Republicans Seek to Limit Courts’ Nationwide Injunctions

by Tim Ryan, Court House News, December 1, 2017

WASHINGTON (CN) — Mirroring the Trump administration’s recent complaints, congressional Republicans grasped Thursday for ways to block courts from handing down nationwide injunctions against federal policies.

Nationwide injunctions allow federal district courts to block laws across the country rather in just their own jurisdiction. Such injunctions have issued this year to block Trump’s immigration policies and travel bans on people from Muslim-majority countries.

Republicans claim that nationwide injunctions foster forum-shopping for sympathetic judges, who many cause confusion if issues are before judges in multiple jurisdictions.

At a Thursday hearing of the House Subcommittee on Courts, Intellectual Property and the Internet, Republicans peppered law professors with suggestions on how to stop courts from taking such steps. They received some pushback on the idea and no clear solution emerged.

“So as we look at the problem today in this testimony, I hope you will all recognize this is a problem in need of a solution, one that should be narrowly crafted, solve the problem, and not deny the appropriate remedies of parties when they come before the court,” Rep. Darrell Issa, R-Calif., said at the hearing.

Irony pervaded the event, as the Trump administration and congressional and Cabinet-level Republicans have acknowledged they are packing the courts with conservative judges to try to remold the country under a solidly Republican Congress that has not managed to achieve much legislatively. Republicans also have forum-shopped, particularly immigration cases, which they often file in Texas. Trump also announced, by Twitter, that transgender people would be barred from serving in the military, a de facto nationwide order that also has been blocked by court order.

In a November speech to the Heritage Foundation, Attorney General Jeff Sessions said nationwide injunctions make judges “super-legislators for the entire United States.”

“A single judge’s decision to enjoin the entire federal government from acting is an extreme step, and all too often, district courts are doing it without following the law,” Sessions said in the speech.

He criticized a Hawaii federal judge who blocked Trump executive order barring people from entering the United States from six Muslim majority countries, asking how “a judge sitting on an island in the Pacific” could do such a thing.

On Thursday, Samuel Bray, a professor at the UCLA School of Law, told the committee that nationwide injunctions gained currency in the 1960s and 1970s, then became more common in recent years when Republican state attorneys general “weaponized” the practice against Obama administration policies.

Bray told the committee that nationwide injunctions can be problematic because they give legal remedies to people who are not directly a part of a case. He said they can be an end-run around class-action requirements and may force the Supreme Court to decide cases with a thinner record built on fewer court decisions.

But the Republican-led committee faced pushback from Democrats and from Amanda Frost, an American University Washington College of Law professor who testified that nationwide injunctions are necessary in cases involving immigration, where enforcing a decision in some states but not in others could lead to absurd results.

She said that if courts are limited in these cases, their injunctions essentially have no effect. For example, a Texas court’s injunction against Obama-era immigration programs that gave protections to certain people in the country illegally would have carried little meaning if it only applied to Texas, because people would still receive the protections in other parts of the country and could move to Texas if they wanted.

“It just seems unfair and arbitrary to have a law apply to some but not all,” Frost told the committee.

All at the hearing agreed courts have issued nationwide injunctions against the policies of both parties. Professor Bray warned Republican lawmakers not to craft legislation on the issue simply because the trend has swung back against them since Trump took office.

“We don’t have to be distracted by the latest national injunction,” Bray said. “We can take a longer view; we can get the law right.”

Democrats pointed out that Republicans cheered nationwide injunctions under the Obama administration, but changed their tune when Trump took office.

“It seems like it’s gotten to the point where we’re deciding our case law based on who is in the executive branch,” said Rep. Hank, D-Ga.

While Republicans received several suggestions from the legal experts on how to stop courts from issuing nationwide injunctions, none seemed particularly popular. Bray suggested Congress pass a law that simply states courts cannot issue an injunction against a “nonparty.”

Rep. Bob Goodlatte, R-Va., suggesting returning to a system in which requests for nationwide injunctions must be heard by a panel of three judges. Congress passed a law in 1910 that did just that, but repealed it in 1976 after several constitutional challenges, deciding the requirement put an unduly large burden on federal judges. The legal experts agreed that approach will be burdensome for a federal bench that is already overtaxed.

Frost cautioned against legislation flat-out eliminating nationwide injunctions, saying lower courts are carefully weighing the factors in deciding when to hand down nationwide injunctions

“I think the district courts are beginning to think about this a little more seriously than they did in the past,” Frost said.