A federal judge in California issued a nationwide injunction late Tuesday temporarily stopping the Trump administration from separating children from their parents at the border and ordered that all families already separated be reunited within 30 days.
Thus did the New York Times report on federal district court judge Dana M. Sabraw’s order. What the New York Times and other news outlets chose not to report is there is no authorizing legislation or constitutional provision permitting federal district courts to issue nationwide injunctions.
Nationwide injunctions were once a minor part of federal courts’ body of work. Of late, federal district courts, mostly in liberal jurisdictions, have used nationwide injunctions to hamstring executive action.
Liberal activists seek out liberal judges in liberal locations to implement nationwide liberal policies liberals are unable to legislate. The resistance has willing agents on the bench now, it seems.
But not so fast, resisty judges. As ‘Puter presciently noted at the time, Justice Thomas put lower federal courts on notice, hinting that their use of nationwide injunctions is constitutionally suspect and unlikely to withstand Supreme Court scrutiny.
Justice Thomas, concurring in the Court’s Trump v. Hawaii opinion, wrote:
Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.
I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.
Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018)
If Trump is serious about making America great again, he can start by ignoring nationwide injunctions issued by district courts. It is the executive’s prerogative to ignore unconstitutional acts by both the legislative and judicial branches.
If the resistance doesn’t like it, let them take their case for unlimited nationwide federal district court jurisdiction to Justice Thomas and the rest of the Supreme Court.
Good luck with that.