Franke: Nationwide Injunctions
by Mark Franke
Hardly a day goes by without another federal judge somewhere issuing a nationwide injunction against something the Trump administration has ordered. Ask anyone for an opinion and you will hear it, and no doubt it will be partisan. Those who are anti-Trump will applaud the injunctions as necessary to preserve democracy against authoritarianism and those who are pro-Trump will call for constraint on a judiciary bent on overturning the democratic will as determined by the last election.
What will be missing from both sides’ complaints is a consideration of the legal and constitutional issues involved, issues much more important than who won the last election. The principle at stake is the constitutional balance of power as constructed by the Founding Fathers in the language of the Constitution.
My monthly Socratic discussion group took up this debate at our last meeting. Things seemed complicated when we started but by the time our two-hour limit was reached, we had distilled things to a simple question and were able to develop an answer.
Our methodology is for a member to propose the topic, what we call a provocation, and do the requisite research prior to the meeting. The provocation is a debatable statement accompanied by several discussion questions and a short list of recommended readings.
We began with historical data on the number of nationwide injunctions issued during recent presidencies and the partisan alignment of the issuing judges. Prior to the first Trump administration, these injunctions were rare and showed no obvious partisanship on behalf of the issuing judges. Since then nearly all injunctions issued against the two Trump administrations have been by Democrat-appointed judges and all those against the Biden administration by Republican-appointed judges.
There was also a quantitative imbalance between Trump and Biden, something conservative and Republican commentators have called lawfare by Democrats. Is this a carefully constructed strategy of opposition or just a sign of our increasingly litigious society?
Politics aside, the constitutional issue is the authority of the judiciary to declare acts of the legislative and executive branches unconstitutional and enjoin them from being enacted. The principle is called judicial review and generally attributed to Chief Justice John Marshall in his handling of the Marbury v. Madison court case in 1803.
Our research showed that the principle is much older than that. It had been applied by state courts prior to the War for Independence and the topic was subject to robust debate at the Constitutional Convention. Federalist Paper 78 addresses the importance of judicial review to check the power of the other two branches.
The historicity of judicial review being settled, we moved to its practical application. The hot button issue of our day is whether an individual district judge can deliver a nationwide injunction from a single case. Given the data about party politics as evidenced with the data cited above, it is obvious that there is forum shopping going on; plaintiffs look for a judge appointed by their party to get a favorable ruling. One of our number who is a retired attorney sees this as harmful to the reputation of the judiciary, harm that is unwarranted. He called these “fringe” judges and not representative of the majority.
Congress has the constitutional authority to establish the judiciary but not to regulate its decision-making. There are calls for Congress to act to prevent nationwide injunctions but sometimes these may be necessary to prevent irreparable harm. Then, there is the inconvenient truth that Congress is even more dysfunctional than the worst of the federal courts so looking to it offers little hope for a wise solution being enacted.
Can the courts reform themselves? The Supreme Court has substantial authority to direct its own affairs and that of the entire federal judiciary. It can issue procedural rules and give specific instructions to lower courts in its appeals role. Such an approach will protect the independence of this coequal branch of government.
The Harvard Law Review recently published a well thought out proposal for reforming how federal courts could handle requests for nationwide injunctive relief. These cases would be consolidated to the District of Columbia district court, which is experienced in this sort of thing and has a reputation for fairness in its rulings.
The process could be further depoliticized through the creation of a special panel of judges for each case, composed equally of judges appointed by the two parties. Such a procedure should restore credibility to the judiciary and ensure consistent and fair results.
Democracy with its independent judiciary can be a messy thing but George Will has called the courts “the epicenter of constitutional government.” They have served our democracy well in the past and will continue to in the future . . . that is, if We the People let them.
Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.
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