A Welcome Start on Nationwide Injunctions

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The Supreme Court in Washington, D.C.
A family rides bikes outside the Supreme Court in Washington, D.C. June 29, 2024.(Kevin Mohatt/Reuters)

The Founding Fathers designed Congress to be the first branch of the federal government. The decline of its exercise of legislative power in recent decades has created a vacuum, leaving the executive and judicial branches to war over which gets to arrogate to itself more of the powers that belong properly to the legislature.

Friday, the Supreme Court took a welcome first step toward reining in the imperial ambitions of federal district judges. The Court, in Trump v. CASA, Inc., bypassed for now the underlying issue in the case — Donald Trump’s effort to reopen the constitutional status of birthright citizenship — and ruled that federal district judges have no inherent power to issue nationwide injunctions. Instead, they may issue orders that apply only to the parties properly before them in a case.

This is a good start. But it does not solve the problem. Only Congress can do so.

Justice Amy Coney Barrett’s opinion for the familiar 6-3 conservative majority grounded its decision firmly in first principles and Founding-era historical practices. Judges traditionally could resolve only cases between the parties to a lawsuit. Exceptions to this rule were narrow. The limits to injunctions were not geographic so much as a function of how the adversarial legal system works. Those background assumptions limit the inherent powers of federal courts under the Constitution.

This does not mean that courts can never rein in a rogue president or administrative agency. Where states have standing to file lawsuits, they can band together and get relief across large areas of the country. Where many individuals are similarly affected by a policy, they can file a class action. Where Congress empowers courts to make particular rulings, they can do so; for example, as Justice Brett Kavanaugh observed in his concurring opinion, the Administrative Procedure Act still arms judges to “set aside” unlawful agency action. Finally, when a case reaches the Supreme Court, its decisions are binding nationwide on every case involving the same issue.

The CASA decision does, however, limit the powers of a single district judge to issue immediate injunctions that reward speed in the race to the most favorable courthouse over the sort of reasoned, deliberative, rule-based and precedent-based decision-making that is supposed to distinguish judges from the political branches. Certifying class actions or appealing cases to the Supreme Court takes time and requires compliance with rules. That’s a good thing.

The justices are rightly concerned at how this process has distorted their own docket as well as bringing the courts into increasingly open conflict with the Trump administration. Barrett’s opinion for the Court warned of the dangers of an unconstrained judiciary. Kavanaugh stressed that the Court needs to remain active in taking cases and issuing stays in order to avoid letting erroneous injunctions remain in place for years on end. Justice Samuel Alito warned in his own concurrence against the CASA opinion being undermined by distortions of the class action and standing rules in future cases. The dissents by Justices Sonia Sotomayor and Ketanji Brown Jackson identified some real hazards of gaps in the power of courts to restrain an imperial presidency, but they were also unduly contemptuous of the need for courts to follow what Jackson scornfully called “legalese.” As the majority responded, Jackson “decries an imperial Executive while embracing an imperial Judiciary.”

Congress, and only Congress, can make rules that look forward and allow for orderly judicial resolution of legal disputes over executive power. Congress can decide where those disputes are heard, putting an end to forum-shopping and perhaps creating multi-judge panels and expedited appeals for cases that seek a nationwide ruling on presidential or agency action. Precisely because this issue recurs under presidents of both parties, it ought to engage both parties. Courts and the executive alike are more easily constrained by rules when some care is placed into writing them.

Finally, while its decision in CASA dealt only with the injunctive powers of courts, the Court should act on its own principles and return as swiftly as possible to resolve Trump’s challenge to constitutional birthright citizenship. The issue is important, the question is legal in nature, and its effects are national. While the Court sent the case back down for further proceedings on the interim injunction, it should not delay in settling the meaning of the citizenship clause of the 14th Amendment. If it answers that question in a way that the American people think imprudent, that’s why we still have our own lawmaking power to amend the Constitution.