A grave threat to democracy was revealed during the first weeks of President Donald Trump’s second term. But it does not emanate from the White House. Judges, acting in coordination with left-wing activist groups, are abusing the judicial power to thwart the will of the people and undermine temperate and deliberate jurisprudence.
The Trump administration petitioned the Supreme Court last week to take action, narrowing the power of district court judges to issue nationwide injunctions. In the past, members of the court outlined problems presented by such far-reaching unilateral action. Accordingly, they should deliver relief to the Trump administration and the entire republic.
The power of courts to enjoin parties from taking action to prevent harm to a litigant is older than the Constitution, stretching back to English common law. This tradition is preserved in the Federal Rules of Civil Procedure, which allow a party to secure a preliminary injunction if he establishes that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”
This is a high bar. It typically means a court’s power to limit a party’s actions is confined to named plaintiffs in the suit. This can make challenges to federal government actions tricky because any national policy, such as a nationwide employer vaccine mandate, could affect almost everyone.
For decades, nationwide injunctions were something district court judges wisely used only lightly, but that changed when Trump became president in 2017. During Trump’s first term, courts issued 64 nationwide injunctions, compared to just six in former President George W. Bush’s eight years in office.
Republicans proved keen to secure nationwide injunctions against former President Joe Biden and the Democrats. District judges saved property owners from a nationwide eviction moratorium, taxpayers from a trillion-dollar student loans bailout, and every worker from the COVID-19 vaccine mandate. But while judges issued just 14 universal injunctions in the first three years of Biden, they issued 15 in just the month of February against this Trump administration. We do not like judging motives by outcomes, but left-wing judges seem readier to abuse their authority than right-wing judges.
Justices Clarence Thomes, Neil Gorsuch, and Brett Kavanaugh have voiced concern over the practice, with Gorsuch writing, “The routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.”
“There are currently more than 1,000 active and senior district court judges sitting across 94 judicial districts. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide,” he continued.
Trump is not seeking to end preliminary injunctions entirely but to limit the power of activist judges chosen by left-wing activist groups precisely because of their clear ideological leanings. The administration wants the scope of injunctions limited to parties involved, and if a state is a proper litigant, only citizens of states that have joined the litigation. This means that if Texas and Florida fight to stop Biden’s vaccine mandate but California does not, only employees in Texas and Florida may be protected from Biden’s needles, and Californians would be out of luck.
THE DEMOCRATIC PARTY’S CHRIS MURPHY PROBLEM
Trump also asked the court to stop district judges from preventing even the formulation of policy. One judge who blocked Trump’s order ending birthright citizenship went so far as to order the administration not even to write legal guidance on how the executive order should be implemented. How can courts evaluate the legality of a policy if a single judge prevents the federal government from even outlining how a policy should be implemented?
If the Supreme Court does not act to limit the power of district judges, Congress should step in. There are many possible legislative fixes, including one from Sen. Mike Lee (R-UT), which would require at least three judges to sign off on an injunction before it could take effect. A Supreme Court ruling limiting judicial power would be preferable, but at least Lee’s solution would reduce the ability of activists to shop around for the forum that suits them best.