Universal Injunctions Are a Constitutional Crisis
In so doing, universal injunctions create a constitutional crisis implicating both the power of the judiciary branch and the separation of powers. They transcend any of the contentious issues over which they have been employed, from the “travel ban” to Deferred Action for Childhood Arrivals (DACA) to allowing transgender people to serve in the military. Their usage in cases affecting national security and foreign policy could endanger Americans’ life and limb by supplanting a judge’s wisdom for that of the president, in an area in which a judge lacks expertise and presidents are supposed to enjoy wide latitude.
Universal injunctions were not always a fact of political life. As former attorney general Jeff Sessions argued to the Eighth Circuit Judicial Conference, nationwide injunctions were never employed for the first 175 years of our republic. But under the Trump presidency, lawfare by universal injunction has been a Resistance trump card. Such injunctions were used 22 times within the president’s first two years in office. While President Trump’s predecessors were similarly stymied on select occasions, they were not nearly challenged at such a rapid rate, or on such frequently ridiculous grounds.
In his speech, Sessions challenged universal injunctions primarily because of separation of powers and the rule of law, executive authority and representative government, and class certification. Sessions argued that “Plaintiffs against the government only need to win once to stop a national law or policy—whereas the government needs to run the table to carry out its policies,” which of course could take years, leaving the executive and legislative branches twisting in the wind, and perhaps outlasting those who were originally party to the case.
thefederalist.com
In so doing, universal injunctions create a constitutional crisis implicating both the power of the judiciary branch and the separation of powers. They transcend any of the contentious issues over which they have been employed, from the “travel ban” to Deferred Action for Childhood Arrivals (DACA) to allowing transgender people to serve in the military. Their usage in cases affecting national security and foreign policy could endanger Americans’ life and limb by supplanting a judge’s wisdom for that of the president, in an area in which a judge lacks expertise and presidents are supposed to enjoy wide latitude.
Universal injunctions were not always a fact of political life. As former attorney general Jeff Sessions argued to the Eighth Circuit Judicial Conference, nationwide injunctions were never employed for the first 175 years of our republic. But under the Trump presidency, lawfare by universal injunction has been a Resistance trump card. Such injunctions were used 22 times within the president’s first two years in office. While President Trump’s predecessors were similarly stymied on select occasions, they were not nearly challenged at such a rapid rate, or on such frequently ridiculous grounds.
In his speech, Sessions challenged universal injunctions primarily because of separation of powers and the rule of law, executive authority and representative government, and class certification. Sessions argued that “Plaintiffs against the government only need to win once to stop a national law or policy—whereas the government needs to run the table to carry out its policies,” which of course could take years, leaving the executive and legislative branches twisting in the wind, and perhaps outlasting those who were originally party to the case.
Stop Activists From Controlling The Country With Universal Injunctions
So long as universal injunctions exist, plaintiffs will be able to impose their policy preferences on the entire country, if they find a willing judge.
thefederalist.com