This week, Attorney General William Barr joined Vice President Mike Pence in condemning the harrowing recent rise of “nationwide injunctions” as anti-constitutional judicial power grabs that disturb the carefully calibrated separation of powers system that the Constitution’s Framers so sagaciously devised.
In a Tuesday speech to the American Law Institute, Barr went after “improper use of nationwide injunctions against policies of all stripes” and said that the use of the injunctions to block policy gives district courts “unprecedented power.”
“One judge can, in effect, cancel the policy with the stroke of the pen,” he said. “No official in the United States government can exercise that kind of nationwide power, with the sole exception of the President. And the Constitution subjects him to nationwide election, among other constitutional checks, as a prerequisite to wielding that power.” …
He went on to emphasize the magnitude and increase of the injunctions, pointing out that the use of the rulings has increased dramatically since President Trump was inaugurated and contrasted the prevalence of the orders with those under Trump’s Democratic predecessor.
As a factual and historical matter, Barr is completely correct about the anti-constitutional remedy having only recently increased so dramatically in its judicial deployment. A much-discussed 2017 Harvard Law Review article by law professor Samuel Bray surveyed the entire history of the “nationwide injunction” and concluded the following:
Power in the American political system is pervasively divided — through federalism, through the separation of powers, and through the sprawling system of federal courts. A legal question is resolved through patience and the consideration of many minds. Which system is better, if starting from scratch, is a difficult question. The question of which system obtains in the United States is easy to answer: a fragmented, many-minds system. In a system like ours, there is no room for the national injunction.
Pence’s recent rhetoric on the issue closely matched Barr’s. As Conservative Review noted, Pence actually went so far as to vow that the Trump administration would try to challenge the practice in court:
The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them. And it’s imperative that we restore the historic tradition that district judges do not set policy for the whole nation. In the days ahead, our administration will seek opportunities to put this very question before the Supreme Court to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land.
As I noted in a Daily Wire op-ed earlier this month, Supreme Court Justice Clarence Thomas recently excoriated the “nationwide injunction” in no uncertain terms:
Justice Clarence Thomas, likely the most authentically originalist jurist to ever sit on the U.S. Supreme Court, objected to “nationwide injunctions” in a stirring concurrence last year in the “travel ban” case of Trump v. Hawaii. As Thomas observed, no congressional statute expressly grants federal judges the authority to issue “nationwide injunctions” as remedies, and there is similarly no historical Anglo-American tradition of equitable relief that would permit such a broad, all-encompassing remedy. As Thomas wrote, “[t]hese injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.” Furthermore, “[f]or most of our history, courts understood judicial power as fundamentall[y] the power to render judgments in individual cases.”
Constitutionalists ought to unreservedly cheer on the Trump administration’s seemingly systemic assault upon this lawless judicial practice.