None other than Harvard Law Review called for major reform to the exploding practice of nationwide injunctions less than a year ago, but now that Donald Trump has returned to office, everything has changed and district judges can apparently order the Chief Executive around like a fry cook…
Last week, the mainstream media wasted an inordinate amount of energy fantasizing about President Donald Trump potentially defying the Supreme Court and declared any attempt to do so political suicide well in advance. In support of this notion, a recent Marquette University poll was frequently cited, which found, rather unsurprisingly, that 83% of respondents believe “The president is required to do as the ruling says” including 77% of Republicans. Given that the only President to defy a ruling from the Supreme Court in the entirety of our history was Andrew Jackson way back in 1832, the concept of judicial review is about as fully enshrined in our Constitutional order as anything not technically specified in the Constitution possibly could be, but despite this, the unsurprising nature of the result in the first place, and the lack of any indication from President Trump himself that he would do such a thing, the media couldn’t help themselves from wondering what might happen, should it occur, at some point, when, they do not say either. As MSNBC put it almost breathlessly, as though a part of the purpose was daring him to do so, “If Trump is contemplating defying the courts, he should remember Nixon first. The president almost certainly would not be impeached. But that doesn’t mean he would emerge politically unscathed.” In their view, “President Donald Trump’s flurry of executive orders seems destined for a showdown at the Supreme Court. Members of Trump’s administration — including Vice President JD Vance and tech billionaire Elon Musk — are already raising the possibility of defying the court should it rule against the administration. This raises the stakes for the court: a ruling against Trump risks the executive branch’s defiance, which could damage the court’s legitimacy. Will Trump comply with its rulings? What will be the consequences of defiance? These are questions not only of law, but also of politics.” Setting aside the speculative nature of the question, which apparently is the de facto standard for coverage of this second Trump Administration in these early days, Vice President JD Vance and Elon Musk were actually referring to an entirely different set of orders, issued by an entirely different set of courts that are not specified in the Constitution, and up until very recently, were not generally empowered with the ability to issue nationwide rulings in the same binding manner as the Supreme Court. The courts in question are, in fact, at the district level, over 90 of them across the country, and according to the official United States Courts government website, they are designed to handle cases on an individual level, conducting “trials and hearings, resolving disputes by determining the facts and applying the law to those facts. Within limits set by Congress and the Constitution, district courts have jurisdiction to hear nearly all categories of federal civil and criminal cases.”
The civil cases that are at issue here begin when a “complaint describes the plaintiff’s damages or injury, explains how the defendant caused the harm, shows that the court has jurisdiction, and asks the court to order relief. A plaintiff may seek money to compensate for the damages, or may ask the court to order the defendant to stop the conduct that is causing the harm. The court may also order other types of relief, such as a declaration of the legal rights of the plaintiff in a particular situation.” By their own description, the role is quite different from the Supreme Court, which is “the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.” Even beyond the obvious supremacy issue, the key question is whether or not a district, which hears local cases within a certain area and applies the law directly to the plaintiffs in question, has the power to issue injunctions and orders that bind the entire nation, much less the President of the United States. In April last year, Harvard Law Review considered the matter, noting from the very beginning that “some scholars, jurists, and attorneys criticize the practice of district courts issuing nationwide injunctions as an inappropriate abuse of power. Others defend nationwide injunctions as a powerful way to check federal agency overreach and ensure robust relief for plaintiffs.” Regardless, “nationwide injunctions have indeed grown much more common,” in recent years, “dramatically spiking during the Trump Administration before decreasing during the Biden Administration,” despite no one having a clear definition of “what a ‘nationwide injunction’ is” in the first place. Overall, Harvard Law Review found, “Nationwide injunctions issued over the past twenty years collectively reveal three main takeaways: First, nationwide injunctions are becoming more common. Second, they are overwhelmingly issued by judges appointed by a President from the opposite political party as the President who promulgated the policy at issue.” Ultimately, they concluded, “The rise in nationwide injunctions, coupled with the consequences…suggest that reform is needed to curb the abuse of extreme nationwide injunctions that risk politicizing the judiciary…If the goal is to disincentivize the political gamesmanship of nationwide injunctions, instead of their absolute use, random judge selection, multi-judge panels, or funneling through designated forums can constrain the most extreme uses without eliminating the remedy entirely. And most importantly, these reforms could also help restore perceptions of the judiciary as nonpartisan, while preserving judges’ ability to issue nationwide relief in cases where it is necessary to curb executive abuse.”
