While one can define a nationwide injunctions (a court order compelling the federal government to take a specific action or refrain from a specific action that binds parties and non-parties), it is almost impossible to characterize its impact since it defies all legal logic. It is a ruling by one federal district court judge that orders the federal government to take or refrain from taking actions and binds all persons related to the issue, including parties not before the court.
To paraphrase the songwriter Pete Seeger, the judges issuing nationwide injunctions are taking the U.S legal system to the neck-deep water of the big muddy, and those fool judges say, “Push on.” Waist Deep in the Big Muddy is a Vietnam-era protest song about a captain who leads his men into a river over the objections of a sergeant who knows the river. As the men walk, the water rises up to their necks. The sergeant again asks the captain to turn around, but the captain commands them to “Push on.”
Nationwide Injunctions are the tools a small percentage of activist federal district court judges employ to block President Trump’s first and second-term agendas. President Trump complained about these roadblocks in his first term, and now he complains about them more than he did in his first term. He even wants the “rogue judges” issuing these injunctions to be impeached. Unfortunately, his rhetoric will get him nowhere.
Nationwide injunctions involve a wide range of issues, including birthright citizenship, immigration, deportation of illegal criminals, disaster relief, the Department of Education, the firing of civil servants, and foreign assistance, to name only a few of the president’s actions being enjoined.
On October 1, 2019, ReformTheKakistocracy.com published Nationwide Injunctions—Judiciary Acting as Congress. The article provides an overview of the use of injunctions since the Judiciary Act of 1789. It concludes, “The fact that Congress has not addressed an issue does not ever give a court authority to legislate.” While its conclusion is technically correct, it does an injustice to Congress and allows the U.S. Supreme Court to escape responsibility.
Congress, by implication, did act by doing what it does best: delegating away its authority—in this instance, to the Supreme Court. The Supreme Court’s failure to manage the lower courts allows these foolish district court judges to “Push on [the country]” deeper into the muddy legal waters, destroying the rule of law by allowing a few district court judges to act as super-legislators.
Before the 1960s, nationwide injunctions were rare. According to the Harvard Law Review, from 1963 forward, there have been 127 nationwide injunctions, with 96 issued between 2001 and 2023. Sixty-four of the nationwide injunctions were against President Trump. Since then, another 15 have been issued against Trump, totaling 79. By contrast, 12 were issued against George W. Bush, 19 against Obama, and 28 against Joe Biden.
How are nationwide injunctions allowed to continue?
It’s the Supreme Court, stupid!
Yes, Congress and the U.S. Supreme Court have the authority to regulate district courts’ issuing nationwide injunctions. Article III, section 1 gives Congress the power to establish, restructure, or eliminate the jurisdiction of the federal district courts since they are the creation of Congress.
Exercising its power over the federal courts in 1934, Congress enacted the Rules Enabling Act, which gave the Supreme Court the power to establish procedural and evidentiary rules for the lower courts. The Supreme Court is empowered to propose rules for the lower courts. If it transmits a proposed rule to Congress by May 1 of the year it seeks to be effective; it will take effect after December 1 unless Congress disapproves of it.
An alternative approach is for the Judicial Conference of the U.S. to propose new rules through its committee structure. This process, however, can take years.
The Supreme Court has not employed either of these processes to limit district court judges’ use of nationwide injunctions.
Since the nation continuously experiences the antics of a polarized Congress, it would not be very reasonable to believe Congress will directly address this situation. This leaves the Supreme Court with the task of limiting the use of nationwide injunctions.
Since the U.S. Supreme Court has not acted since the issuance of nationwide injunctions exploded with the first Trump term, it can be assumed the Supreme Court supports the lower courts issuing nationwide injunctions. Since Congress is incapable of legislating a solution and the Supreme Court will not act, the country is in the dangerous position of being run by a group of activists’ district judges willing to bind the nation to the opinions of a local judge, with jurisdiction over a small number of the nation’s people and territory.
Is there a solution?
In a game of political hardball, the only option Republicans have rests with Congress using its spending power. The Republicans can secure leverage by attaching a rider to a must-pass appropriation bill. The text would prohibit appropriated monies, including money for staff, the building, or other resources, from being used by the judiciary to issue or enforce nationwide injunctions. The Democrats will oppose it, but with the Republicans having a majority in both houses of Congress, they must insist on the rider remaining part of the appropriations. If not, they can refuse to bring the appropriations bill to the floor for a vote.
William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. It received five stars from Readers’ Favorite. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at wlk@ReformTheKakistocracy.com
