The then attorney general, Jeff Sessions, issued a broadly worded legal memorandum in September 2018 that described nationwide injunctions as "judicial activism" by go beyond a judge's authority by granting relief to individuals and groups beyond the plaintiffs in the individual case. The issue was featured in a keynote session at the conservative Federalist Society's annual convention in Washington just two months later.
Two of the Supreme Court's conservative justices elevated the debate in a pointed attack on nationwide injunctions earlier this year [Jan. 31]. Justice Neil Gorsuch's five-page critique came in an opinion concurring in the Court's decision to stay an injunction issued by a federal court in New York City to block the administration's new rule to bar would-be immigrants likely to use food stamps or Medicaid if admitted to the United States.
Gorsuch went beyond the issue of the so-called "public charge rule" by attacking what he called "the rise" in universal injunctions as contributing to "gamesmanship and chaos" in federal litigation. "Universal injunctions have little basis in traditional equitable practice," Gorsuch wrote.
Justice Clarence Thomas, who joined Gorsuch's opinion, had similarly criticized nationwide injunctions in a concurring opinion in the Court's decision two years earlier to uphold Trump's so-called Muslim travel ban.. Like Gorsuch in the later opinion, Thomas argued that so-called universal injunctions were a recent development, contrary to historical practice and constitutional limits on judicial power.
"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," Thomas wrote in the June 2018 decision.
Several liberal legal academics sharply disagree that nationwide injunctions are a recent or extraconstitutional development. Mila Sohini, a law professor at the University of San Diego, argues in a law review article that universal injunctions date at least from the early 20th century and notes that the Supreme Court has upheld comparable injunctions without reservation in cases challenging state law. ""If Article III allows such injunctions as to state laws,," Sohini adds, referring to the Constitution's article on the federal judiciary, " it also allows such injunctions as to federal laws."
Amanda Frost, a law professor at American University in Washington, argues in another law review article that universal injunctions are often the only way to provide complete relief to plaintiffs with a well-grounded legal case. "[S]ometimes," Frost adds, "anything short of a nationwide injunction would be impossible to administer."
The Trump administration fared badly in lower courts on the Muslim travel ban and again in litigation over the public charge rule. A federal district court judge in California had issued a nationwide injunction to block the Muslim travel ban. A federal district court judge in Manhattan issued a nationwide injunction in October 2019 to block the administration's recently tightened "public charge rule."
In all, the Trump administration had been on the losing side in 40 nationwide injunctions issued through September 2019, according to a report signed by Missouri's Roy Blunt as chair of the Senate Republican Policy Committee. That report counted no such single-court nationwide injunctions before 1963 and only 20 against Obama administration policies during his eight years in office.
Significantly, Republican officials and conservative experts had been muted or silent when federal judges issued similarly broad injunctions to thwart legal initiatives with the Democrat Obama in the White House. Thomas wrote not a word, for example, when the Court acted in June 2016 to uphold a lower court decision blocking the Obama immigration policy known as DAPA — "deferred action for parents of Americans."
By speaking out now — with the shoe on the other foot, so to speak — Thomas and legal conservatives open themselves to charges of opportunism and hypocrisy in their criticisms. Liberal justices did not answer Thomas's critique of nationwide injunctions in the earlier case when they dissented from the Court's decision on the merits.
The liberal bloc — Ginsburg, Breyer, Sotomayor, and Kagan — similarly did not respond in the recent case to Gorsuch's critique of the practice with Thomas but none of the other conservatives in tow. Sotomayor did respond, however, in a dissenting opinion when the same five-vote conservative majority voted on Feb. 21 to stay a narrow injunction against the public charge rule issued by a federal judge in Chicago limited to the state of Illinois.
Sotomayor criticized the Trump administration for what she called the "now familiar" practice of asking the Supreme Court to stay lower court decisions even with appeals pending. In a seven-page opinion written only for herself, Sotomayor criticized the Court itself as well for granting such requests: "It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it."
In short, the attack on nationwide injunctions is little more than a politically motivated argument from an administration that designs policy initiatives so poorly as to be on the losing side often in lower courts that the president cannot control. The Court's willingness to oblige the Trump administration in many of those cases unfittingly diminishes its "original meaning" role as an independent check on the powers of the executive branch.
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