Not surprisingly, this particular article was prompted after a conservative district court judge issued a nationwide injunction against the use of an abortion pill while President Joe Biden was in office. Back then, the power of a district judge to do such a thing was questionable at the least, something to be reformed or done away with entirely at the most, but with President Trump back in office, the story has radically changed, like so much else. Suddenly, the power of these judges, none of whom are explicitly granted any power whatsoever under the Constitution as the district courts are purely a creation of Congress, is effectively unlimited. Contrary to the conventional wisdom of less than six months ago, these judges can order the President around at a whim and if the President refuses to comply with the exercise of powers the judges don’t have in the first place, the result is certain to be a Constitutional crisis. Rex Huppke, writing for USA Today, said exactly that, literally “We’re on the cusp of a constitutional crisis” after President Trump might’ve, emphasis on might’ve, refused to turn planes deporting illegal immigrant gang members out of the United States while they were in mid-air. He began, “I remember about five minutes ago when Republicans and right-wing pundits couldn’t stop prattling on about President Joe Biden being ‘lawless.’ They seem oddly quiet now as current President Donald Trump appears to be openly defying court orders, denying people due process and generally behaving like he’s never met a law that applies to him.” The situation Mr. Huppke referred to arose after the Trump Administration invoked the Alien Enemies Act of 1798 to deport members of a Venezuelan gang that he’d recently declared a terrorist organization without review by the courts. In response, the American Civil Liberties Union and Democracy Forward filed suit on behalf of five gang members, landing in a district court presided over by James Boasberg. District Judge Boasberg proceeded to issue a temporary restraining order before even hearing the case, then promptly expanded it into a nationwide class action lawsuit covering every possible non-citizen in the country. As USA Today described the sequence of events in another article, the district judge moved before the Trump Administration even made the specific announcement, “Hours before the proclamation’s release, Boasberg in Washington, D.C., granted a temporary restraining order Saturday and ordered the government not to deport five Venezuelan nationals cited in a lawsuit brought by two nonprofits, Democracy Forward and the American Civil Liberties Union. During a subsequent hearing Saturday evening, the judge turned the lawsuit into a class action and extended the temporary restraining order to all noncitizens in the United States covered in Trump’s invocation of the Alien Enemies Act.” The judge, in an oral-only ruling, insisted, “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.” The Trump Administration continued with three planned flights later that same day, two of which were apparently in the air when the ruling was formalized, one on the runway. According to Mr. Huppke, this somehow means that “pretty much any of us could be swept up and unceremoniously dumped into what Trump keeps feebly attempting to call the Gulf of America. That’s scary. We’re teetering on the edge of a constitutional crisis and dealing with a president who appears to be lawless.”
Of course, by the Court’s own website, it is District Judge Boasberg who is exhibiting a stunning lawlessness. First, the plaintiff in this case is the ACLU, not the individuals impacted, making it unclear if they have standing to make the complaint, or if it’s truly in the court’s “jurisdiction.” Second, the case was filed on behalf of five individuals, then magically expanded to the entire country, even though the district court’s jurisdiction most certainly doesn’t extend that far and is in indeed supposed to resolve cases between individuals. As the website put it, district courts can only respond to the needs of the plaintiffs in front of them, because the “complaint describes the plaintiff’s damages or injury, explains how the defendant caused the harm, shows that the court has jurisdiction, and asks the court to order relief. A plaintiff may seek money to compensate for the damages, or may ask the court to order the defendant to stop the conduct that is causing the harm.” The language is clearly directed at the remedy for a particular plaintiff, not all possible plaintiffs. Further, he issued the stay prior to even ruling on the issue, pre-emptively preventing the President from executing his policy preferences and he did so in a manner where he appears to believe judges are empowered not only to make rulings on the law, but to direct the day-to-day operations of the executive branch before a ruling is even made. Especially considering the Constitution itself empowers the President and the President alone with unitary executive authority in affairs of national security, it’s almost impossible to conclude that District Judge Boasberg didn’t radically, radically exceed the scope of his authority – and both he and the media likely know it. There is no reasonably objective standard, in light of the district courts agreed upon role and the opinion of legal scholars at Harvard Law Review, that a judge has the right to dictate to the President in this fashion. This isn’t a defendant in a small claims court, divorce court, or Judge Judy. This the Chief Executive of the United States of America.
Nor is District Judge Boasberg alone. Since President Trump has returned to office, there have been injunctions against the firing of federal employees, the buyouts of federal employees, the cancelling of grants, transgender in the military, birthright citizenship, and more, all of which are now cheered on however spurious the grounds and whatever was said about the issue while Joe Biden was in office, with any failure of President Trump to allow himself to be dedicated to by local judges is deemed a Constitutional crisis. Constitutional crises in general are overrated, though even I myself have fallen prey to the idea that something will prompt one. In truth, the Founders were farsighted enough to structure the government to deal with almost any eventuality. In this case, the three co-equal branches are not an accident. When Jackson defied the courts, Congress could have enforced the ruling by barring funds for his policy or even impeaching him. Their choosing not to do so, meant that two out of three co-equal branches of government agreed, overruling the lone dissenter. While I doubt anything so dramatic will come under President Trump, it’s almost like they wish it was so. Rather than rightfully directing their ire at lawless judges, they are provoking the one Constitutional officer empowered with the broadest possible authority. In my opinion, this will not end well for them. In the short term, people implicitly understand that not all judges or orders are equal, and that the President cannot be bossed around by Judge Judy. In the long term, I suspect the Supreme Court will agree and if they don’t, we’ll see what happens.
Confessions of a Conservative Atheist 