In a disastrous ruling yesterday, the U.S. Supreme Court limited the ability of individual federal judges to issue nationwide injunctions against illegal administration actions, in this case specifically blocking the national reach of an order that had stopped Donald Trump’s clearly unconstitutional move denying birthright citizenship for children of undocumented immigrants and visa holders.
The six-justice majority decision written by Justice Amy Coney Barrett said that such injunctions “are broader than necessary to provide complete relief to each plaintiff with standing to sue,” which sounds reasonable until you think about obvious unanswered question: what exactly is supposed to happen in circumstances where the administration promulgates a clearly unlawful policy but a suit is only brought in one district or only heard by one particular court?
Barrett notes on several occasions that nationwide injunctions were not used in the colonial-era High Court of Chancery in England, but we’re sorry to inform her that the world has changed. The gears of justice are slow; it hardly seems appropriate to let an administration engage in unlawful activity for weeks or months before higher courts weigh in.
From a practical standpoint, this decision enables an unprecedented situation where individuals born on U.S. territory might be considered citizens in one jurisdiction but not an adjacent one.
Have the justices given adequate thought to what this would look like? Would a person have the full rights of citizenship in a particular district — voting, serving on juries, getting security, clearances, and so on — while they could be detained by ICE and deported if they cross a domestic boundary? The idea is facially absurd, but that is ultimately what this opinion is opening the door to, while not having the integrity to make any determination on the actual merits of the unlawful proclamation.
Apart from this present case, there are many other matters where it simply would not make sense for policies to go into effect in one place and not the other. If a judge were to rule that a federal law barred the sale of certain public lands, for example, would the administration simply be able to go ahead and sell off those lands right up to the line of that particular court’s jurisdiction?
If a judge rules that the administration has violated Posse Comitatus and constitutional principles in deploying the military for domestic law enforcement purposes in one state, they’re free to deploy the Marines in a different state? All of that is nonsensical.
We say this not unaware of the legitimate dangers of overzealous district judges, issuing nationwide injunctions. Texas Federal Judge Matthew Kacsmaryk has become a go-to for right-wing extremists to advance policy goals via his propensity to issue nationwide rulings that seem to almost always strictly adhere to ultra-conservative agenda items like limiting abortion access and going after the Affordable Care Act.
The federal judiciary has rightly moved to constrain so-called judge shopping, where pressure groups and advocacy organizations strategically file in jurisdictions where they know they’re almost certain to get friendly rulings in service of national policy goals.
That and other sensible rules could limit the abuse of nationwide injunctions; simply striking down the general ability for district judges to put a stop to unlawful government practices that are in most cases already ongoing is not the proper solution and certainly has nothing to do with the “judicial overreach“ that Trump and his acolytes are constantly crowing about.
