An empty podium at the U.S. Court of Appeals for the Ninth Circuit. (Photo: Jason Doiy/ALM)

A pair of federal appeals courts last week issued diverging rulings on national injunctions blocking President Donald Trump's policies, highlighting the ways circuit courts are confronting the nationwide orders issued by trial judges.

The U.S. Court of Appeals for the Second Circuit on Wednesday rejected the Justice Department's request to lift a stay on a district court's national ruling blocking the Trump administration's "public charge" rule, which would make it more difficult for immigrants who require public assistance to obtain legal status.

Hours later, the U.S. Court of Appeals for the Fifth Circuit, in a divided ruling, lifted a district court injunction blocking the administration from using certain military funds to build a border wall.

The use of the national orders has exploded in recent years under both the Obama and Trump administrations. But Trump's wielding of executive power, particularly in enacting immigration policies, has triggered a tidal wave of the orders from district courts.

That means appeals judges are repeatedly confronted with deciding whether a policy should be paused as the litigation moves forward. And for a president running for reelection whose personal legal strategy leans heavily on delay tactics, that stay ruling can make all the difference.

Zachary Clopton, a professor at Northwestern Law, said cases involving injunctions are often high-profile matters that have a national or international impact.

"Part of that new attention has brought increased scrutiny on these injunctions and in particular conservative judges and justices have started to object to the whole practice of issuing injunctions that protect nonparties, in ways that even those same judges and justices have not raised objections before this recent period," Clopton said.

The Second Circuit's ruling on the public charge injunction split with the U.S. Courts of Appeals for the Fourth Circuit and the Ninth Circuit, meaning the New York-based appeals court's order is the only one halting the policy nationwide.

The three-judge panel at the Second Circuit offered few details in its one-page order keeping the stay, instead suggesting that the merits panel of the court could pick up the issue if it wanted.

The Fifth Circuit, in its border wall ruling, also didn't provide much in terms of reasoning for throwing out the stay. They pointed to the U.S. Supreme Court agreeing to lift an injunction in a similar lawsuit, and said there's a "substantial likelihood" the parties—El Paso County and the Border Network for Human Rights—lack standing in the case.

In a dissenting opinion, Judge Stephen Higginson wrote "that the government presently has shown either a likelihood of success on the merits or irreparable harm in the absence of a stay."

This isn't the first time members of a circuit court panel have publicly squabbled over whether a lower court's injunction should stay in place. Judges on the Ninth Circuit publicly split in August over a national order on asylum policies.

Two judges on the panel said that while they didn't think the Justice Department had made the showing needed to stay the ruling, they also believed "the nationwide scope of the injunction is not supported by the record as it stands." And they narrowed the reach of the order to the geographic bounds of the Ninth Circuit.

In his dissent, Senior Judge A. Wallace Tashima said the need for a national order was "obvious." "Should asylum law be administered differently in Texas than in California? These issues and problems illustrate why tinkering with the merits on a limited stay motion record can be risky," he wrote.

It's the kind of action—orders that seek to minimize confusion over policies that are being litigated in multiple courts and have a reach far outside of the plaintiffs in a lawsuit—that defenders of national injunctions have cited in their arguments.

In a 2018 law review article, American University law professor Amanda Frost argued the orders "are sometimes the only practicable method of providing relief and can avoid the cost and confusion of piecemeal injunctions."

"In at least some cases, efficiency and judicial economy support a nationwide injunction over dozens (or more) lawsuits challenging the same practice," Frost wrote.

But other legal scholars have said national injunctions should be thrown out. Samuel Bray, a professor at the University of Notre Dame, has argued that injunctions are relatively recent phenomenon that warp a district court's powers.

Bray's arguments found their way into Justice Clarence Thomas' concurring opinion in the U.S. Supreme Court's ruling upholding Trump's travel ban blocking visitors from several majority-Muslim countries.

"In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so," Thomas wrote.

The Trump administration announced last year that it will take action to eliminate national injunctions. Lawmakers have introduced legislation to end injunctions, and the Trump White House has attacked judges as "unelected" in official statements when they issue such orders.

Exactly how the injunctions can be removed as a tool of a district court is unclear. But some opponents are looking to cases over sanctuary city funding as a potential vehicle to place the issue directly before the Supreme Court.

The U.S. Court of Appeals for the Seventh Circuit is overseeing the case City of Chicago v. Barr, which challenges an executive order that made cities that offered protections to undocumented immigrants ineligible for certain law enforcement grants. Chicago is among the sanctuary cities that sued, and national injunctions were issued in several of the cases.

Steve Vladeck, a law professor at the University of Texas, highlighted the case as a potential way for the Supreme Court to address national injunctions in 2018, when Solicitor General Noel Francisco asked for a partial stay of an injunction in the case. That request was withdrawn when the Seventh Circuit stayed the order.

"Thus, although the government is not challenging the substance of the district court's injunction, it appears willing to use that injunction as a vehicle to challenge the propriety of nationwide injunctions more generally—perhaps more so than in the travel ban or DACA litigation," Vladeck wrote in a post for SCOTUSblog at the time.

"The sanctuary cities litigation does present exactly the national injunctions question that has gotten the attention of lawyers and academics," Clopton, the Northwestern Law professor, said. He added that he wouldn't be surprised if the Supreme Court used that case to address the issue of injunctions.

An injunction over the border wall funding isn't totally off the table either. The American Civil Liberties Union on Friday filed an emergency motion with the Ninth Circuit, asking the court to lift a stay on an injunction blocking the diversion of some military funds for the border wall.

However, with the Supreme Court already hitting pause on another injunction in the case, the prospect of the circuit wanting to take up the matter yet again seems unlikely.