Judicial blocks on Trump spark battle over nationwide injunctions

The Trump administration’s repeated losses in courts have sparked Republican efforts to limit the reach of the judiciary, something Democrats argue is designed to hamstring reviews of lawless orders.

Congressional Republicans have rolled out two legislative vehicles that would curb nationwide injunctions, arguing this will restore order to the judiciary and put district court judges in their place.

“These rogue judge rulings are a new resistance to the Trump administration and the only time in which judges in robes in this number have felt it necessary to participate in the political process,” Rep. Darrell Issa (R-Calif.), the sponsor of one such bill to limit nationwide injunctions, said at a hearing this week.

“The federal judiciary isn't interpreting the law. It is impeding the presidency. It is, in fact, not co-equal, but holding itself to be superior.”

But Democrats say the bills are an attack on a system that is rightfully reviewing a record-high number of executive actions from President Trump that exceed the bounds of the law.

District court judges have the power to pause Trump directives they find may be unlawful as the case is further litigated, and under presidents of both parties they’ve imposed those orders on a nationwide basis to protect those across the country who might otherwise be impacted by what could be an illegal action.

“We've heard repeated complaints from Republicans about the number of injunctions issued against this president compared to other presidents. Why so many?” said Sen. Dick Durbin (Ill.), the top Democrat on the Senate Judiciary Committee.

“They ignore the fact that this president has issued more than 100 executive orders, the most by any president at this point in his term in at least four decades. Many are clearly illegal,” he added, pointing to Trump’s directive to end birthright citizenship for those born in the U.S. to noncitizen parents.

In pushing their legislation, Republicans have complained about the power of one judge to stall a Trump directive, citing a string of court cases where judges have least temporarily blocked his policies.

That includes several judges who have blocked Trump’s attempt to restrict birthright citizenship and a San Francisco-based federal judge who reinstated 16,000 probationary employees fired by the Trump administration.

U.S. District Judge James Boasberg’s ruling temporarily barring the Trump administration from relying on the Alien Enemies Act to deport migrants to a Salvadoran prison has sparked attacks of the debate from the right.

Legislation from Issa as well as Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) would bar nationwide injunctions — limiting relief only to the parties that have directly sued as opposed to those who might also be impacted.

Steve Vladeck, a professor at Georgetown University, told lawmakers that applying relief in such a narrow way wouldn’t make sense.

“Consider the birthright citizenship cases. Do we really think that parents should have to challenge that policy one child at a time? Would it make any sense at all, even on a broader scale, for the scope of birthright citizenship to differ in Arizona, New Mexico and Texas, simply because those three states fall into three different circuits,” he said during a Wednesday hearing.

“Any time a court invalidates a state or federal law on its face, rather than as applied to the specific plaintiffs, it is necessarily providing relief to non-parties, since the law can no longer be enforced against anyone.” 

Legal scholars agree nationwide injunctions didn’t exist at the country’s founding and emerged in the mid-20th century. But in recent years, judges have increasingly issued a flood of such rulings, accompanied by growing scrutiny of their legitimacy.

Judges issued six nationwide injunctions during President George W. Bush’s administration, according to an analysis published in the Harvard Law Review. The number doubled to 12 during the Obama administration before skyrocketing to 64 during Trump’s first term. 

During the Biden administration, the number of nationwide injunctions fell back to 14, a figure that has already been surpassed in a matter of weeks in the second Trump administration.

Republicans have repeatedly cited that gap as evidence the judiciary is attempting to thwart Trump’s agenda. But Democrats pin the blame on Trump, saying the dozens of injunctions are merely the result of him implementing illegal policies.

The conversation often goes hand in hand with complaints that various parties are “judge shopping” by bringing cases in districts they expect to have a more favorable outcome.

During the first Trump administration, advocacy groups often brought challenges in California, which oversaw a fair share of litigation on his environmental and immigration policies.

Under Biden, state attorneys general and others often challenged his immigration policies in Texas.

Just last week, the Trump administration filed a case in a one-judge district in Waco, Texas, asking for a declaration that its plans to halt collective bargaining contracts for federal employees are legal. Unions have challenged Trump’s executive order on the matter in California and D.C.

Prior proposals to curb nationwide injunctions have come from both parties, but the effort is getting a renewed focus under a GOP majority and would likely be signed by Trump, who has also bashed Boasberg and called for him to be impeached.

Boasberg is an appointee of former President Obama who was previously appointed to a local court by former President George W. Bush.

The House was prepared to take up Issa’s bill this week, only to cancel votes after Speaker Mike Johnson (R-La.) was dealt a blow in his effort to quash a bill on parental proxy voting. A hearing on Grassley’s bill was held this week, though the timing on any vote is unclear.

As Republican lawmakers push for reform, the Trump administration has repeatedly urged the Supreme Court to take action by filing several pending emergency appeals that all make the case that district judges are going too far.

“Government-by-universal-injunction has persisted long enough, and has reached a fever pitch in recent weeks. It is long past time to restore district courts to their” proper role, the Justice Department wrote in the administration’s birthright citizenship appeal.

It’s clear the focus on nationwide injunctions is also on the mind of federal judges.

Hours after Issa’s hearing, a federal judge overseeing a second suit challenging the Trump administration’s firing of probationary employees declined to extend his injunction nationwide and only applied it to the 19 Democratic-led states that are suing.

“Not every state joined this lawsuit — thirty-one did not. It is sometimes appropriate — even necessary — for courts to issue nationwide injunctions stopping unlawful actions of the Government. But those instances are rare, and this case is not one of them,” wrote U.S. District Judge James Bredar, an Obama appointee in the U.S. District Court for Maryland.

For his part, Grassley acknowledged that lawmakers often cheer injunctions placed on policies of the president of the opposing party.

“Most of us in this room have at various times supported or opposed universal injunctions. My fellow Republicans and I sometimes like them when there's a Democratic president, and my Democratic colleagues probably like them right now, even though they criticized them a few months ago under President Biden,” he said.

“Too often we accept politics over principle, but the truth is that we all know this isn't how government and the judiciary should operate.”

But Durbin questioned the timing of the GOPs focus on injunctions.

“I'm happy to discuss the legal and practical implications of nationwide injunctions, but as I've said many times before we cannot have one set of rules for Republicans and another set of rules for Democrats,” he said.

“Any legislation on this topic must be based on the merits, not political expediency.”