Universal Injunctions Are Out of Control

In less than two months, President Donald Trump has signed more than 80 executive orders, reshaping federal government policy and administration of the executive branch on a range of issues including immigration, national security and defense, gender, education, and government efficiency.

Predictably, the Left is trying to use the courts to fight this political battle, seeking out judges who they believe will step in and block Trump’s executive orders, in some cases almost before the ink of his signature is even dry.   

If it needs to be said, the legislative and executive branches must comply with the Constitution when they exercise their powers, and judges are sometimes asked to decide whether they have.

But the judiciary is subject to the same Constitution, which limits judicial power to deciding “cases” and “controversies,” that is, to settling legal disputes between specific parties. These legal challenges to Trump’s executive orders are trying to go far beyond those limits.

Specifically, these lawsuits not only ask judges for injunctions to put Trump’s orders on hold before their legality has even been decided, but to use so-called universal injunctions to do so for the entire country rather than simply the parties bringing the lawsuits.

During Trump’s first term, our colleagues Hans von Spakovsky, Paul Larkin, and GianCarlo Canaparo addressed problems with these controversial moves.

The Left is at it again. The challenge to Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship,” is a good example. The 14th Amendment provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In this executive order, Trump declared that, even though born in the United States, a child is not subject to its jurisdiction if his or her parents are neither citizens nor lawful permanent residents. This would end the practice of so-called birthright citizenship.

Left-wing advocacy groups challenged the constitutionality of this executive order in the U.S. District Court in Maryland, asking for a universal injunction to put the order on hold nationally.

Within days, Judge Deborah Boardman granted the injunction, attacking what she called a “flagrantly unconstitutional” executive order that would inflict “immediate and irreparable harm on newborns and their families across the United States.”

The U.S. Court of Appeals for the 4th Circuit denied the Trump administration’s request to limit Boardman’s injunction to Boardman’s actual jurisdiction. Boardman is just one of the 662 district judges in active service across the country’s 94 judicial districts, but she alone was able to prevent Trump’s order from taking effect anywhere in the nation.

Tactics like these are an attempt to use the judiciary for explicitly political purposes, a radical departure from how the judiciary was designed and how it operated for most of American history. The Supreme Court has called injunctions a form of “extraordinary” relief because they block a law or policy before it is actually found to be unlawful. Universal injunctions were even more rare; only six of President George W. Bush’s executive actions were enjoined nationwide.

That was then, this is Trump. Scholars have documented how universal injunctions “dramatically spik[ed]” during Trump’s first term. In fact, more than half of all universal injunctions since 1963 were issued against Trump’s first-term policies. But the pattern is also becoming much more partisan, with 92 percent of those anti-Trump injunctions issued by Democrat-appointed judges.  

Needless to say, the possibility of blocking a policy for the entire country makes forum-shopping, finding districts and judges most likely to deliver the desired political result, almost inevitable. It’s no coincidence that a majority of universal injunctions against Trump’s first-term executive orders came from U.S. District Court judges in California, Maryland, and the District of Columbia.

The challenge to Trump’s executive order on birthright citizenship is an example of how this gambit works.

Remember that an injunction is supposed to be an “extraordinary” step because the judicial process isn’t yet underway. Judges may issue injunctions only if four conditions are met, including that the plaintiffs will likely win in the end and would suffer “irreparable harm” if the judge doesn’t step in now. The latter requirement, however, is in the eye of the judicial beholder and a judge may well claim the label “irreparable harm” for what, in fact, are simply her own policy objections.

Boardman’s opinion, for example, asserted that eliminating birthright citizenship would throw “families’ lives into chaos and distress,” “rip away the promise of citizenship for countless babies,” and constitute “a form of punishment more primitive than torture.”

Whether individuals being in the United States illegally are the cause of familial chaos and distress, or whether citizenship should be made available to illegal aliens, are obviously policy issues for Congress or the executive branch. They are not legal considerations that a judge should be able to use to block policies she does not like. Her wild rhetoric about a policy being “more primitive than torture” only makes the point more strongly.

But it gets worse. In Mahmoud v. McKnight, parents of various faiths challenged the Montgomery County, Maryland, school board’s policy of mandating participation by all school children in classes that use storybooks with “LGBTQ characters” and refusing to inform parents when those materials will be used. The policy even covers pre-kindergarten classes. The parents claimed this policy violated their right to direct the religious upbringing of their children and sought an injunction. Boardman not only denied the request, but said that the policy imposed no “cognizable” injury to the parents’ rights at all. None whatsoever.

Finally, all the forum-shopping and political injunction-wielding will likely result in competing, and possibly conflicting, universal injunctions against the same policy.

In this case, for example, 4th Circuit Judge Paul Niemeyer observed that “at least four cases in other United States District Courts are addressing similar challenges to Executive Order 14160.” Talk about chaos and distress.

Universal injunctions, especially when used in these political campaigns, will only increase the 65% of Americans who lack confidence in the nation’s judicial system or already believe that judges decide cases based on politics rather than law. The Supreme Court or Congress should consider limiting the reach of district court injunctions to the parties seeking them.

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