Q&A – The Use of Nationwide Injections by Federal Judges – Driven By Braman Motorcars
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Today’s Entry: Brian, I have a question and a train of thought that I’d like to hear you comment on. Like you, I feel that federal judges have been overly aggressive in issuing nationwide injunctions against the Trump administration. However, conservatives never complain when they get their way with federal judges with Democrat presidents. Both parties play the same game of shopping for judges to get nationwide injunctions. Shouldn’t you be careful what you wish for?
Bottom Line: Today’s note is in response to my Top 3 Takeaways yesterday in addressing the Supreme Court’s hearing of three cases that could serve to reign in the judicial authority of district court judges. Specifically, the Supreme Court could rule that district court judges don’t have the legal authority to issue “universal” or nationwide injunctions. A good point is raised here. It is true that conservative organizations and politicians do seek friendly courts to attempt to reign in agendas of presidents they don’t agree with politically. In so many words this was brought up in yesterdays Supreme Court hearing. With that said, there are two significant considerations that transcend accepting that premise at face value.
- The premise that the status quo should be maintained
As I’m inclined to say, if the premise of anything is false, anything built on the false premise will fail too. District court judges issuing nationwide injunctions is a false premise. They quite literally preside over a district, yet they’ve asserted the authority that they can issue judicial ruling for the entire country. They quite literally lack that legal authority by virtue of their court’s jurisdiction. That’s a structural matter that needs to be addressed by the Supreme Court independent of any political considerations. The bottom line is that partisan politics shouldn’t impact structural constitutional law considerations.
- That the use of universal injunctions has been equitable
Again, based on the premise I just cited – this is effectively moot in my book, but let’s say that I embraced the premise. Even then this isn’t some kind of political tit-for-tat. Here are the number of universal injuctions issued against presidents over the past 45 years:
- Ronald Reagan: 26 over 8 years
- George H.W. Bush: 1 over 4 years
- Bill Clinton: 2 over eight years
- George W. Bush: 6 injunctions over 8 years
- Barack Obama: 16 injunctions over 8 years
- Donald Trump (First Term): 64 injunctions over 4 years
- Joe Biden: 14 injunctions over 4 years
- Donald Trump (Second Term): 17 injunctions in the first 3+ months
Republican Presidents have been in place for 24+ years during this period with 115 universal injunctions issued against them. Democrat presidents have been in place for 20 years and there have been 32 universal injunctions issued against them.
The use and abuse of universal injunctions by lower courts has been anything but equitable. Over the past 44+ years Republican presidents are three times more likely to have their agendas held up by universal injunctions by lower courts. Notably, greater than 92% of nationwide injunctions have been issued by district court judges appointed by Democrats. Incidentally this holds true when adjusted for the number of executive orders issued as well – meaning that both literally and relatively the issuance of universal injunctions has been exceedingly one-sided. As always there are two sides to stories and one side to facts. Those are the facts.