Remember when Sen. Harry Reid and his party eliminated the filibuster on nominees and how Democrats later came to regret that? Something very similar is eventually going to happen with nationwide injunctions and it looks like Vox’s Ian Millhiser just picked up on it.
Millhiser has a piece up today titled “Democrats need to listen to Neil Gorsuch’s surprisingly good idea.” The good idea he’s referring to was a concurring opinion Gorsuch wrote when the Court put an end to a nationwide injunction that had prevented the Trump administration from moving forward with a new “public charge” rule. What Gorsuch said, essentially, is that individual judges should not be able to issue nationwide injunctions because it gives them too much power to halt government policy.
Injunctions, Gorsuch writes, are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” Thus, the appropriate remedy when a court issues an injunction against a particular policy is to prevent that policy from being enforced against the plaintiffs — and that’s it…
As Gorsuch notes, “There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.” In theory, any one of those judges could issue a nationwide injunction blocking any government policy…
As Gorsuch writes, “The stakes are asymmetric.” In a world with nationwide injunctions, “The government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.”
Nationwide injunctions mean that if the government faces “a single loss,” then “the policy goes on ice.”
As Millhiser mentions in passing, criticisms like this have been made before. Last May, Attorney General Barr gave a speech to the American Law Institute in which he said nearly the same thing.
Since President Trump took office, federal district courts have issued 37 nationwide injunctions against the Executive Branch. That’s more than one a month. By comparison, during President Obama’s first two years, district courts issued two nationwide injunctions against the Executive Branch, both of which were vacated by the Ninth Circuit. And according to the Department’s best estimates, courts issued only 27 nationwide injunctions in all of the 20th century…
Nationwide injunctions not only allow district courts to wield unprecedented power, they also allow district courts to wield it asymmetrically. When a court denies a nationwide injunction, the decision does not affect other cases. But when a court grants a nationwide injunction, it renders all other litigation on the issue largely irrelevant. Think about what that means for the Government. When Congress passes a statute or the President implements a policy that is challenged in multiple courts, the Government has to run the table—we must win every case. The challengers, however, must find only one district judge—out of an available 600—willing to enter a nationwide injunction. One judge can, in effect, cancel the policy with the stroke of the pen.
No official in the United States government can exercise that kind of nationwide power, with the sole exception of the President. And the Constitution subjects him to nationwide election, among other constitutional checks, as a prerequisite to wielding that power. Even the Chief Justice of the United States must convince at least four of his colleagues to bind the Federal Government nationwide.
When Barr said all of this last year, Vox apparently didn’t consider it worth writing about. Maybe some progressive sites did discuss it at the time but for the most part the left hasn’t been remarkably supportive of nationwide injunctions against the Trump administration’s various executive orders. Today, Millhiser admits there’s a pretty obvious reason this practice hasn’t attracted much scrutiny from the left or the media:
It’s working in Democrats’ favor — for now. But in the long term, nationwide injunctions are likely to be a much bigger thorn in the side of Democratic presidents than they are for Republican presidents. The Supreme Court, after all, is controlled by Republicans. So liberal nationwide injunctions tend to be wiped away quickly, while conservative injunctions may last forever.
It’s also likely that Republican litigants will have a much easier time finding judges willing to block Democratic policies. Trump, after all, has filled the federal court with deeply ideological judges. And a party seeking a nationwide injunction may need to find only a single judge willing to hand down such an order.
Millhiser concludes by saying, “if Democrats wait until after they’re back in power, any chance of forming an alliance with Republicans to prevent judicial overreach is likely to evaporate overnight.” In other words, the judicial overreach Dems have been employing for the past three years needs to end before a Democrat is elected. Otherwise, Republicans will use the same tactic against us!
Wouldn’t that be a terrible shame.
I suspect this is something a lot of progressives are quietly worried about. The problem with Millhiser’s concern is that it may have arrived a little too soon. They may need to keep this up for a while longer if Trump is reelected. So my guess is they’ll continue to worry about this quietly.
But you can bet your bottom dollar that next year or in five years, if and only if a Democrat is elected president, we’ll suddenly have a surfeit of think-pieces like this one explaining how nationwide injunctions are an affront to the constitutional order. Until then, the left is going to keep celebrating every bit of judicial overreach they can get.