justice gor
justice gor

By Janita Kan

Supreme Court Justice Neil Gorsuch has issued a sharp critique of the growing practice of federal judges ruling beyond the scope of a particular case, in some court orders known as nationwide injunctions.

On Monday, the top court voted 5-4 to lift a pair of nationwide injunctions that blocked the Trump administration from enforcing its “public charge” rule that restricted new immigrants from receiving green cards if the individual is deemed likely to become primarily dependent on the government for things such as food stamps or Medicaid.

As part of Monday’s order, Gorsuch provided a concurring opinion urging that the court at some point needs to “confront” the “real problem” of nationwide injunctions. Justice Clarence Thomas, who previously issued his own rebuke over the practice in the 2018 travel ban case, joined in that opinion.

“Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem,” Gorsuch wrote (pdf).

He continued that the real problem is the increasingly common practice of federal court judges ordering injunctions of “nationwide,” “universal,” or “cosmic” scope, adding that such orders raise “serious questions about the scope of courts’ equitable powers under Article III” of the Constitution.

The Trump administration has repeatedly expressed concern over the unprecedented use of court orders by unelected federal judges to impose their own policy preferences across the nation. Scholars have not found an example of judges issuing nationwide injunctions in the first 175 years of the Republic, according to former Attorney General Jeff Sessions. Yet in recent years the practice has become increasingly common, Sessions said in 2018, with President Donald Trump having faced 25 injunctions before he’d completed his first two years in office. In an op-ed last year, Attorney General William Barr said that by September 2019 the Trump administration had faced nearly 40 nationwide injunctions since taking office. Many of those injunctions targeted the administration’s immigration policies.

Comparatively, an average of 1.5 such injunctions were issued per year against the administrations of Presidents Ronald Reagan, Bill Clinton, and George W. Bush. Under the previous administration of President Barack Obama, the average was 2.5.

Remedies issued by a court are traditionally meant to redress the injuries sustained by a particular plaintiff in the case before the court, Gorsuch said. He added that when the court goes beyond that and issues orders affecting parties not privy to the case, it’s difficult to see how the court is still acting within its judicial role of resolving cases and controversies.

In the case at hand, five district courts issued numerous injunctions that blocked the federal government from implementing its “public charge” rule. The Southern District of New York issued two nationwide injunctions blocking the enforcement of the rule. Similarly, the Northern District of California ordered the administration to not enforce its rule in California, Oregon, Maine, Pennsylvania, and the District of Columbia. In the Eastern District of Washington, a judge entered an order that stopped the government from enforcing the rule across the country. In the District of Maryland, a judge issued another nationwide injunction against the rule. Meanwhile, a judge in the Northern District of Illinois issued his own injunction but limited its scope to the state.

The injunctions in California and Washington were lifted by the 9th Circuit, while the 4th Circuit lifted the injunction in Maryland. The 2nd Circuit refused to lift the two New York injunctions, prompting the Trump administration to file an emergency request earlier in the year to the Supreme Court to lift the blocks.

Gorsuch said that although the government had some interim wins “we now have an injunction to rule them all,” referring to the injunctions issued by the New York federal judge.

“The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here,” he said.

He said such injunctions have caused judges to make “rushed, high-stakes, low-information decisions” because this practice forces parties to “rush from one preliminary injunction hearing” instead of “spending their time methodically developing arguments and evidence in cases limited to the parties at hand.”

“Nor do the costs of nationwide injunctions end there,” wrote Gorsuch, adding that it encourages plaintiffs affected by the adverse government decision to “shop for a friendly forum to secure a win nationwide.”

“If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94- to-0 win in the district courts into a 12-to-0 victory in the courts of appeal,” he said. “A single loss and the policy goes on ice—possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay.”

He said this practice can repeat, again and again, until one party gives up or the Supreme Court agrees to review the case.

“What in this gamesmanship and chaos can we be proud of?” he asked.

Gorsuch is not the first Supreme Court Justice to criticize nationwide injunctions. Justice Thomas issued his own concurring opinion (pdf) in the landmark case, Trump v. Hawaii, which upheld Trump’s Presidential Proclamation 9645. The decision allowed the administration to enforce the refusal of entry into the United States of travelers from multiple “high-risk” Islamic countries.

Thomas said these injunctions are “beginning to take a toll on the federal court system” because they prevent “legal questions from percolating through the federal courts,” encourage “forum shopping,” and make “every case a national emergency for the courts and for the Executive Branch.”

He expressed doubt that the district courts have the authority to issue such injunctions as they “appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts.”

“If their popularity continues,” he wrote, “this Court must address their legality.”

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