Facing a divided Congress comprised largely of hostile, intransigent establishmentarians, President Trump’s ability to advance his agenda going into 2020 will likely be limited to where he can exercise executive authority. With the clock ticking on his first term, and finite resources, the president’s best strategic play is to fight where he has the greatest odds of winning, and for which the impact of such wins will be most far-reaching.
So if President Trump wishes to achieve his goals now and in the future, particularly in national security and foreign policy, he must challenge the tool the Resistance most uses to thwart him: Universal injunctions.
The concept of universal injunctions would shock most Americans. Such injunctions permit a single one of the more than 600 federal district judges overseeing the case of a single party to block the executive branch from enforcing or implementing a law, regulation, executive order, or policy for every American across the country over the typically many years the case is litigated.
Stated simply: Universal injunctions give an unelected judge power over the president, shunting aside the considered judgment of the people’s representatives in Congress and the presidency.
Universal Injunctions Are a Constitutional Crisis
In so doing, universal injunctions create a constitutional crisis implicating both the power of the judiciary branch and the separation of powers. They transcend any of the contentious issues over which they have been employed, from the “travel ban” to Deferred Action for Childhood Arrivals (DACA) to allowing transgender people to serve in the military. Their usage in cases affecting national security and foreign policy could endanger Americans’ life and limb by supplanting a judge’s wisdom for that of the president, in an area in which a judge lacks expertise and presidents are supposed to enjoy wide latitude.
Universal injunctions were not always a fact of political life. As former attorney general Jeff Sessions argued to the Eighth Circuit Judicial Conference, nationwide injunctions were never employed for the first 175 years of our republic. But under the Trump presidency, lawfare by universal injunction has been a Resistance trump card. Such injunctions were used 22 times within the president’s first two years in office. While President Trump’s predecessors were similarly stymied on select occasions, they were not nearly challenged at such a rapid rate, or on such frequently ridiculous grounds.
In his speech, Sessions challenged universal injunctions primarily because of separation of powers and the rule of law, executive authority and representative government, and class certification. Sessions argued that “Plaintiffs against the government only need to win once to stop a national law or policy—whereas the government needs to run the table to carry out its policies,” which of course could take years, leaving the executive and legislative branches twisting in the wind, and perhaps outlasting those who were originally party to the case.
Such arguments were formalized and expanded in September 2018, when the Department of Justice (DOJ) under Sessions issued guidance for DOJ attorneys litigating cases involving universal injunctions, laying out the legal grounds for challenging them and expressing the DOJ’s opposition to their usage.
Former House Judiciary Committee Chairman Bob Goodlatte also introduced the Injunctive Authority Clarification Act of 2018. The bill would “prohibit the issuance of national injunctions” by barring any court from issuing an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.’’ The legislation languished.
Both Sessions and Goodlatte invoked Justice Clarence Thomas in their arguments against universal injunctions. In Trump v. Hawaii, the July 2018 decision validating the president’s travel ban, Thomas opened the door to a Supreme Court challenge of their legitimacy.
What Does the Supreme Court Say?
Thomas expressed that he was “skeptical that district courts have the authority to enter universal injunctions…they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts.” After chronicling the rise of universal injunctions and questioning their legality, Thomas concluded that they:
at best ‘boil 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…universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so. The Trump administration ought to oblige the Court.
Many people on the left will cry “pen and phone!” But Trump’s usage of such power has accorded to the letter and spirit of the law to a far greater extent than that of his predecessor. The shenanigans of Resistance federal judges simply strain credulity. The shoddy reasoning that underscores many of their judgments, and the incomparable standard to which they hold President Trump, betrays an inability to rule against him on the merits.
When Trump simply sought to use his executive authority to rescind a prior use of executive authority in the constitutionally dubious Deferred Action for Childhood Arrivals (DACA) program, he was blocked by a universal injunction. The ruling was upheld by the infamously leftist Ninth Circuit, in part on the asinine grounds that, in effect, it disagreed with the administration’s reasoning for rescinding the policy. Yes, they prevented Trump from reducing his own power.
In the case of the travel ban, one could point to the plain, broad language of the relevant immigration statute to see where Trump derived his power to act. Given the primary national security rationale, where again judges have no particular expertise or power, commanders-in-chief are to be afforded substantial deference. Similarly unreasonable reasoning prevailed in a San Francisco-based District Court with respect to President Trump’s order preventing aliens entering the U.S. illegally from obtaining asylum.
Even if Congress magically reasserted itself, mitigating the need for the president to act in certain areas, and even as Trump works to reshape the ideological makeup of the courts, such changes would still be insufficient in the face of the practice of universal injunctions. So long as universal injunctions persist, plaintiffs—many of whom would normally lack standing—will forever be able to forum shop and impose their policy preferences on the entire country, so long as they find a willing judge.
The Trump administration should challenge the legitimacy of universal injunctions up to the Supreme Court, and win. Perhaps the opportunity will present itself in the ongoing border wall fight, but if not in that instance, it is clear the president will have his pick on any number of cases over which to litigate. While there is no guarantee the administration will prevail, in particular given the chief justice’s reported desire to maintain the court’s independence—apparently by ruling narrowly, and refusing to upset long-standing policies like challenging abusive lower courts—this fight is worth it.
Such litigation may take time, but outside of his appointment power, the president is checked by Congress. Executive action will be his best means to effectuate change. Ending universal injunctions is critical for the president to be able to wield such authority. And as the first two years of the Trump presidency showed, his policy prerogatives were even checked when he had a Republican Congress. A clean Republican sweep in 2020 is still no guarantee that the president will be able to achieve his vision if the judicial status quo remains in force.
Although future Democratic presidents would benefit from such a ruling as well, that is besides the point. Universal injunctions should be struck down on the merits. President Trump ought to seize the opening the resistance has provided and overturn this Constitution-imperiling practice once and for all.