Among the most frequently asked questions over the last few weeks concern the abuse of injunction power by federal judges in district courts. The top question: How can one judge in a defined district issue orders that bind the executive branch across the country? That's closely followed by: Is this happening to Trump more than other presidents?

More than one answer applies to the first question, but the answer to the second is an emphatic yes. In an analysis yesterday at The Free Press, Yale con-law professor Jed Rubenfeld counts up the TROs and sees an explosion of abuse in the last two months. Rubenfeld includes a caveat to this contrast:

But is it true that nationwide injunctions have recently proliferated and that judges are more prone to issue them against Trump than other presidents?

Absolutely.

During President Obama’s first four years, according to a Harvard Law Review count, only 12 nationwide injunctions were handed down; during President Biden’s, 14. But in Trump’s first administration, there were 64, and in Trump 2.0, as of March 27, there were 17, with more on their way.

Of course these numbers by themselves don’t prove anything. It could be that partisan judges are blocking a democratically elected president’s agenda. Or Trump could be taking more unconstitutional actions than his predecessors. Or both.

That certainly could be the case in theory, but the injunctions have largely blocked legitimate executive authority from legitimate exercise. Even with this rational caveat in mind, though, it doesn't explain how district court judges can wield the power to act on a national basis, especially when it relates to executive-branch authority. All this does is encourage judge-shopping, or perhaps more accurately, venue-shopping, in a manner that puts an elected president on a lower basis than 677 appointed judges in 94 districts (as of 2021) when it comes to running a supposedly co-equal branch.

Rubenfeld also talks about potential solutions, to which we'll return in a moment.  The abuse of power has grown so significant that Congress may finally intercede to formally restrict district court jurisdiction to their districts. In fact, the House passed a bill yesterday to do just that, called the No Rogue Rulings Act:

The House of Representatives passed a bill Wednesday to limit federal district judges' ability to affect Trump administration policies on a national scale.

The No Rogue Rulings Act led by Rep. Darrell Issa, R-Calif., passed the House and limits district courts' power to issue U.S.-wide injunctions, instead forcing them to focus their scope on the parties directly affected in most cases. ...

A group of conservatives had pushed to impeach specific judges who have blocked Trump's agenda, but House GOP leaders quickly quashed the effort in favor of what they see as a more effective route to take on the issue.

Despite its success in the House, however, the legislation does face uncertain odds in the Senate, where it needs at least several Democrats to hit the chamber's 60-vote threshold.

First off, Democrat cooperation will not likely come to pass – not without a concerted effort to pressure Chuck Schumer's caucus into rational behavior. The House vote on Issa's No Rogue Rulings Act was 219/213, with all 219 ayes coming from the GOP. Congress has every right to enforce such limits on the judiciary, and the abuse of venue-shopping will only increase in the next Democratic administration if they balk. Republicans had already begun to test those waters during the Biden administration, and it will be Katy-bar-the-door if Democrats refuse to rein in rogue federal district jurists by enforcing district jurisdiction. We will then rush headlong away from democracy and into Star Chamber rule, only with 677 one-person star chambers running the government rather than the person elected by the states.

Schumer's not exactly known for his long-range thinking or strategy. That's why we need to keep the pressure by continuing to highlight not just the rogue rulings but also the flabby response from the Supreme Court to these abuses of jurisdiction and authority. The Protection Racket Media barely even mentioned this legislative effort to rein in federal judges at the district level despite their 24/7 coverage of the judicial interventions taking place. That silence keeps the pressure off of Schumer – and more importantly, red-state Senate Democrats running for re-election next year.

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Rubenfeld explains (as I have) that Congress has the authority to create statutory limits on federal district courts, and that the Supreme Court has the authority to create its own rules forbidding or limiting nationwide injunctions by district courts. The Supreme Court can do that in an explicit rule or by issuing a controlling opinion that forbids such actions. Thus far, they have only been content to nibble at the latter option rather than act to end what Rubenfeld correctly argues is a corrosive impulse that subverts democracy:

Nationwide injunctions not only create the appearance of a partisan judiciary, which is bad enough. They harness the reality of our partisan judiciary, allowing “Democratic judges” to stop Republican measures even as “Republican judges” stop Democratic measures.

Making matters still worse is the asymmetry between losing and winning a nationwide injunction. The administration could in theory win 10 times, but as long as one plaintiff wins before one of the hundreds of district judges sitting anywhere in the country, the executive order is universally blocked and the president’s agenda comes to a halt.

So if Mary sues in Massachusetts to stop a Trump executive order and loses, that doesn’t stop John from suing in Hawaii to stop the same order. The result is forum shopping and a concomitant power for a single district judge to make policy for the entire country.

If John Roberts & Co. won't act to stop this, then Congress must. Let's keep up the pressure on both the Supreme Court and the Senate to address this abuse of power and unconstitutional arrogation of authority, and make sure we keep combining our voices until they ring loudly in DC.