How National Injunctions Create Constitutional Chaos


PREMO Member
Barr is right to complain. The judiciary—which, it should be pointed out, the Framers envisioned as the weakest branch—has asserted breathtaking and unprecedented control over the policy process. One judge can now effectively cancel a policy with the stroke of a pen. As Barr put it, these injunctions give “a single judge the unprecedented power to render irrelevant the decisions of every other jurisdiction in the country.”

In other words, “one judge in one circuit gets to control the law until the Supreme Court intervenes.”

In practice, this has encouraged plaintiffs to forum shop—to seek the jurisdiction most friendly to their cause. It’s no accident that nearly all of the national injunctions issued against the Trump Administration have come from deep blue states.

This has also resulted in a measure of judicial absurdity. Individual judges have declared that President Trump cannot undo actions by executive order, despite the fact that many of those same actions were created by executive order in the first place. And a judge in one forum can issue an injunction contradicting one issued by a judge in another.