Commentary: Nationwide injunctions are a problem. Ending them isn't the answer

“Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country!”

So began a recent post by President Donald Trump on social media. He seeks to end the practice that allows a judge in a single district to issue an order that blocks his policies from taking effect nationwide. His proposal is unworkable in practice, but other reforms might be appropriate to address the concerns he shares with critics from both sides of the political aisle.

Most recently, nationwide injunctions have been used to block more than a dozen of Trump’s executive orders, addressing wide-ranging issues including the definition of birthright citizenship, the firing of federal employees and a ban on transgender service members in the military. Such orders can slow down a presidential administration from rapid, drastic change, but that, of course, is the very point of checks and balances.

Trump is not the first chief executive to see his plans thwarted by a nationwide injunction, but we have seen a significant uptick in the past 20 years, perhaps as our country has become more politically polarized and more segregated into red and blue states. Indeed, hot-button political issues usually draw their use. Nationwide injunctions blocked President Barack Obama’s repeal of the “Don’t Ask, Don’t Tell” policy in the military and a rule requiring employers to provide insurance coverage for gender transitions and abortions. They also halted President Joe Biden’s plans to impose vaccine mandates and provide student loan relief, among other initiatives.

An injunction is a court order directing a party to take certain action or to refrain from doing so. The classic example of an injunction is a command to stop a party from using a wrecking ball to demolish a building during a dispute over property rights. Most often, parties to litigation seek injunctions at the outset to preserve the status quo while a lawsuit plays out, likely over several months or even years. A court will grant an injunction when the plaintiff can show a substantial likelihood of success on the merits and a risk of irreparable harm, considering the effects on each party and the public interest.

There are generally three types of injunctions. The first, a temporary restraining order is, by design, nimble, quick and short-lasting. A temporary restraining order (TRO) may be granted even without hearing from the opposing party when swift action is needed to prevent irreparable harm, such as the imminent deportation of an immigrant whose status to remain in the country is in dispute. But a TRO may last only 14 days. A court would then hold a full hearing with both parties and decide whether to issue the second type of injunction, a preliminary injunction, while the litigation ensues. At the conclusion of the case, the court may enter the third type, a permanent injunction, if satisfied that the law so requires.

Nationwide or “universal” injunctions apply, as their names suggest, to parties throughout the entire US. Critics oppose them, saying they allow a district court judge in a case involving only one set of litigants to make decisions that apply to everyone in the country.

But ending nationwide injunctions would create more problems than it solves. Without them, a federal judge who finds a substantial likelihood that an executive order violates the law could block its implementation only in that district, leading to a patchwork of rulings across the country. That would make policies impossible to administer. Would birthright citizenship be available to babies born in one judicial district but not the others? Would transgender service members be permitted to serve in the military if assigned to a base in one part of the country but not another? And what happens when they are transferred to a new base?

A better remedy than ending nationwide injunctions is to change how they work. One modification has already occurred. The Judicial Conference of the United States, a committee of judges who decide policy for federal courts, last year announced a change to limit the practice of forum shopping in certain cases. This tactic occurs when litigants file their case with a judge who is likely to be friendly to their cause. Until that change, it was possible to find a small division of a larger judicial district with a single judge, to whom assignment of a case was guaranteed.

For example, during the Biden administration, litigants incorporated an entity in Amarillo, Texas, to challenge the Food and Drug Administration’s approval of mifepristone, a drug used in medication abortions. By bringing the case in that district, the plaintiffs were certain to draw Judge Matthew Kacsmaryk, who had previously worked as a lawyer for a conservative religious rights organization and had written about his opposition to abortion. Unsurprisingly, Kacsmaryk entered a nationwide injunction banning the drug, inviting howls of protest from critics.

Under the new policy, any case that has the potential to result in a statewide or nationwide injunction must be randomly assigned to a judge drawn from the entire district. The change will help promote fairness and public confidence in court decisions.

Commentators and scholars have suggested other changes. Steve Vladeck, a professor at Georgetown University Law Center, has proposed limiting the availability of universal injunctions to only situations where nationwide uniformity is essential, such as cases involving border enforcement. Other proposals have been brought forward by lawmakers. One bill would allow plaintiffs to file any case seeking a nationwide injunction in federal court in Washington, the district where executive orders are issued, to limit efforts to shop for red or blue districts. Another plan would require three-judge panels to decide cases involving nationwide injunctions to limit the influence and appearance of political bias of a single judge. Instead of ending nationwide injunctions, an unworkable idea, these changes might address the real problems that concern critics.

But for Trump, nationwide injunctions seem to be a convenient scapegoat for undermining public confidence in the judiciary. What might really be at issue is the right of the courts to check his authority at all, as envisioned by the framers of our Constitution when they created our government’s constitutional separation of powers structure. According to Stephen Miller, Trump’s deputy chief of staff, “Our objective, one way or another, is to make clear that the district courts of this country do not have the authority to direct the functions of the executive branch. Period.”

That vision is far more radical than any of the judges criticized by Trump.

____

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Barbara McQuade is a professor at the University of Michigan Law school, a former US attorney and author of "Attack from Within: How Disinformation Is Sabotaging America."