What progressive activists could not accomplish at the ballot box in 2016 — specifically, to constrain and thwart the policy agenda of President Trump — they are seeking to achieve in federal court.
The maneuver is straightforward: Find a sympathetic United States District Court judge, say, in California, to hold that President Trump’s executive order or the manner his administration enforces existing law is unconstitutional or otherwise unlawful. Once the judge so decides, the moving party requests that the court issue a nationwide injunction, which bars the U.S. government from enforcing the disfavored law or policy anywhere in the country. The gambit worked because political plaintiffs found accommodating jurists. In these lawsuits, however, the loser is not the government; it is America’s constitutional order.
Individual federal judges have issued nationwide injunctions against the Trump administration at least 30 times — an unprecedented number. On immigration matters alone, where the president enjoys robust statutory and inherent authority, judges have blocked the government’s ability to vigorously vet immigrants from hostile states, fund local authorities who choose to enforce immigration laws, and reform our broken asylum procedures. Similarly, on matters of conscience, a judge has prevented the president from restoring religious liberty protections that would have permitted employers to opt out of Obamacare’s mandate that their insurance plans cover contraception. Likewise, a federal judge enjoined the administration from enforcing its regulation preventing taxpayer-funded healthcare providers from referring women for abortions.
While reasonable people can disagree on policy, it is inarguable that this over-broad remedy constitutes a usurpation of executive power and judicial overreach. Universal prohibitions go beyond the relief necessary to satisfy the justiciable demands of the individual parties in a given case. More damaging still, on each of these issues, the nationwide injunctions serve the political interests of the modern Democratic Party. The judiciary can ill afford such a nakedly partisan impression because it calls into question its legitimacy as a neutral arbiter of cases and controversies.
Vice President Mike Pence recently highlighted the nature of this obstruction to the Federalist Society: “[A] single district court judge can issue [a nationwide injunction], effectively preventing the duly-elected president of the United States from fulfilling what he believes is a constitutional duty.” Worse, they “undermine the rule of law and the separation of powers that are central to our nation’s founding, that lie at the very heart of our Constitution.”
This last point is critical. In “Federalist No. 78,” Alexander Hamilton reasoned that the federal judiciary “will always be the least dangerous branch” because it “has no influence over either the sword or the purse.” Its power, instead, emanates from its “judgment.” From plebs to presidents, Americans respect judicial authority as legitimate when judges behave fairly and neutrally, without regard to personal preferences or politics. The judicial power is only as persuasive as the public’s trust in it. Despite decades of progressive judicial activism at the highest level, Americans have rightly kept faith with the federal judiciary.
In 2019, however, American politics are bitterly divided and strange. A real estate mogul from Queens occupies the Oval Office, and a bartender from the Bronx is the most famous person in Congress. Nothing can be taken for granted. This moment is not conducive to stress testing the judiciary’s institutional legitimacy. If political plaintiffs can enlist federal judges to overturn the results of a presidential election, one policy and one nationwide injunction at a time, the judiciary will suffer a crisis of public confidence. A neutered yet simultaneously overreaching judiciary threatens the separation of powers principle. And then, things fall apart.
With the addition of Justice Brett Kavanaugh, however, the Supreme Court has a constitutionalist majority. Since the Trump administration announced its desire to consign the nationwide injunction to the ash heap of legal history, the court will soon have the opportunity to end, as Abe Fortas called it in 1967, this “license for mischief” that arms “each of the federal district judges in this Nation with power to enjoin enforcement of regulations and actions under federal law designed to protect the people of this Nation.” The sooner, the better.
Craig Trainor is a criminal defense and civil rights attorney in New York City. He previously served as a law clerk to a U.S. District Court judge.
