.

Given all that, there’s a reasonable argument that the Supreme Court’s ruling on nationwide injunctions isn’t inherently bad. They were problematic when Stephen Miller’s org was rushing cases to single-judge districts in Texas, and they continue to be problematic today.

But, what makes last week’s decision so overtly political is the fact that the Supreme Court waited until now to argue that such nationwide injunctions were invalid as a remedy. They’ve had many years to take on the issue and somehow never bothered to call them out until now? That’s the part that seems suspect.

And the timing is especially questionable, given that we’ve just entered the second Trump administration, where he and his regime have made it quite clear they intend to rule almost entirely through executive fiat, with little concern for what Congress does (or is unable to do). And that’s a world in which the judiciary (in theory) plays a much bigger role.

In the end, I think the issue of nationwide injunctions isn’t really an issue of “nationwide injunctions,” but rather what happened that resulted in such injunctions becoming a regularly used political weapon: (1) a massive increase in attempts to rule by executive fiat, and (2) the rise in forum shopping for judges (especially in single judge courts).

Thus, it seems like the structural reform that is better served than simply banning nationwide injunctions is making it clear that we actually do have three co-equal branches of government, rather than a “unitary executive” and also making procedural changes to limit judge shopping.

It seems quite clear that the Supreme Court made this decision for partisan reasons, given the timing, but just the fact that it didn’t do so in conjunction with a strong limit to ruling by executive fiat is equally worrisome. The two need to go hand in hand. Instead, we’re seeing the reverse. The Supreme Court seems willing to bless executive overreach… but only when the Republicans do it. When Trump violates constitutional norms, the Court finds ways to look the other way. When Democrats governed, suddenly every procedural safeguard mattered.

Separately, while some have argued that the nationwide injunction ban might not be as bad as some people fear because plaintiffs can just bring class action lawsuits instead, as Vladeck notes, this Supreme Court has also limited the ability to bring class action lawsuits:

Class actions are harder to bring, at least largely thanks to the Supreme Court—and a series of rulings from the early 2010s that ratcheted up the requirements for certifying nationwide classes. On top of that, states (and organizations like CASA) can’t be class-action plaintiffs (the Federal Rule of Civil Procedure that authorizes class-wide relief requires the plaintiffs to be persons). And even when a district court determines that certification of a nationwide class is appropriate, (1) it often takes some time for the district court to so conclude; and (2) such a ruling is itself subject to an immediate, interlocutory appeal—which can both slow down the litigation and give appellate courts an early opportunity to reject a district court’s decision to certify a nationwide class. So as with the “complete relief” question, the viability of this alternative legal procedure for blocking federal policies on a nationwide basis really depends upon just how available nationwide class actions turn out to be in practice—not just in general, but at the outset of litigation, as well.

As for judge shopping, Chief Justice Roberts had actually spoken out about the problem in the past and last year tried to implement a new rule that would make judge assignments more randomized. But judges on the Fifth Circuit and across Texas — where most of the more significant forum shopping against Biden happened — simply announced that they would ignore the rule, and Roberts effectively backed down.

Some might wonder why the Roberts Court would effectively kneecap the judiciary, of which it’s a key part. But, again, the details suggest that the CASA ruling effectively takes power away from lower courts, but gives it to the Supreme Court, in that there will be a lot more moves to try to get injunctions via the emergency or shadow docket. Vladeck again:

In other words, Kavanaugh is effectively inviting both the government and litigants challenging government policies to use the emergency docket even more—not just in cases in which there is some compelling exigency, but in any case in which there’s a need for that kind of nationwide (interim) uniformity. Depending on what happens with class actions, there could be a lot more of those very soon (e.g., if we start seeing numerous different lawsuits challenging the same policy, and those suits produce inconsistent rulings). As busy as the shadow docket has been this term, apparently, Justice Kavanaugh is cool with it being even busier. But will his colleagues agree?

But the nature of the Supreme Court’s ability to pick and choose which shadow docket issues it will—and will not—take up means that it can continue to be extremely partisan:

One of the central problems with the Court’s approach to emergency applications in recent years has been its seeming inconsistency—granting emergency relief to Republican presidents or governors in very similar contexts to those in which it denied emergency relief to Democratic presidents or governors (in two immigration cases, for instance, the Court ruled for the Biden administration at the merits stage after denying applications to stay universal injunctions against the Biden policies). Do we expect the justices to all of a sudden be consistent when it comes to their resolution of emergency applications—especially if they’re getting more of them? And without written explanations (the norm in such cases), how will we even know?

The end result then appears to be the worst of all worlds. While there are reasonable arguments against nationwide injunctions, this Supreme Court chose to do this in the worst possible way, waiting until there was an extremist Republican in power who was breaking all the norms and rules regarding checks and balances, and refusing to actually deal with the underlying issues. Then, in its place, it puts forth a system which it—the Supreme Court alone—gets to decide which presidents have executive authority, and which ones don’t.

And that, rather than the actual decision, is why this seems like it was a clearly partisan decision, which once again diminishes the legitimacy and respect for the judiciary.

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