Call it the power of one. Individual federal judges across the country have been issuing nationwide injunctions against the Trump administration in record numbers, blocking a range of executive policies from being enforced.
Now the Trump administration is fighting back, actively looking for a case to take to the Supreme Court in an effort to reassert the authority of the president and limit that of the judiciary.
“These nationwide injunctions have frustrated presidential policy for most of the President’s term with no clear end in sight,” Attorney General William Barr said in a speech Tuesday. “One judge can, in effect, cancel the policy with the stroke of the pen.”
Barr and Vice President Pence have been leading the very public effort to highlight what they say is a federal court system out of control. The administration makes the point nationwide injunctions have occurred more during this presidency than all others combined.
“We believe that needs to change,” Pence said on “Fox News @ Night” last week. “We believe that’s really a distortion of the separation of powers and the balance of powers in our constitution. And so we’re going to be looking for a case to take the issue of national injunctions all the way to the Supreme Court.”
A Fox News analysis largely supports the administration claims.
In President Trump’s first year alone, federal judges issued 20 nationwide injunctions — as many as president Obama’s eight years in office. Those included judges appointed by Republican as well as Democratic presidents.
The current number is more than three dozen — on a range of hot-button issues — especially immigration:
- Rescinding grant money to sanctuary cities
- Ending the socalled “dreamers” program for young undocumented aliens
- Travel ban on certain Muslim majority countries — a policy ultimately upheld by the Supreme Court last year.
- Restrictions on transgender people joining the military
- A planned citizenship question on the 2020 census
- Several abortion and reproductive health policies, including administration efforts to suspend federal funding for family planning clinics that refer patients to abortion providers
Nationwide or universal injunctions have the effect of binding the government from implementing laws or policies — maintaining the status quo at least until the issue is fully litigated. Most of the nearly 700 district court or trial judges confine their orders to the particular parties bringing suit — and only in the region under the judge’s control.
Some legal advocates say the shift is necessary: when the harm is nationwide — so too must the legal relief:
“The suggestion that it’s only very liberal judges putting a hold on president trump’s policies is simply not true,” said Elizabeth Wydra, president of the Constitutional Accountability Center. “This is a matter of justice, it’s not a matter of politics when it comes to the judicial branch.”
The ACLU is among the most active of advocacy groups requesting judges issue nationwide injunctions, and it has been mostly successful.
Last August a federal judge in San Diego issued an injunction requiring reunification of deported immigrant parents with their children. The judge refused an administration request to delay court-ordered deadlines sought by the Department of Homeland Security.
“The judge is refusing to let the government off the hook for the mess it made,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.
But the White House is pushing back, looking for the right case to present to the Supreme Court. But the issue likely would not be resolved in a presidential election year. But most legal experts say it will be ultimately resolved by the justices.
“I suspect the Supreme Court is going to weigh in at some point on this just because it nationwide injunction being increasingly prevalent in recent years,” said Thomas Dupree, a former Bush principal deputy assistant attorney general. “And there’s a lot of unsettled law in this area about how far as a single district court’s power projects. Can a single judge apply his or her ruling across the nation and different courts give different answers to that.”
The administration thinks it ultimately has a winning hand since Trump’s two justices — Neil Gorsuch and Brett Kavanaugh — now create solid conservative majority.
And Justice Clarence Thomas in particular is eager to address it.
“Universal injunctions are legally and historically dubious,” he wrote last June in the Trump travel ban case. “If federal courts continue to issue them, this Court is duty-bound to adjudicate their authority to do so.”