WASHINGTON (AP) — The Supreme Court seems to be in no hurry to address an issue that has irritated Republican and Democratic administrations alike: the ability of a single judge to block a nationwide policy.
Federal judges responding to a flurry of lawsuits have stopped or slowed one Trump administration action after another, from efforts to restrict birthright citizenship to freezes on domestic and international spending.
While several justices have expressed concern about the use of so-called nationwide, or universal, injunctions, the high court has sidestepped multiple requests to do something about them.
The latest plea comes in the form of an emergency appeal the Justice Department filed with the court last week, seeking to narrow orders issued by judges in Maryland, Massachusetts and Washington that prohibit the nationwide enforcement of an executive order signed by President Donald Trump to restrict birthright citizenship.
The justices usually order the other side in an emergency appeal to respond in a few days or a week. But in this case, they have set a deadline of April 4, without offering any explanation.
What are nationwide, or universal, injunctions?
The standard practice in U.S. courts is that a judge issues an order that gives only the people who sued what they want. As the name suggests, nationwide injunctions go well beyond the parties to a case and apply everywhere and to everyone who might be affected.
There is a scholarly dispute over when the first nationwide injunctions were issued, but there is no disagreement that they started increasing in frequency during the Obama administration and have only grown in number since.
One reason for the growth in these broad orders may be a corresponding increase in executive action.
In 2015, for instance, a judge in Texas blocked President Barack Obama’s program to protect immigrant parents of U.S. children after Congress failed to pass an immigration overhaul. Shortly after Trump took office for the first time, judges initially shut down his imposition of travel restrictions on immigrants from seven Muslim-majority countries.
Shopping for judges to get a result
The Trump administration’s acting top Supreme Court lawyer, Sarah Harris, described one major flaw in these court orders with universal effect. “Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” Harris wrote in the emergency appeal over birthright citizenship.
Her predecessor in the Biden administration, Solicitor General Elizabeth Prelogar, struck a similar theme in high court filings last year, noting that “the government must prevail in every suit to keep its policy in force, but plaintiffs can block a federal statute or regulation nationwide with just a single lower-court victory.”
The issue has been exacerbated by the tendency of conservatives to seek out like-minded judges in Texas, Louisiana and Missouri, while liberals file suit in friendlier courthouses in Massachusetts, California and New York.
“You look at something like that and you think, that can’t be right,” Justice Elena Kagan said in 2022. “In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas. It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
Are nationwide injunctions even legal?
At least two justices, Clarence Thomas and Neil Gorsuch have made clear they think the answer is no. Several others have suggested the injunctions raise questions the court might someday answer.
Samuel Bray, a professor at Notre Dame Law School, is a leading voice arguing that judges have no power to issue nationwide injunctions. The limits on a judge’s power remain even in the face of an obviously unconstitutional policy, Bray said.
That restraint applies even in the birthright citizenship cases, Bray wrote on the Divided Argument blog. “Any illegal act by the president should be rejected by the federal courts. But they should reject it as courts do—one case at a time, with remedies for the parties,” he wrote, citing Kagan’s remarks.
People challenging the executive order could file a class-action lawsuit, which would have broader application. Indeed, an American Civil Liberties Union lawyer representing immigration advocates and individuals in a case in New Hampshire told a judge that the ACLU was considering a nationwide class action.
But the group’s lawyer, Cody Wofsy, pointed out what might happen in the interim, if the Supreme Court agrees to the administration’s request. “Children would be exposed to all the harms we’ve talked about immediately,” Wofsy said.
Amanda Frost, a professor at the University of Virginia School of Law, thinks the Supreme Court could be open to addressing the broader issue at some point because judges impose nationwide injunctions too often.
But birthright citizenship would be a terrible issue on which to do so, Frost said.
“It would create a burden on people at a moment in their lives when they’re entering into the labor delivery room…And then you create a patchwork across the United States, incentivizing pregnant women to leave for a state that recognizes birthright citizenship,” she said.
She added: “You think about the chaos that would play out.”
