Congress Contemplates Limits on Nat’l Overreach by District Judges

Nationwide injunctions from district courts have become a major political force…

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Darrell Issa/Photo by Gage Skidmore (CC)

(Emily Larsen, Liberty Headlines) Members of the House of Representatives debated how to handle nationwide injunctions from district federal judges in a House Judiciary Subcommittee on Courts, Intellectual Property and the Internet on Thursday, and contemplated proposing legislation to limit decisions that have such sweeping impact.

“Whether or not one agrees with the outcome of a particular case, nationwide injunctions clearly give, for a time, the power of the power of the entire Supreme Court to make a law of the land in a case, and effectively set a precedent or bar from similar cases,” said Rep Darrell Issa (R-CA) in his opening statement.

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Traditionally, injunctions are a remedy which apply to only the parties in a lawsuit, or those affected by a class-action lawsuit.


But in the last few years, federal courts have expanded injunctions to apply to parties and individuals which were not part of the lawsuit.

These new nationwide or universal injunctions from federal district courts have become a major political force on both the right and the left, particularly when opposing initiatives from the executive branch.

Injunctions from federal judges have paused President Trump’s travel ban, stopped Trump’s ban on “transgenders” in the military, and stopped Obama’s overtime mandate on employers.

“The point is that courts are giving remedies to non-parties,” said Samuel L. Bray, Professor of Law at UCLA. “A decision by a federal district judge doesn’t count as precedent, not even in that judge’s own district court. So why should one district judge be able to control the federal government everywhere?”

The rise of nationwide federal court injunctions presents a number of legal issues surrounding hierarchy, jurisdiction, and constitutionality.

For instance, federal district courts could contradict each other and attempt to override each other with nationwide injunctions, and it gives the Supreme Court less information for major decisions.

“When a federal district court stops a federal policy everywhere, there might be no opportunity for other federal judges to express their views, leaving the Supreme Court to potentially hear the appeal without the benefit of hearing differing views on the subject… It leaves the Supreme Court to decide major questions of federal policy more quickly, with fewer facts, and without the advice of competing views among the lower courts,” said Rep. Bob Goodlatte (R-VA), Chairman of the House Judiciary Committee.

In theory, the Supreme Court could issue a ruling which limits the power of federal district courts to issue nationwide legal injunctions.

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But expert witnesses agreed that is unlikely, noting that the court has avoided the topic in the past.

Alternatively, the Federal Rules of Civil Procedure could be amended by the advisory committee, but it has recently declined to do so.

Instead, Congress could pass a statute that limits federal injunctions.

But subcommittee members and witnesses did not agree that a statute is necessary or proper, or that federal injunctions should be banned at all.

Some expert witnesses warned that national injunctions themselves are not the root of the problem, and are sometimes necessary.

“In cases challenging federal immigration laws and policies, nationwide injunctions are often required to alleviate plaintiffs’ injuries,” said Amanda Frost, a professor of law at American University Washington College of Law.

In both the injunction to stop Obama’s deferred action for certain illegal immigrants in 2014, and the injunction to stop Trump’s travel ban earlier this year, “plaintiffs’ alleged injuries could only be alleviated by a nationwide injunction,” said Frost.

“The problem here isn’t so much nationwide injunctions. Part of the problem is the courts issuing injunctions that are too broad,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation.

Bray disagreed.

“I don’t think there’s any way to give a federal district judge the power to issue national injunctions sometimes and not other times, that will actually be logical and coherent. So I would say, a strict prohibition,” said Bray.