The debate over nationwide injunctions [ SCOTUSBlog ]

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From https://www.scotusblog.com/2018/02/academic-highlight-debate-nationwide-injunctions/

Academic highlight: The debate over nationwide injunctions

Posted Thu, February 1st, 2018 10:21 am by Amanda Frost

When, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders — often referred to as “nationwide injunctions” — with increasing frequency over the past decade. During President Barack Obama’s administration, district courts issued such injunctions to halt policies granting deferred action to undocumented immigrants and accommodating transgender students in public schools; more recently, injunctions like these temporarily put a stop to President Donald Trump’s travel ban and blocked his rescission of deferred action for undocumented immigrants brought to the United States as children. Congress is considering legislation to regulate the practice, and some speculate that the Supreme Court may soon weigh in as well. In the meantime, legal scholars are debating the constitutional, systemic and policy concerns implicated by nationwide injunctions at conferences, during congressional hearings and in the pages of law reviews.

Legal scholars generally agree on few major points. First, the term “nationwide injunction” is misleading. As professor Howard Wasserman suggests, a better name might be “universal injunction,” because the debate is about whether injunctions can require the federal government to cease enforcing a law against nonparties, not whether the injunctions should apply nationwide. Second, these injunctions are a relatively new phenomenon and have been used with increasing frequency over the last decade. Third, nationwide injunctions are nonpartisan — they have been sought by individuals on both sides of the political spectrum to put a stop to policies they oppose. Fourth, nationwide injunctions come with costs that courts should consider carefully before imposing them.

From that common ground, scholars stake out different positions. Professors Samuel Bray, Michael Morley and Wasserman oppose nationwide injunctions in all or most cases. These scholars argue that such injunctions encourage forum shopping and politicize the judiciary, allowing plaintiffs to hand pick a single district-court judge who can then set policy for the nation. (It was no coincidence that Obama’s policies were challenged in the “red state” of Texas, and Trump’s in the “blue states” of California, Hawaii and Maryland.) They observe that nationwide injunctions are inconsistent with a judicial system that denies precedential value to district court decisions and typically requires named plaintiffs to meet class-certification requirements before obtaining relief on a collective basis. They also point out that such rulings put pressure on the Supreme Court to decide cases before they have been thoroughly debated in the lower courts. For all these reasons, these critics argue, courts should enjoin defendants from enforcing a law only against the plaintiffs in a particular case.


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[Farmer-Rick]

1. This is what comes of the courts grabbing the power to determine what is constitutional or not

It is their job to read and interpret the law. It is Not their job to decide if the law should even exist or not. This is the slippery slope the Supremes put us on when we allowed them to determine constitutionality when it is Not in the constitution.

If they were just interpreting the law, they would rule. But because they are deciding if it is a good or bad law, a constitutional or unconstitutional law, they have to halt implementation of a law because it could be bad.

That said, the president has been given way too much leaway to distort, ignore or manipulate laws at his whim by the courts. It's as if they are partners in crime.