News Analysis
President Donald Trump’s agenda is slowed down by a long list of orders issued by federal judges against his policies. These orders include many orders that have a range across the country.
Called a national or universal injunction, they are considered extraordinary as they allow a single judge to block national policies. In recent years, nationwide orders have been increasingly used by judges, prompting a pushback from the presidential administration.
The judge defended the wide range of injunctions, saying it was necessary to avoid harm resulting from enforcement actions.
Critics, meanwhile, argue that even if lawyers are “shop-shopping” for favorable judges who are likely to agree to their policy preferences, the courts are beyond their powers.
The Supreme Court has not yet addressed the issue, but it can have final say as the challenges to Trump’s actions raise the appeal process.
Raising nationwide injunctions
Research by Harvard Law Review shows that the number of universal orders has increased in recent years.
Most come from judges appointed president of the White House from the opposing party.
He said this trend is being driven by “judge shopping.” There, the plaintiffs will strategically file suits before the judge deems them more advantageous to their case.
Presidents George W. Bush and Barack Obama saw six and twelve universal injunctions on the terms, respectively.
That number rose to 64 during Trump’s first term. That 59 came from a judge appointed by the opposition president.
Meanwhile, President Joe Biden saw a slightly higher number than 14 Obamas. All of them came from judges appointed by the opposition president.
Judges defend the national scope of their ruling.
“The need for a national injunction is underscored by the fact that hospitals across the country could lose access to all federal funds if they continue to provide gender-affirming healthcare.”
Supreme Court review
Experts point out that Trump’s order limits birthright citizenship as likely to reach the Supreme Court. Given the recent filings by the Trump administration, it could encourage broader rulings on the national injunction.
“Since the start of the current administration, universal injunctions have reached a prevalence rate,” Harris said. She noted that the number of universal injunctions and temporary restraining orders issued against the current administration has already surpassed the first three years of the Biden administration.
She argued that “only this court intervention can prevent universal injunctions from becoming universally accepted.”
Under Biden, Attorney General Elizabeth Pleger argued that “the government must win any lawsuit to maintain its policy, but plaintiffs can block national law or regulation with a single lower court victory.”
It is unclear how the Supreme Court will handle the matter, but some justices have expressed dissatisfaction with the nationwide injunction and opposed lower court decisions on Trump’s agenda.
Earlier this month, Supreme Court Judge Samuel Alito challenged the lower court’s ruling and said he was unraveled at the justice of his fellow members who allow an order that the federal government is obligated to pay with billions of dollars of foreign aid.
“Do district court judges who are likely to lack jurisdiction have unconfirmed powers that are forced to make the US government pay $2 billion in taxpayer dollars (and likely lose it forever)?” he asked.
“The answer to that question must be an emphasised ‘no’, but the majority of this court clearly believes it is. ”
Justices Neil Gorsuch, Clarence Thomas and Brett Kavanaugh also opposed the decision to deny the Trump administration’s appeal in that case.
In particular, Gorsuch is facing problems with the increasing use of injunctions nationwide. In his 2020 consent opinion, he said there was a problem with “the increasingly common practice of courts ordering relief that transcends their previous cases.”
“Whether framed as an injunction in the range of “national”, “universal”, or “universal”, these orders share the same fundamental flaws. They direct how the defendant must act against someone who is not a party to the case,” he wrote.
While speaking at Northwestern University Law School in 2022, Judge Elena Kagan said, “It’s not right for a judge from a district to stop national policies on that track and stop for the year it takes to go through the normal process.”
Potential reforms
Gorsuch’s statement raised questions about the scope of the judge’s authority. Will their injunction be limited to their previous parties or extended to others?
“The courts aim to resolve disputes between the two parties… they are not like these general free investigative committees… to set things right.”
Heritage Foundation Vice President John Malcolm told the Epoch Times that practices are likely to continue until Congress reboots at practice or judicial meetings, or changes to rules.
Other proposals include eliminating a national injunction or having a panel of judges considering cases where national relief is being requested.
