Demonstrators outside the U.S. Supreme Court in Washington during oral arguments in November at the DACA cases. Credit: Diego M. Radzinschi / ALM

The Trump administration's U.S. Justice Department failed twice in the latest U.S. Supreme Court term to persuade the justices to curb the power of federal judges to issue nationwide injunctions.

The Justice Department has been waging a fight in courts and before the public against district courts' use of these injunctions since the beginning of the Trump administration. In the administration's first two years, the department reported, courts issued 25 nationwide injunctions or restraining orders against administration policies.

U.S. Attorneys General Jeff Sessions and William Barr have delivered public speeches condemning the practice and urging courts to limit the injunctions only to the parties before them. Supporters have argued nationwide injunctions are valid tools allowing courts broadly to pause policies that run afoul of administrative rules and constitutional rights.

The issue was teed up by the Justice Department in the Obamacare cases Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, in which the U.S. Court of Appeals for the Third Circuit upheld a nationwide injunction against expanded employer exemptions from providing contraceptive health insurance. And in a trio of cases, joined under Dept. of Homeland Security v. Regents, two district courts had issued universal injunctions barring the Trump administration's plan to end the delayed deportation of so-called Dreamers.

The Justice Department won the Obamacare case, and lost the DACA dispute, but in both the court did not confront the merits of nationwide injunctions. At least two justices in recent years had called on the court to address, and dial back, the ability of judges to block a rule nationally.

The justices had faced, but did not address, the issue in the Trump administration's travel ban case, Trump v. Hawaii, in 2018. Justice Clarence Thomas was the first to raise questions about the injunctions' validity. He called the injunctions "legally and historically dubious." In January, Justice Neil Gorsuch, joined by Thomas, criticized the practice in Dept. of Homeland Security v. New York. In that case, the administration sought, and was granted, a stay of an injunction against the so-called public charge immigration regulation.

"Whether framed as injunctions of 'nationwide,' 'universal,' or 'cosmic' scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case," Gorsuch wrote in January.

In her dissent in the contraceptive insurance decision, Justice Ruth Bader Ginsburg defended the nationwide injunction, writing in a footnote: "Although the court does not reach the issue, the district court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action."

The lack of action so far by the justices on the issue of nationwide injunctions stems likely from the fact they haven't had the type of cases that would allow them to get involved, said Howard Wasserman of Florida International University School of Law, who has criticized global injunctions.

In the Dreamers case, Wasserman said, the majority ruled that the rescission violated the Administration Procedure Act. As Chief Justice John Roberts Jr. wrote in a footnote, the nature of the court's ruling meant it wasn't necessary for the justices to examine the propriety of the nationwide injunctions.

And in the contraception insurance case, Wasserman said, the court upheld the administration's regulations, and so there was no reason to examine the injunction.

"They just haven't had a case that is straight up agreeing that some law or regulation is constitutionally invalid and now they have to address the scope of the injunction," Wasserman said.

Amanda Frost of American University Washington College of Law, who has written in favor of nationwide injunctions, said she thinks there may be more to the justices' lack of action.

"Although a few justices are on the warpath against nationwide injunctions, the rest realize that the issue is very complicated, and could end up disempowering courts in a moment when the executive is often making sweeping changes to the law affecting millions through executive orders," Frost said.

The justices also might think the Supreme Court "is not the best institution to address this issue, because their decisions effectively are nationwide injunctions because they set binding precedent for the nation. So the issue of nationwide injunctions is quasi-dicta when it reaches the Supreme Court."

Frost noted that lower courts recently have become "more thoughtful" in issuing these injunctions, "which might be a reason for the Supreme Court to hold off deciding the issue but rather allow the law to continue to develop among the lower courts."

In one recent case, a Ninth Circuit panel scaled back the nationwide scope of a district court injunction against Justice Department funding conditions on grants to so-called sanctuary cities, which have laws restricting their assistance to federal enforcement of immigration laws. The panel limited its reach to California's geographic boundaries.

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"Although San Francisco offered evidence that some jurisdictions across the country might welcome an injunction against the Challenged Conditions, nothing in the record or in the nature of the claims suggests that the relief granted by the district court needs to be extended to state and local governments outside of California, not parties to this litigation, in order to fully shield plaintiffs," Judge Richard Clifton wrote.

Universal injunctions have been defended in several trial court cases challenging the Trump administration's move, which was now abandoned Tuesday, to require foreign students to take in-person classes or lose their visas.

"Immediate, system-wide relief is necessary," Jenner & Block partner Matthew Price, representing 59 colleges and universities as friends-of-the-court in the Boston case, said in a court filing. "First, immigration law is quintessentially federal; it should be applied evenly throughout the nation. Second, narrower relief would spur duplicative emergency litigation in every district court or would require hundreds of colleges and universities to join this suit as intervenors."

 

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'Reeks of Bad Faith': DC Judge Scolds Trump DOJ's Drive to Restrict Injunctions

U.S. Appeals Judge: Don't End Nationwide Injunctions. (But Here's a Plan for Them.)