(Reuters) - Nearly everyone who spoke Tuesday at a Senate Judiciary Committee hearing on the phenomenon of nationwide injunctions agreed that our constitutional system of checks and balances did not anticipate the now-ritual cycle of litigation to shut down executive-branch policies via sweeping injunctions issued by a lone trial judge. Many of the senators and a majority of the witnesses who appeared before the committee also agreed that something needs to change, regardless of which political party controls the presidency. But the 90-minute hearing was notably short on consensus about how to address nationwide injunctions – or even whether that’s a job for Congress.
Nationwide injunctions (which are also called national, universal and non-party injunctions), became a political weapon in the last years of the Obama administration, according to Senate testimony from Notre Dame law professor Samuel Bray. Republican state attorneys general realized they could file suits challenging Obama policies in friendly federal courts, asking trial judges not simply to invalidate rules and regulations but to enjoin enforcement of the policies in every jurisdiction. Democratic AGs and advocacy groups turned the tables in the Trump era, with remarkable success. According to the testimony of Jesse Panuccio, who served as a high-ranking Justice Department official until he joined Boies Schiller Flexner in 2019, Obama opponents won 19 nationwide injunctions blocking his policies; Trump opponents have so far obtained 55.
The Solicitor General of the District of Columbia, Loren AliKhan, and University of San Diego law professor Mila Sohoni told the Senate Judiciary Committee that such injunctions actually date back to the early 1900s and are permissible under Article III of the Constitution. AliKhan and Sohoni also said the Administrative Procedure Act empowers federal judges to block executive-branch regulations. But the prevailing sentiment at the hearing seemed to align with testimony from Michigan law professor Nicholas Bagley, who described nationwide injunctions as “equal opportunity offenders, thwarting both Republican and Democratic initiatives alike.” He argued that in the long run, the device will inhibit effective governance and undermine the judicial process.
“Somebody needs to fix it because I don’t think you can run the country this way,” said Senate Judiciary chair Lindsey Graham, the South Carolina Republican.
But there’s the rub: Who is responsible for disrupting a process that has quickly become entrenched? And what exactly should the fix look like?
It’s no secret that the Supreme Court is thinking about nationwide injunctions. Some justices have voiced reservations about their use, most recently in a Jan. 27 concurrence from Justice Neil Gorsuch, who was joined by Justice Clarence Thomas, in Department of Homeland Security v. New York (140 S.Ct. 599). Justice Sotomayor, on the other hand, suggested in her Feb. 21 dissent in Wolf v. Cook County (2020 WL 858799) that the government is cynically capitalizing on the court’s concerns about overly-expansive injunctions. Clearly, said Notre Dame professor Bray, the justices seem to feel like they’re under pressure. “The status quo is hard to sustain,” he said.
DC Solicitor General AliKhan and San Diego professor Sohoni urged the Judiciary Committee to wait for the Supreme Court to set precedent on the proper scope of preliminary injunctions before attempting legislation. AliKhan said appellate review already provides an appropriate check on trial judges who have exceeded their authority. Sohoni said that the Supreme Court is always the final arbiter of challenges to executive-branch actions. Nationwide injunctions, she said, just freeze policies until the justices determine their legality.
But former DOJ official Panuccio pointed out that because nationwide injunctions are a procedural issue, the Supreme Court can’t address their scope until the justices side with challengers on the merits. In 2018’s Trump v. Hawaii (138 S.Ct. 2392), for instance, the justices did not reach the scope and propriety of injunctions blocking President Trump’s travel ban because the court upheld the policy. (Justice Thomas, as you may recall, wrote a concurrence in that case casting doubt on judges’ power to issue what he called “universal” injunctions.)
Panuccio told the Judiciary Committee that Congress should step in to legislate against a problem that is partly of its making. Congress, he said, has allowed the executive branch to horn in on the business of lawmaking and has left it to the judiciary to review the president’s policies. Now it’s time, he said, for Congress “to exercise its atrophied legislative muscle.” (Professors Bray and Bagley also said they were amenable to legislation, but Bagley said it might be prudent to wait a term or two to see if the Supreme Court addresses the problem.)
Senator Mike Lee, the Utah Republican, noted that Republicans in both the Senate and the House have introduced bills that would prohibit trial judges from issuing injunctions that extend beyond the parties in the case or the geographic limits of their court. The Senate bill, introduced last September, is before the Judiciary Committee. “If we don’t act, it may be years or even decades, possibly, before the courts act,” Lee said.
But Senator Richard Blumenthal, the Connecticut Democrat, said he doubted that Congress could do a better job than the Supreme Court of establishing criteria for injunctions. “Let’s be real here,” he said. “We’re never going to have a really wise and definitive result from the U.S. Congress on this complex an issue. Maybe we’ll have no result. But more likely, we’re just going to say to the courts, ‘Hey, deal with this problem.’”
Graham, who said at the opening of the hearing that he didn’t know whether Congress or the Supreme Court is best positioned to confront nationwide injunctions, closed with a warning. “My concern is that this is only going to get worse over time,” he said. “People are going to lose faith in the courts … They’re putting themselves in a bad spot.”