BY TESSA BERENSON
Over the weekend, a federal judge in Oregon temporarily blocked a Trump administration rule requiring immigrants to prove they can pay for medical care in order to get visas. White House Press Secretary Stephanie Grisham shot back with a statement: “It is wrong and unfair for a single district court judge to thwart the policies that the President determined would best protect the United States healthcare system,” she said.
But this fight is about more than just one judge and one policy. It is just the latest example of an increasingly high-stakes battleground in the war between the Trump administration and the courts: nationwide injunctions.
Members of the Trump administration have made it a mission at the highest levels of the White House and the Justice Department to put an end to nationwide injunctions. People in top positions in the government are using their platforms to publicly call for an end to the practice, and inside the Justice Department, there is a concerted effort to leverage litigation about Trump policies ranging from the transgender military ban to the asylum rule to get the issue before the Supreme Court.
“This is a priority across the board,” a senior Justice Department official tells TIME.
The potential ramifications of this argument go beyond any individual Trump administration policy. It’s another attempt to renegotiate of the balance of power between Trump’s White House and the other branches of government that check the executive, with a president at the top who has both harshly criticized the judiciary as he has stocked it with conservative judges. The results of the Trump administration’s efforts to end nationwide injunctions will tilt the scales of power either to the courts, for whom nationwide injunctions can be a last line of defense against a controversial White House, or to the executive, whose policies are being stymied across the country.
Nationwide injunctions allow judges to issue relief to parties beyond the plaintiffs in a case. Think, for example, of environmental laws— it wouldn’t make much sense for a judge to decide in favor of a single plaintiff who the judge finds is harmed by a law that fails to prevent lead in drinking water. With a nationwide injunction, the judge could grant relief to everyone harmed by this law, not just the individuals named in the case. This power is “essential to keep the government in line,” argues Amanda Frost, professor at American University’s Washington College of Law. “There will be times when the government acts at the 11th hour to affect millions of people, most of whom cannot get to court. And if the government knew the only relief would be to the handful of plaintiffs that actually managed to get to court, then the government would be much freer to violate all of our rights.”
But the Trump administration counters that judges are leaning on nationwide injunctions more than ever before to “inject themselves directly into the political process,” says the senior Justice Department official, with an eye towards policy outcomes more than legal ones.
Some data support the administration’s complaints. There have been 42 nationwide injunctions issued under Trump so far, according to the Justice Department. Compare that to 20 issued in the entirety of President Barack Obama’s eight years in office, according to Attorney General William Barr, or an average of just 1.5 per year against residents Ronald Reagan, Bill Clinton and George W. Bush, according to Assistant Attorney General Beth Williams. Members of the Trump Administration say they feel hamstrung by the increasingly muscular use of this power by federal judges.
“Nationwide injunctions undermine our entire immigration system and other systems,” Trump said in remarks before the International Association of Chiefs of Police in Chicago on Oct. 28. “It’s not the job of judges to impose their own political views.”
But advocates of nationwide injunctions under Trump argue that the increased numbers may not be because judges are getting trigger happy; that confuses cause and effect, they say, and the increasing use is instead because Trump is putting forth more extreme policies than previous presidents. “It may not be because courts are now going out of bounds and doing these things that are wild and crazy,” says Frost. “It may partly be in response to unilateral executive orders changing enormous aspects of U.S. policy.” Frost notes that President Obama’s
Deferred Action for Childhood Arrivals policy belongs in this category too, which was temporarily blocked by a judge in Texas in 2015. “You could say, well, the court didn’t need to do that, that court was out of control,” Frost says. “Or maybe you could take a step back and say our executive branch is now— particularly in the realm of immigration— issuing sweeping executive orders changing the status and situation for millions of people in a way that lends itself to the remedy of nationwide injunctions.”
