Neil Gorsuch testifies before the Senate Judiciary Committee in 2017. Photo: Diego M. Radzinschi / NLJ

Justice Neil Gorsuch, joined by Justice Clarence Thomas, on Monday sharply criticized the use of nationwide injunctions and urged the U.S. Supreme Court "at the appropriate juncture" to review what they contend are constitutional questions raised by their use.

"This is not normal," Gorsuch said, after describing how federal trial judges around the country were approving or declining to grant injunctions in challenges to a new Trump administration immigration rule that would redefine criteria for who can be deemed to be dependent on federal benefits.

"What in this gamesmanship and chaos can we be proud of?" Gorsuch asked.

The divided Supreme Court—with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan in dissent—on Monday allowed the Trump administration to challenge a New York trial judge's order, while letting the new regulation temporarily take effect. The case is U.S. Department of Homeland Security v. New York.

The debate over the use of nationwide injunctions has been ongoing for more than two years, fueled in large part by trial and appellate judges blocking controversial new Trump administration policies. Former U.S. Attorney General Jeff Sessions and his successor, William Barr, have inveighed publicly against them several times.

It was Thomas who first raised doubts in the Supreme Court about the constitutional and equitable underpinnings of injunctions that thwart the national implementation of a policy. In a concurring opinion in the travel ban case, Trump v. Hawaii, Thomas questioned whether district judges have the authority to issue nationwide injunctions.

"These injunctions did not emerge until a century and a half after the founding," Thomas asserted. "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."

U.S. solicitor general Noel Francisco had asked the justices in the travel ban case to examine nationwide injunctions, but the high court did not take up the issue. Thomas was alone in the high court in his concurrence and in voicing his skepticism until the Gorsuch concurrence.

Gorsuch used Monday's order in the "public charge" immigration case to convey his views on nationwide injunctions.

"As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions," Gorsuch wrote. "Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence."

Defenders of nationwide injunctions contend they are in some cases "the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts," as Amanda Frost of American University Washington College of Law wrote in a 2018 article. She added: "Sometimes anything short of a nationwide injunction would be impossible to administer."

U.S. District Judge Ketanji Brown Jackson in D.C. Photo: Diego M. Radzinschi/ NLJ

Last September, a Washington federal trial judge said the Trump Justice Department's move to restrict nationwide injunctions "reeks of bad faith."

"It reeks of bad faith, demonstrates contempt for the authority that the Constitution's Framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled," U.S. District Judge Ketanji Brown Jackson of the District of Columbia said in a ruling.

A recent law review article from Mila Sohoni, a former Jenner & Block associate who clerked for Judge Judith Rogers on the U.S. Court of Appeals for the D.C. Circuit, pushed back at critics of nationwide injunctions who contend they do not have a long history in the law.

"Injunctions that shielded nonparties formed at least a part of the output of the federal courts as far back as 1913, and that even before then—in the 1890s—the [Supreme] Court understood a lower federal court 'sitting in equity' as empowered to offer a 'comprehensive decree covering the whole ground of controversy' that would 'determine once for all' the legality of a state law for 'the entire community,'" Sohoni wrote.

Read more:

Circuits Split and Judges Squabble as Courts Confront National Injunctions

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

Clarence Thomas, Alone, Asserts National Injunctions Are 'Historically Dubious'

DOJ Policy Head Scolds 'Dogged Determination' to Enjoin Trump Administration

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