Justice Clarence Thomas opened the door to future Supreme Court sparring over an issue with profound legal and practical implications that go well beyond Trump’s travel ban in his concurring opinion in Trump v. Hawaii.
Thomas — the underappreciated revolutionary of the Supreme Court, in the sense of his work to restore founding principles in the law through philosophically consistent originalist jurisprudence – called into question the very idea that a single federal judge in Hawaii can impose an injunction barring a presidential executive order against anyone nationwide in the first place.
If his words are any indication, the practice of issuing “universal injunctions” may face the scrutiny of the highest court in the land. He writes:
Injunctions that prohibit the Executive Branch from applying a law or policy against anyone…have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. 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.
I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality. [Emphasis mine]
Universal injunctions have been a particularly powerful weapon for “The Resistance.” As Attorney General Jeff Sessions noted in a March 2018 editorial, 22 such injunctions have been leveled against the Trump administration on politically charged issues ranging from DACA, to sanctuary cities, to transgender military service. Sessions asks:
[W]hy does this matter to non-lawyers? This is a question of who gets to decide the policy questions facing America: Is it our elected representatives, our elected president, or unelected lifetime-appointed federal judges?
Nationwide injunctions mean that each of the more than 600 federal district judges in the United States can freeze a law or regulation throughout the country — regardless of whether the other 599 disagree. That’s a threat to the proper functioning of the federal government for a number of reasons.
Indeed. Universal injunctions represent a rolling constitutional crisis in terms of fundamental questions of separation of powers and checks and balances. They also illustrate a derelict legislative branch that prefers to see critical issues punted to courts rather than representing the wishes of their constituents by passing laws.
As Thomas chronicles, universal injunctions predate the Trump administration. Like so many of the maladies now facing our country, these injunctions can be traced back to the 1960s. Thomas cites as the first instance of its usage a 1963 case called Wirtz v. Baldor Elec. Co. Wirtz concerned the secretary of labor’s setting of the minimum wage in a particular industry.
In its ruling, the D.C. Circuit Court argued for the broad relief of a universal injunction under the logic that executive officers should honor court decisions “in all cases of essentially the same character.” If a court decides an issue, the same relief given to the plaintiff in the case should be provided to others with similar causes of action.
Thomas quotes the D.C. Circuit Court as noting that the case at hand was “clearly a proceeding in which those who have standing are here to vindicate the public interest in having congressional enactments properly interpreted and applied.” Therefore, if one person had standing to sue, the Court should “enjoin the effectiveness of the Secretary’s determination with respect to the entire industry,” according to the ruling.
While not frequently used in the ensuing decades, universal injunctions have now exploded. Beyond the Wirtz precedent, on what are they actually based? In Thomas’ view, they are effectively an invented remedy. “Defenders of these injunctions contend that they ensure that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch,” he writes.
Other legal scholars defend universal injunctions on practical grounds, such as in handling cases dealing with cross-border issues like immigration, or complex regulatory schemes. Thomas weighs this rationale against several competing factors.
First, he asserts that universal injunctions have no legal basis, quite a commentary on just how unmoored our legal system – where desired outcomes increasingly trump first principles – has become from constitutional jurisprudence under progressive assault. “If district courts have any authority to issue universal injunctions, that authority must come from a statute or the Constitution,” he writes. “No statute expressly grants district courts the power to issue universal injunctions.” That this is the case tells you everything you need to know about the perilous state of our courts.
Thomas also argues that universal injunctions do not square with “historical limits on equity and judicial power.” On the former, Thomas traces the history of the courts’ authority to grant equitable relief from the English Court of the Chancery, to the Federalist Papers to present. In Thomas’ reading, the history points to a “more limited construction” of equitable authority, whereby, as in England “Equity allowed the sovereign to afford discretionary relief to parties where relief would not have been available under the ‘rigors of the common law,’” and in America “courts of equity [traditionally] did not provide relief beyond the parties to the case.”
On the latter, Thomas argues that as a general matter, traditionally judicial power was constrained in primarily aiming to “render judgments in individual cases” and not striking down law wholesale. Moreover, individuals could not bring suits “vindicating … rights held by the community at large,” nor could one person sue “to vindicate the private rights of someone else.” Thomas sees the law as having been perverted in the second half of the 2oth century, where jurists viewed their position as essentially making laws from the bench, instead of focusing on individual cases and controversies — with the rise of universal injunctions flowing naturally from this new conception of judicial power.
[Universal injunctions] at best “boi[l] down to a policy judgment” about how powers ought to be allocated among our three branches of government…But the people already made that choice when they ratified the Constitution.
In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.
As Conservative Review’s Daniel Horowitz observes, the day the Trump v. Hawaii Supreme Court decision was handed down, more than a dozen states sued the Trump administration over its border security policy, forum-shopping to a favorable district court in the hopes a single judge will help them shut down the president’s policy nationwide.
Given the volume of litigation against the Trump administration, and Thomas’ warning, perhaps the abolition of such universal injunctions may be another unforeseen and unintended consequence of the visceral hatred of President Trump’s opponents, to the benefit of justice.
The consequences of such a ruling would go far beyond this or any one presidency.