The chief judge for the U.S. Circuit Court of Appeals for the 6th Circuit warned this week against district courts issuing nationwide injunctions, saying they should be “eliminated root and branch.”
Judge Jeffrey Stuart Sutton, a Bush appointee, isn’t the first to criticize the use of national injunctions in which one U.S. district court can halt the national government’s policy in all 50 states.
It’s been a subject of debate in legal circles as the use of nationwide injunctions increased in recent years.
Courts issued several nationwide injunctions during the Obama administration and also against former President Donald Trump’s immigration policies.
“All in all, nationwide injunctions have not been good for the rule of law. Left unchecked, such nationwide injunctions have become a springing easement on the customary deliberative process for dealing with issues of national importance. The sooner they are confined to discrete settings or eliminated root and branch the better,” Judge Sutton wrote in a recent order.
The case that prompted the judge’s critique was brought by three states challenging the Biden administration’s immigration guidance on its removal of illegals. A lower court had blocked the administration from issuing its policy, where it proposed certain priorities for removing illegal immigrants — or mitigating factors like age and length of time in the country.
The states argued that the illegal immigrants could end up being released into the community and become an added burden on the state.
The Cincinnati-based 6th Circuit reversed the lower court and granted the government its request to lift the injunction.
Jude Sutton said the national injunctions incentivize parties to shop around for a favorable court and “short-circuit the decision-making benefits of having different courts weigh in on vexing questions of law.”
Supreme Court Justice Clarence Thomas has also chastised the use of national injunctions. In an opinion related to Mr. Trump’s travel ban, the senior justice said “universal injunctions are legally and historically dubious.”
Justice Thomas has suggested the high court will have to step in and address the growing use of them by lower courts.
A 2018 Justice Department memo also warned against the use of the national injunctions, saying they stretch beyond a judge’s authority. It also noted that historically courts did not use them as a remedy until 1963.
“Scholars have not found a single example of any judge issuing this type of extreme remedy in the first 175 years of the Republic. It took more than 200 years for the first 22 nationwide injunctions to be issued; recently, courts issued 22 in just over one year,” the memo read.
Ilya Shapiro, a judicial nominations expert, said the justices have needed to address the problem for some time.
“The justices need to set standards for when, if ever such judicial orders are appropriate and their review should work,” he said.
Gayle Trotter, a conservative legal analyst, said it was the political left that “weaponized” national injunctions against Mr. Trump.
She said critics of the Supreme Court’s shadow docket, where the justices issue orders and decisions without public oral arguments, should also have concerns about the universal injunctions.
“Anyone wringing their hands about the shadow docket needs to confront the reality of the concomitant rise of nationwide injunctions in recent years, as well as the expansion of the administrative state,” she said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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