Federal District Judges Running The Executive Branch: Even Justice Jackson Draws A Line

The first nine months of the President Trump’s second term have seen repeated instances of a Federal District Court judge temporarily enjoining some action of the administration, only to have the Supreme Court stay the injunction while the litigation proceeds.  Examples of this pattern of events have occurred in cases involving such things as funding rescissions, staff lay-offs, and deportation procedures.

A recurring feature of this pattern has been dissents from the three liberal Supreme Court justices — Kagan, Sotomayor and Jackson — who would have left the temporary injunctions in place during the pendency of the litigation.  Justice Jackson, in addition to joining the other two liberal justices, has also issued several individual dissents strongly criticizing her conservative colleagues for vacating temporary injunctions from District Courts.  

The question of whether the administration gets enjoined while litigation proceeds, versus an injunction getting issued only at the conclusion of full litigation, is very consequential.  Full litigation of any one of these cases through a District Court, Court of Appeals, and Supreme Court, could take four years or more — in other words, the entire presidential term.  If a temporary injunction gets put in place by a District Court judge when the case starts, and then litigation proceeds for four years with that injunction in place, that would mean that the Trump administration never gets to implement its policy at all during its term in office  — even if the Supreme Court ultimately rules that Trump had the authority to implement the policy all along.  With enough of these temporary injunctions, the entire Trump administration could be tied up in knots, and prevented from doing much or even most what it was elected to do.

The past week has seen two more instances of the pattern play out.  But notably, in one of the cases that reached the Supreme Court on Friday November 7, the District Court injunction proved too much even for Justice Jackson.  In that case Justice Jackson herself issued an administrative stay of the District Court’s temporary injunction.