Lawmakers’ definition of ‘rogue’ judges depends on which party’s in power

We can all agree, I think, that judges should not step outside their prescribed roles and become activists. The problem is that we tend not to agree on when judges have stepped outside their prescribed roles.

Selective outrage is the name of the game when it comes to nationwide injunctions. When judges halt a federal policy we think is problematic or illegal, we may celebrate the power and utility of an independent judiciary. But when judges pause a policy we support and find positive, we may grumble about judicial overreach and, if we’re in power, even consider ways to curb the power of federal judges.  

Their grumbling about judges who have slowed the implementation of President Donald Trump’s agenda has led House Republicans to introduce a bill to limit the ability of federal judges to issue nationwide injunctions, which prevent the federal government from implementing policies against everyone in the country, not just those who are parties to specific lawsuits. It is no coincidence that the party in power introduced the bill. This will always be what happens — the party in power tries to implement its policies, and where there are roadblocks, it will seek to flatten them. 

During President Barack Obama’s administration, Republicans applauded when federal judges issued nationwide injunctions that enjoined the federal government from implementing an immigration policy called Deferred Action for Parents of Americans, which was designed to at least temporarily block the deportation of certain unauthorized immigrants who had children who were lawful residents or U.S. citizens. During Trump’s first administration, Democrats similarly approved of nationwide injunctions from federal judges that halted the first two iterations of Trump’s so-called travel bans.

Now, during this second Trump administration, federal judges are acting as the last guardrail against a president embracing a broader view of executive authority than we have ever seen before. Judges have issued nationwide injunctions concerning, among other things, birthright citizenship, the firing of federal workers, the use of federal funds for gender-affirming care, a freeze of federal funds used for international aid and diversity, equity and inclusion programs.

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In one corner, we have people, many of them Trump supporters, who are arguing that, now that Trump is in power, nationwide injunctions unduly limit executive authority and represent judicial overreach. In the other corner, we have people, many of them opposed to the president’s agenda, who — whatever their past positions — now contend that nationwide injunctions are necessary to protect us from our political branches’ running roughshod over our Constitution.

Sen. Chuck Grassley, R-Iowa, who introduced a Senate bill to limit nationwide injunctions admitted this week that neither party has been consistent. Grassley said: “Most of us in this room have at various times supported or opposed universal injunctions. My fellow Republicans and I sometimes like them when there’s a Democratic president, and my Democratic colleagues probably like them right now, even though they criticized them a few months ago under President Biden.”

This is absolutely true, but there is something different about our current moment: the sheer volume of Trump’s executive orders.

Obama issued 276 executive orders, during his first term Trump issued 220, and President Joe Biden issued 162. But we are less than 100 days into Trump’s second term, and he has issued 115 such orders. There are more nationwide injunctions in part because there are more executive actions being issued by an administration pushing the boundaries of executive authority. 

This feels like a particularly precarious time to cut back on the power of federal judges. Imagine, for instance, if judges could not issue nationwide injunctions with respect to Trump’s executive order that sought to end birthright citizenship. In that case, you might need parents to challenge that order on a case-by-case basis. In addition, there could conceivably be different rulings from different judges, which would create an untenable patchwork of laws. 

The real question we should ask ourselves is whether we should clip the wings of federal judges regardless of who is in power. We must decide whether nationwide injunctions, and the judge-shopping that they tend to incentivize, is a problem we want to solve regardless of who controls the political branches. The issuance of nationwide injunctions should be rare, but the time to fix this problem is not when we have a president bent on maximizing executive power.

Sen. Chuck Grassley, R-Iowa, who introduced a Senate bill to limit nationwide injunctions admitted this week that neither party has been consistent. Grassley said: “Most of us in this room have at various times supported or opposed universal injunctions. My fellow Republicans and I sometimes like them when there’s a Democratic president, and my Democratic colleagues probably like them right now, even though they criticized them a few months ago under President Biden.”