The concept of the national injunction, which was relatively uncommon in American law, has gained traction thanks to a particular federal district judge aiming to obstruct policies from the political realm. This rising trend has caught the attention of Supreme Court justices from both sides of the aisle, who have issued cautions regarding its implications.
Judges like Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have voiced their discontent with these injunctions through written critiques. Chief Justice John Roberts and Justice Elena Kagan have similarly expressed concerns in public forums. For instance, in the 2018 Trump vs. Hawaii case, Thomas deemed these injunctions “legally and historically doubtful.” Kagan, speaking at a conference, noted the impropriety of a district judge halting national policies without following the proper procedures.
The core issues before the court are quite significant. Is the electoral process still paramount, or are lower court judges effectively governing the country?
Governors from both political parties have also raised objections. Last year, Elizabeth Pleger, an attorney for Joe Biden, cautioned that a nationwide injunction would create “serious disruptions” within administrative functions. Earlier this year, Deputy Attorney General Sarah Harris even referred to these injunctions as a “trend.”
The Supreme Court now faces the task of determining whether these bipartisan concerns are rooted in genuine constitutional principles, or if they’re merely convenient political stances. Take, for example, Mary McCord. She previously served in the Obama administration and co-signed a brief supporting the national injunction, but how did she react when the court applied them against her own administration?
This Thursday, the Supreme Court will deliberate over Trump v. Kasa, Inc., alongside related cases like Trump v. Washington and Trump v. New Jersey. These discussions revolve around the Trump administration’s efforts to limit the reach of national injunctions handed down by district judges in places like Maryland, Massachusetts, and Washington. Such injunctions have stymied the enforcement of the President’s executive order on birthright citizenship, despite the court’s lack of a definitive ruling on its legality.
It’s worth mentioning that I filed a brief for the Claremont Institute’s Center for Constitutional Law, urging the court to return to the original interpretation of the 14th Amendment.
The controversy surrounding national injunctions stems right from the Constitution itself. Article III, Section 2, suggests that jurisdiction should focus on specific cases or controversies, rather than overarching national policies. The national injunction concept expands well beyond the actual parties involved.
Meanwhile, Article III, Section 1 designates the Supreme Court as the judicial body, indicating that “there is a lower court that Congress has created.” In practice, a federal judge based in Maryland or Washington shouldn’t be able to issue a ruling that applies nationwide.
National injunctions can throw a wrench into government operations regularly. Conflicting injunctions from different district courts can lead to legal chaos, making compliance nearly impossible. A clear example of this occurred in 2022 when the Supreme Court’s decision in Dobbs overturned Roe v. Wade. Judge Matthew Kacsmaryk in Texas issued a nationwide injunction halting the FDA’s approval of Mifepristone, a common abortion medication. Hours later, Judge Thomas Rice in Washington entered a conflicting order, restricting the FDA from altering approvals of the same drug in part of the country.
These injunctions also encourage a problematic practice known as forum shopping. It’s no surprise that jurisdictions with a more liberal bent, such as Massachusetts, Maryland, and Washington, have produced most national injunctions during President Trump’s tenure. Justices Roberts and Kagan have raised alarms about this development. Some members of Congress, legal scholars, the American Bar Association, and even the US Judicial Conference have suggested randomly assigning judges to handle cases that could lead to national injunctions.
While such reforms might mitigate forum shopping, they do not resolve the fundamental constitutional issues at stake.
If the court sides with the Department of Justice and confines the injunctions to the immediate parties, it will also need to clarify who exactly qualifies as a party. Does it just encompass the appointed plaintiffs? Or will it include others listed as plaintiffs? Interestingly, what if activist groups claim to represent all their members?
If any of these broader definitions are adopted, it might effectively renew national injunctions, albeit under a different guise. The likely outcome seems to be that the court will curb any further expansion of such lower-court powers, opting instead for existing mechanisms within class action procedures found in federal regulations.
The implications of this ruling are significant, affecting hundreds of cases launched against presidential enforcement actions. At stake is nothing less than the integrity of the last election. So, the fundamental question remains: Is the electoral process vital, or are unelected judges making the rules from lower courts?
