Nationwide Injunctions: The Judicial Crisis That Could Break the Constitution
Madison and Jefferson Warned Against Judicial Overreach
As a Constitutional originalist, I urge the U.S. Supreme Court to be bold and put an end to the growing plague of plaintiffs "judge shopping" for complicit federal judges who issue sweeping national injunctions. It undermines the rule of law, erodes judicial neutrality, and reverses the balance of powers our Founders established. When plaintiffs strategically file suits in ideologically homogeneous districts, they exploit the judicial process for political purposes, often rendering duly enacted policies ineffective. The Court must intervene and limit this abuse to preserve order.
National injunctions—judicial fiats that bar federal policies nationwide—have reached record levels. These rulings, often issued by individual district judges, grant lower courts the power to shut down entire administrations. This is not what the Framers intended when they established a judiciary to interpret, not make law. The Constitution places policymaking authority in the elected branches of government, yet national injunctions allow unelected judges to override the people's will. This distorts the separation of powers and threatens democratic governance.
The Founders themselves cautioned against the possibility of one branch being given too much power as James Madison wrote in Federalist No. 47, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands. may justly be pronounced the very definition of tyranny." He noted that maintaining the separation of powers was crucial to preserving liberty. Madison developed this thread further in Federalist No. 51, warning each branch against encroachments by the others.
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands. may justly be pronounced the very definition of tyranny." - James Madison, Federalist No. 47
Likewise, Thomas Jefferson warned against an unbridled judiciary threatening liberty, noting in a letter in 1819 that judicial hegemony would make the Constitution "a mere thing of wax in the hands of the judiciary." These are words emphasizing the reality that sole-handed judicial decrees imposing alterations on national policy are the opposite of what was envisioned by our Constitution.
The phenomenon of injunctions against the Trump administration is manifesting this crisis. Federal judges, who are predominantly appointed by Republicans, have issued numerous national injunctions against consequential executive actions. For example, in Regents of the University of California v. DHS (2018), a district court judge appointed by President Obama issued a nationwide injunction to preserve the Deferred Action for Childhood Arrivals (DACA) program, halting the Trump administration's decision to end it. Trump's travel ban was subject to a nationwide injunction by a district court judge in Hawaii during his first term, an Obama appointee, despite the policy being within the president's constitutional authority over national security. Facts indicate that over 80% of nationwide injunctions issued against Trump policy were from Democratic-appointed judges, and the pattern is one of clear ideological bias.
Republican-appointed judges are not immune to this trend. Under the Biden administration, Republican-initiated challenges mounted to create nationwide injunctions by Fifth Circuit judges. Yet, the disproportionate number of injunctions issued by Democratic-appointed judges against Trump policies indicates an issue with the system. Plaintiffs exploit ideologically leaning districts and know that judges in circuits like the Ninth will tend to rule in their favor. This kind of "judge shopping" undermines public faith in the judiciary's impartiality.
The Supreme Court has begun addressing this matter. In one recent case, the Court put federal judge orders requiring government action on hold, showing concern regarding the reach of lower court authority. Federal appeals courts or the Supreme Court are better positioned to issue sweeping injunctions, given their wider jurisdiction, Justice Samuel Alito explained. But the Court must go further, establishing clear guidelines to limit when and how district judges can grant national injunctions. One solution is to require plaintiffs to demonstrate a nationwide injury that justifies such relief rather than allowing localized judges to enjoin policies with nationwide effects.
Legislators and law scholars have proposed various reforms. Observers of the Supreme Court have called for the reinstatement of the three-judge district court requirement in suits seeking relief nationwide. This move would necessitate a broader judicial consensus before terminating federal policy across the nation. Similarly, a Harvard Law Review article proposes reinstating this requirement as a check on the power of a single judge in lower courts.
There has also been a movement within the judiciary itself. In March 2024, the U.S. federal judiciary voted to randomize judge assignments in cases challenging federal or state law. According to Reuters, this reform will help reduce strategic filings and enhance judicial neutrality.
Others in Congress have even proposed bills that would limit the scope of injunctions, such as prohibiting relief from extending beyond the parties directly involved in a case. While these legislative fixes could be intriguing, they are unlikely to pass in today's highly polarized Capitol Hill.
Ultimately, the Supreme Court must lead the way. By defining the proper scope of district court authority and requiring rigorous standards for nationwide relief, the Court can rein in judicial overreach and protect the constitutional order envisioned by the Founders.