Vice President Mike Pence says that the Donald Trump administration will ask the US Supreme Court to bar federal district courts from issuing nationwide injunctions -- the court orders that make the entire government stop enforcing a law or policy that one district judge finds is likely to be unconstitutional.
Such injunctions are always bad for the administration that’s in office, so you can understand why this Republican administration might think the conservative-leaning Supreme Court would be sympathetic to its request.
But in the long run, nationwide injunctions are a powerful judicial tool to check the president and Congress, regardless of party. So you can expect the justices to think hard before taking that power away from lower courts -- and effectively transferring it to themselves.
Until Pence’s comments on Wednesday in a speech before the Federalist Society, the whole topic of nationwide injunctions was one that only law professors could really love. And love it we did. An important article appeared in the Harvard Law Review in 2017 arguing for reform of the practice. That led to commentary and discussion, including another important 2018 article in the New York University Law Review in defense of nationwide injunctions.
Law professors care about the structure of the whole legal system, and that emphasis shaped the legal analysis on both sides. Such injunctions didn’t appear in the US until the 1960s, and even then were not widely accepted. They have become increasingly common in the past decade. Pence said in his speech that the Trump administration has been blocked by more nationwide injunctions than the previous presidents combined.
The law professors against the injunctions (also sometimes called “universal” injunctions because they bind the government universally) point out that the decisions of individual federal district courts aren’t supposed to be binding on other jurisdictions. It’s anomalous for one judge in one place to issue a ruling that affects the whole country.
The critics add that allowing nationwide injunctions leads litigants to cherry-pick judges whom they expect to be sympathetic to their cause. That’s why conservatives went to Texas to get the Affordable Care Act blocked nationwide, and why liberals went to northern California and Washington State to go after President Donald Trump’s Muslim travel ban.
The leading legal defense of the injunctions is that there are some policies where it would simply make no sense for the law to be different in areas that happen to fall under the jurisdiction of different federal courts. Immigration is an obvious one. It would be very strange if different legal standards for admission applied at border crossings in Texas than in California.
What’s more, sometimes blocking a policy in one place effectively means blocking it everywhere. If Trump’s travel ban had been blocked in some places but not others, that presumably would have allowed people covered by the ban to travel to different ports of entry to get into the country.
The thing about this serious and earnest law professor debate is that it has a tendency to downplay the brutal power politics that infuse the question of nationwide injunctions. The real-world political question raised by the injunctions is who will win and who will lose if such injunctions are disallowed.
The answer is a little tricky. For one thing, nationwide injunctions are a tool used to go after the president and Congress. They are attractive to whichever party is out of power -- to Republicans who lost the Obamacare fight in Congress to Democrats, and to Democrats who lost the presidential election to Trump.
That’s probably the reason that Congress hasn’t passed proposals to outlaw the injunctions. Members of Congress are pretty good at remembering that they won’t be the majority party forever. It’s a little risky to pass a law prohibiting a legal tool your side might need in the future.
When it comes to the Supreme Court, the conventional wisdom is that the justices are perfectly happy with the injunctions. Admittedly, their use has increased rapidly in recent years. But if the Supreme Court wants to overturn a given nationwide injunction, it can do so, provided there are five votes.
Under the current structure, then, the justices can leave nationwide injunctions in place and avoid taking responsibility for them. But they have a failsafe for injunctions they really don’t like; they can overturn them.
If the justices were to hold that the lower courts lack the power to issue nationwide injunctions, then there would be only one way for the courts to block a law nationwide: The Supreme Court would have to issue the injunction itself. After all, it’s the only court with a truly national jurisdiction.
That wouldn’t give the justices any extra power, because they can already issue nationwide injunctions. But it would give the justices more work.
They would have to field requests constantly for nationwide injunctions in cases that haven’t yet been resolved by the lower courts. (They are now asked to overturn nationwide injunctions when those are issued by lower courts, but aren’t plagued by ceaseless requests to issue such injunctions in the first place).
The upshot is that, if they prohibit nationwide injunctions by the lower courts, the justices will be agreeing to place themselves more in the spotlight, without the plausible deniability that allows them to leave injunctions in place.
It’s conceivable that the current Supreme Court would be willing to take on that even more prominent role, in the expectation that the five conservative justices will be prepared to grant their own nationwide injunctions against Democratic presidents and deny them when it comes to Republican presidents.
Yet it isn’t totally clear that, from the court’s perspective, this higher profile role actually is worth the effort. Nationwide injunctions may survive the Trump administration’s hopes of getting the Supreme Court to do away with them.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to US Supreme Court Justice David Souter. -- Ed.