Judges have issued nationwide injunctions against numerous Trump policies, including the travel ban, the asylum rule and the transgender military ban. One judge in California, Jon Tigar, issued two nationwide injunctions on asylum rules himself, leading the Wall Street Journal’s editorial board to declare in a September headline, “President Tigar Strikes Again.” District Judge Ketanji Brown Jackson in D.C. explicitly pushed back against the Trump administration’s efforts on nationwide injunctions in a September decision blocking a Trump administration policy to fast-track deportations. “It reeks of bad faith, demonstrates contempt for the authority that the Constitution’s Framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled,” Jackson wrote.
Which gets to another fraught dynamic in the use of nationwide injunctions: venue shopping. The Trump administration has run into trouble in courts in California and Washington, D.C., two liberal outposts that voted for Hillary Clinton in 2016. Obama’s policies, by contrast, were often blocked by courts in Texas, a Republican state. No judge would ever admit to being political in his or her decision, but there’s a strategy for lawyers in where they decide to bring cases. The senior Justice Department official describes the difficulty for the administration this way: when they enact a policy, those challenging the policy can take it to 500 judges, looking for sympathetic venues, and they only need to convince one to get it stopped in its tracks. The administration, however, needs to win all 500 for the policy to go into effect.
There have been a few small wins for the administration on this issue so far. The 9th Circuit has limited nationwide injunctions in some decisions, including in a case about a sanctuary city and another in one about exemptions from employer-covered birth control under the Affordable Care Act.
But there hasn’t been a decisive ruling on nationwide injunctions as a practice, and neither Trump nor Barr has the power to simply declare an end to them. There are three primary options for the administration to curtail this power of the third branch of government. One would be to pass legislation through Congress. Congressman Mark Meadows, a Republican from North Carolina, and Senator Tom Cotton, a Republican from Arkansas, introduced a bill in September to end nationwide injunctions and “restore the appropriate role of district court judges by prohibiting them from issuing nationwide injunctions broader than the parties to the case or the geographic boundaries of the federal district in which the judge presides,” according to a press release about the bill. But any effort to curb judges’ power under Trump would be unlikely to pass, especially as Congress remains mired in an impeachment fight.
Another avenue is for the Justice Department to raise the issue in court cases in hopes it will get elevated to the Supreme Court to make a final decision about nationwide injunctions, a strategy Vice President Mike Pence touted this spring. “In the days ahead, our administration will seek opportunities to put this very question before the Supreme Court to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land,” Pence said in a speech to the Federalist Society in May. At least one justice has already signaled openness to reining in the power: conservative Justice Clarence Thomas wrote in a concurring opinion in 2018 that nationwide injunctions “are legally and historically dubious.”
There’s a catch-22 in this court-based approach for the administration. In any case in which an administration policy has been halted by a nationwide injunction, if the court were to rule in favor of the underlying policy, they wouldn’t get to answer the question of the injunction. In other words, to get a win on nationwide injunctions, the administration would need to lose the case on the merits.
Still, the Justice Department is pressing forward trying to find the right cases to present the issue, though for now there isn’t currently a case pending before the Supreme Court with a clean shot at curbing nationwide injunctions.
The final leverage the administration has on this issue is publicity. Barr has only published one op-ed since he was confirmed to be attorney general, and it was a call in the Wall Street Journal to curb nationwide injunctions, which he calls “a practice that embitters the political life of the nation, flouts constitutional principles, and stultifies sound judicial administration, all at the cost of public confidence in our institutions.” Solicitor General Noel Francisco, the government’s lawyer in charge of arguing cases before the Supreme Court, joked at a speech in 2018 that “the lower courts have issued decisions on a number of significant issues that could come before the [Supreme] Court, including… my favorite topic, the propriety of nationwide injunctions.”
And the president continues to weigh in himself, telling reporters on September 9 that one judge issuing a nationwide injunction is “very unfair. “I don’t think it should be allowed,” Trump said.
Now the rest of his administration is figuring out how to make that a reality.
