The media is abuzz with rumors that the Supreme Court will rule on whether to revive President Trump’s revised travel ban as early as this week.
Just two weeks ago, the Fourth Circuit Court of Appeals upheld the Maryland district court’s preliminary injunction barring the ban from taking effect. The Trump administration responded swiftly, petitioning the Supreme Court and requesting an immediate stay of the Fourth Circuit’s decision.
As of yet, public attention has focused on rulings regarding the merits of the arguments challenging the travel ban. These decisions represent egregious exercises of judicial overreach in their own right. Equally troubling, however, is an emerging trend embraced by these cases, one that adds a powerful new weapon to the activist judge’s arsenal: the national injunction.
Injunctions are a type of court order requiring a party to take or refrain from taking a specific action. Parties may seek what is known as a preliminary injunction to maintain the status quo before matters are fully litigated. In the travel ban case, for instance, the plaintiffs sought, and the district court issued, a preliminary injunction prohibiting the Trump administration from enforcing the President’s revised travel ban until the matter is settled in court. This all took place with little time for the parties to prepare, without the benefit of discovery, and without an opportunity for the parties to fully present their side of the case.
The preliminary injunction is considered an extraordinary remedy, largely because its consequences can be swift and dramatic. Yet district court judges have begun issuing, with increasing frequency, preliminary injunctions against the federal government. These “national injunctions,” as they’ve come to be called, pose a very real threat to the rule of law.
For one, the national injunction permits judges sitting on the 94 district courts scattered across the country to wield an astonishing degree of power. Indeed, thanks to the national injunction, a single, activist judge seated on a tiny, distant island in the Pacific managed to halt an executive order issued by the President of the United States.
In their newly-rediscovered reverence for constitutional checks and balances, progressives have labeled such orders a “check” on executive power. Yet a check that has no grounding in a judge’s authority to adjudicate cases for the parties involved is no check at all. And because activist judges already have little regard for existing restraints on their authority, it stands to reason that they will not exercise such power in moderation.
Another disturbing aspect of the national injunction is its scope. Injunctions issued by activist judges do cause damage. Yet, absent the national injunction, the direct harm from these orders is largely limited to the parties themselves. Even at the appellate level, the federal system effectively quarantines activist precedent to a given jurisdiction. Yet by issuing a national injunction against the federal government, judges assume the authority to grant remedies beyond the parties directly involved in litigation. Hence, if they so desire, activist judges can unleash their misguided rulings upon the entire American population.
This new twist on the preliminary injunction amplifies the problem of judicial activism. What’s more, the growing ubiquity of what was once considered an extraordinary remedy is an especially troubling development. Criticism of the national injunction is beginning to gain traction in scholarly circles.
If Americans wish to preserve our constitutional system and the rule of law, they can no longer ignore the threat posed by this unlawful twist on injunctive relief.
Christina Pesavento is a legal affairs fellow at The Committee for Justice. She previously served as a law clerk with the U.S. Senate Judiciary Committee and was President of the Federalist Society chapter at the American University Washington College of Law.