WASHINGTON: Republican President Donald Trump and his Democratic predecessor Joe Biden may not agree on much, but there is one issue on which they have been united: The need to blunt a powerful weapon that federal judges have been deploying at a quickly rising clip.
Top lawyers for each president separately urged the US Supreme Court to limit the authority of judges to issue nationwide - or “universal” - injunctions that can stop a government policy in its tracks.
“This court should declare that enough is enough,” Sarah Harris, serving at the time as the Trump administration’s acting US solicitor general, told the justices in a March 13 filing seeking to unshackle his executive order to restrict automatic US birthright citizenship.
Elizabeth Prelogar, the solicitor general under Biden, less than three months earlier in a New Year’s Eve bid to unblock an anti-money laundering law frozen by a federal judge, told the justices that these orders are causing “substantial disruption.”
The power of a single judge to issue a nationwide injunction has become pivotal in the question of whether Trump can quickly implement his aggressive agenda, pushing the limits of presidential power. Several cases either already awaiting action by the Supreme Court or heading toward nine justices involve such a judicial order.
“No president likes them, whether that’s a Democratic president or Republican president, because they’re really a method of cabining executive power,” said University of Virginia law professor Amanda Frost, who has studied these judicial remedies.
The pressure on the Supreme Court or Congress to limit these injunctions is building. Trump on March 20 called the situation “toxic” and urged the Supreme Court to act. Trump and fellow Republicans have escalated their attacks on judges who have impeded his executive actions - to purge federal workers, shutter agencies, slash federal funding, bar transgender people from military service, target perceived enemies and broadly roll back workplace diversity programs, among others.
The president’s call for Congress to impeach US District Judge James Boasberg, who issued an order to halt the swift deportation of alleged Venezuelan gang members after Trump invoked a little-used 1798 law, drew an extraordinary rebuke from US Chief Justice John Roberts. The stakes are escalating, with Boasberg on Thursday suggesting Trump’s administration had violated his order.
The validity and origins of nationwide injunctions are hotly debated by legal experts. Instead of granting an injunction that offers relief to a specific plaintiff who sued - the more common scenario - these nationwide orders halt the government from executing a policy against everyone, extending beyond the parties in a specific case. Judges often justify their use to address what they perceive as broader harm and to maintain uniformity of the law nationally.
Republicans and Democrats alike have railed against the ability of a single federal judge to exert such power, claiming it distorts the litigation process and politicizes the judiciary. Yet such injunctions have proven useful to members of the opposition party in curtailing what they see as presidential overreach.
According to a tally, opens new tab by Georgetown University law professor Stephen Vladeck, since Trump returned to office in January federal district courts have issued preliminary orders and injunctions - both universal and more limited - in 69% of cases in which plaintiffs requested such relief.