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How Long Before Biden’s Executive Orders Are Met With Nationwide - Injunctions?

Posted: Jan 23rd, 2021 - 4:48 am

Joe Biden has been busy signing executive orders yesterday and today. During the Trump era, Democrats streamlined a process of blocking Trump’s executive orders through national injunctions. Here’s how it worked: State Attorneys General from left-leaning states would file lawsuits in friendly courts where left-leaning and judges would promptly issue injunctions that applied to everyone.

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This started with an injunction shutting down Trump’s ban on entry for certain countries which became known as the “Muslim ban.” Trump revised that executive order but that too was met with a nationwide injunction. When Trump tried to limit funds going to “sanctuary cities” that was met with a nationwide injunction. When Trump wanted the Census to ask people if they were citizens, that got an injunction. And so on.

The most recent injunction against the Trump administration happened last month. Trump had issued an executive order regarding banning diversity training based on Critical Race Theory and a court in California issued a nationwide injunction to a portion of that.

These are just a few examples but there were dozens of others during Trump’s tenure. Last February, Deputy Attorney General Jeffrey Rosen gave a speech about these injunctions, noting how common they had become:

The first in-depth academic analysis, in the Harvard Law Review, concluded that, prior to 1963, there are no examples of nationwide injunctions. Even those who dispute this conclusion have pointed to only about a dozen potential examples from the first half of the 20th century — in stark contrast to the countless party-specific injunctions issued against the federal government during the New Deal era.

In any event, whether nationwide injunctions date to 1963 or 1939, their frequency today is unprecedented. According to the department’s best estimates, 12 nationwide injunctions were issued against the George W. Bush administration in eight years, and 19 nationwide injunctions were issued against the Obama administration, also in eight years. So that is a 58 percent increase in the Obama years, as the trend gained steam.

During the current administration, federal courts have issued at least 55 nationwide injunctions in just three years. That is a rate of nearly 18 nationwide injunctions per year. To put it another way, nationwide injunctions are being issued at over 12 times the rate as in the George W. Bush administration.

The problem is that there’s a pretty good argument to be made that these injunctions give individual judges far more power than they were intended to have. Back in 2019, AG Bill Barr made that case in a speech to the American Law Institute:

The Constitution empowers Congress to create lower federal courts, and in designing a system of 93 judicial districts and 12 regional circuits, Congress set clear geographic limits on lower-court jurisdiction. In our system, district-court rulings do not bind other judges, even other judges in the same district. This system has many virtues. It creates checks and balances within the judiciary itself and encourages what former D.C. Circuit Judge Harold Leventhal called “percolation”—the process by which many lower courts offer their views on a legal issue before higher courts resolve it…

Nationwide injunctions not only allow district courts to wield unprecedented power, they also allow district courts to wield it asymmetrically. When a court denies a nationwide injunction, the decision does not affect other cases. But when a court grants a nationwide injunction, it renders all other litigation on the issue largely irrelevant. Think about what that means for the Government. When Congress passes a statute or the President implements a policy that is challenged in multiple courts, the Government has to run the table—we must win every case. The challengers, however, must find only one district judge—out of an available 600—willing to enter a nationwide injunction. One judge can, in effect, cancel the policy with the stroke of the pen.

No official in the United States government can exercise that kind of nationwide power, with the sole exception of the President. And the Constitution subjects him to nationwide election, among other constitutional checks, as a prerequisite to wielding that power. Even the Chief Justice of the United States must convince at least four of his colleagues to bind the Federal Government nationwide.

When you add to this the fact that politically motivated AGs are forum-shopping these arguments to judges they expect will agree this becomes a pretty potent partisan weapon:

Nearly one-third of the nationwide injunctions issued in the last three years came from courts in California. Conversely, in two-thirds of the states, no nationwide injunctions have been issued at all.

Of course, under the Biden administration this process can repeat with appeals to different courts. An analysis on Twitter today suggests that’s exactly what will happen:

These courts were chosen because on top of being in favorable circuits (CA 2, CA 4, CA 9, CA DC), they had very few Republican appointees, if any at all. For example, the Northern District of CA only has 1 GOP appointee on active status, and even he enjoined admin initiatives.

— John Doe (@fedjudges) January 21, 2021

So which district courts will they file in? In the 5th, there are a number of options. During the Obama admin, it was just N.D. Tex. Judge Reed O'Connor in Wichita Falls (he's the one who declared Obamacare was unconstitutional).

— John Doe (@fedjudges) January 21, 2021

Skipping ahead to the conclusion:

This thread is long, but the takeaway should be that national injunctions aren't going away. The only differences from the Trump administration are who's suing the feds and which judges are hearing the cases.

— John Doe (@fedjudges) January 21, 2021

I wonder if Democrats will suddenly have second thoughts about all of this now that the shoe is on the other foot. Given the trend we shouldn’t have to wait long to find out. My guess is the moment some judge files an injunction against something President Biden has ordered, Democrats and the media will respond in shock The first judge to do so will be rendered into a cartoon villain. Think pieces will be written about abuse of power. Or, who knows, maybe Democrats will take it all in stride and admit that they pushed this for four years and now it’s their turn to deal with it. Yeah, right.

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