Heath: Nationwide Injunctions
By Judge Dan Heath
A current topic of debate on news shows and social media is the issuance of “nationwide” or “universal” injunctions against President Donald Trump on issues including immigrant deportation, the withholding of Congressional appropriations to universities for life-saving research, and more. The recent deportation case ruling that ordered Trump to stop the deportation of immigrants to El Salvador brought howls from Trump that Judge Boasberg was a “lunatic” who “ought to be impeached.” Other Republicans assert that Judges have no authority to review executive action or acts of Congress.
The History of Judicial Review
British Courts reviewed acts of colonial legislatures to make certain they did not run afoul of British Charters issued by the King. During our Constitutional Convention, a delegate from North Carolina complained bitterly in a letter to a North Carolina attorney when the North Carolina Supreme Court held an act of that state’s legislature in violation of that state’s constitution. The attorney replied that the North Carolina Constitution was the fundamental law of that state and when legislatures run afoul of the state constitution the judiciary “…must take notice of it” and maintain the rightful, supreme position of the state Constitution.
Finally, after the Constitutional Convention favorably reported its newly crafted Constitution to the states for ratification (without a word about judicial review in it), “Brutus” wrote in New York newspapers against the power of judicial review by courts. Alexander Hamilton responded with Federalist No. 78, that the judicial branch had the duty to protect the fundamental law of the Constitution, preserving the will of the people. (See, Webb, “The Lost History of Judicial Review,” Notre Dame Law Review, Vol. 100, Art. 5.) Without judicial review, a president could become a King, something the framers of our new Constitution were desperate to prevent. Ultimately, in 1803, Chief Justice John Marshall, in his opinion in Marbury vs. Madison, ruled that the federal judiciary had the right of judicial review in holding Congress’ “Judiciary Act of 1789” unconstitutional.
Judicial Restraint
But our federal judiciary placed self-imposed limits on its exercise of judicial review with standards initially requiring “clear error” in the legislative acts, and a presumption that the act is valid. By the 1930’s, with the depression and the rise of the federal administrative bureaucracy (think “New Deal”) and groups pressing for the exercise of their constitutional rights, the U. S. Supreme Court set out new standards of review including, the “rational basis test, the intermediate scrutiny test, and the strict scrutiny test” in an effort to make certain it too remained within the limits of its power. Put differently, it has traditionally been a difficult challenge to obtain injunctive relief in federal courts.
Forum-Shopping
With the rise in the number of executive orders issued by presidents in the past 25 years, we began to see a rise in “forum-shopping” in which attorneys sought out judges appointed by presidents aligned with their client’s political beliefs and party. George W. Bush faced only six injunctions, three of which were from judges appointed by Democratic Presidents and three by Republican-appointed judges. Meanwhile, during the two terms of the Obama administrations, 12 injunctions were issued against him with seven of them by Republican appointees (58.3 percent). The first Trump administration, saw 64 injunctions issued against it, 59 by Democrat appointees (92.2 percent). (Note: Trump issued some 220 Executive Orders in his first term according to the Federal Register.) Biden had 14 injunctions placed against him with all 14 issued by federal judges appointed by Republican Presidents (100 percent). All this understandably has greatly “politicized” our federal judiciary, harming the federal judiciary’s reputation for fairness. (See District Court Reform: Nationwide Injunctions, 137 Harv. L. Rev. 1701. Chap. 4, April 2024.)
Reforms
Recently, the Republican-controlled House passed Rep. Darrell Issa’s “No Rogue Judge’s Act,” HB 1562, which only permits the issuance of injunctions for parties to federal district court litigation, and not to “non-parties.” According to an April 10, 2024, press release by Representative Issa’s office, the bill, as amended, “[c]reates an exception for certified class action lawsuits and establishes a three-judge appeals process that can be appealed directly to the Supreme Court.” Other approaches include a national lottery to appoint a judge for such actions, and yet another consolidates all district court similar litigation into the D.C. Circuit Court, which would then randomly appoint one of its District Court Judges to hear the case. Regardless of the reform chosen, national injunctive relief, if made use of with forum-shopping eliminated, remains the only viable check upon the unconstitutional acts of Congress or the abuse of action by the president.
Dan Heath, an adjunct scholar of the Indiana Policy Review Foundation, is retired from the Allen County Superior Court. He presented this research to a Fort Wayne discussion group that practices the Socratic method of inquiry.
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