“Something is very wrong with this picture,” write law professors Nicholas Bagley and Samuel Bray at The Atlantic, and they’re correct … if a little late. As Republican attorneys general prepare to argue that repealing the individual mandate stripped ObamaCare of its constitutionality, Bagley and Bray argue that a single federal judge in one district should not be able to rule on policy that affects the entire nation. And they both point the finger at Democrats, who delighted in using that process to stymie Donald Trump at the beginning of his term:
Democrats were ecstatic when a judge in Honolulu barred enforcement of the Trump administration’s travel ban. They were thrilled when a judge in Chicago halted a policy to rescind grant funding to sanctuary cities. In both cases, the judges extended their ruling beyond the litigants to the whole country, issuing so-called national injunctions.
For opponents of Donald Trump’s administration, this legal maneuver has seemed like a godsend. Now it may come back to haunt them, as a single federal judge in Texas considers putting the Affordable Care Act on ice—not only in Texas, but anywhere in the country.
Can one judge really impose his ruling from one coast to the other?
Yes, in fact, federal judges can do that, and lately do so often enough to make this an entirely rhetorical question. In days gone by, the authority of a district court judge was limited to the district in which the court was established, and the writ of an appellate court only ran in their own circuit. For some reason that changed, and it didn’t start in the Trump era. As the two authors remind readers, Republicans won a few of these battles against Barack Obama, stopping DAPA through a district-court injunction and on overtime-pay regulations.
Bagley and Bray note that this expansion of judicial authority has produced one effect from the incentives it sets up — forum-shopping. The repeated use by Trump’s opponents of Hawaii’s district courts has transformed them into a joke among conservatives, with memes suggesting nothing is real until a judge in Hawaii blesses it, but Texas turned out to be pretty sweet ground for Obama’s opponents, too.
So what’s the solution? Bagley and Bray want district courts to force cases like this into class-action lawsuits, and for Congress to pass the the Injunctive Authority Clarification Act of 2018, which would forbid enforcement of injunctions against people who were not party to the original lawsuit. That might create other problems, however; how does the federal government pursue DACA or DAPA in some states but not others? How can ObamaCare be enforced in supporting states while enjoined in others?
National injunctions aren’t the issue as much as they are the symptom. Bagley and Bray note that this started becoming an issue 60 years ago, which isn’t a coincidence. That wouldn’t have been long after Supreme Court decisions like Wickard v Filburn greatly expanded the authority and jurisdiction of the federal government by reinventing the meaning of the Interstate Commerce Clause. The reason federal judges can gum up the works with national injunctions is because there’s a lot more works to gum up. That’s also the reason that judicial appointments and the confirmation process have grown so poisonous in the same period, especially of late.
Rather than have the Supreme Court rule against national injunctions, as the authors demand, maybe it should revisit the actual problem that created the need for them.
By the way, Bagley and Bray write that the lawsuit against ObamaCare stands a good chance of succeeding. Perhaps, but any injunction on the basis of its constitutionality post-tax will get stayed itself until the Supreme Court takes it up. That might be a good time to rethink Wickard rather than national injunctions.