Jurisprudence

Conservative Judges Keep Doing This Thing They Say They Hate

Republican opposition to nationwide injunctions seems to have evaporated upon Joe Biden’s inauguration.

Joe Biden standing at a lectern in front of an American flag, holding his aviator sunglasses.
President Joe Biden has been repeatedly stymied by nationwide injunctions. BRENDAN SMIALOWSKI/Getty Images

From the start of his presidency, Donald Trump was stymied by nationwide injunctions. Seemingly every time Trump sought to impose a new policy, a federal judge would stop him by issuing an injunction that prohibited enforcement anywhere by anyone. In 2018, Attorney General Jeff Sessions directed Justice Department lawyers to argue in court that these injunctions “exceed the constitutional limitations on judicial power.” His successor, William Barr, declared outright war on nationwide injunctions, condemning them as unconstitutional and “inconsistent with our American legal system.” Trump’s solicitor general, Noel Francisco, urged the Supreme Court to forbid nationwide injunctions, to no avail. Trump himself denounced them. Republican lawmakers sponsored bills to outlaw them. All the while, conservative commentators railed against “resistance judges” who thwarted Trump’s agenda by blocking his policies in full rather than limiting their decisions to the parties before them.

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If you know anything about the conservative legal movement, it should not surprise you to learn that Republicans’ crusade against nationwide injunctions stopped dead in its tracks when Joe Biden entered the White House. Since Jan. 20, 2021, GOP state attorneys general have already sought and received multiple nationwide injunctions against Biden’s policies—all from conservative judges. These orders have hobbled the president’s efforts to pause deportations, slow climate change, and redress systemic racism in farming. With very few exceptions, the brigade of right-leaning lawyers and commentators who railed against nationwide injunctions has fallen silent. No one accuses the judges who are frustrating the president’s agenda of working for the “resistance” against Biden. When a Democrat entered the White House, conservatives suddenly learned to love nationwide injunctions.

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In fairness, it was conservative lawyers who first perfected the art of the nationwide injunction during the Obama administration. In 2015, U.S. District Judge Andrew Hanen, a George W. Bush appointee, issued a sweeping decision suspending a program that would’ve deferred deportation for unauthorized immigrants whose children are American citizens. A conservative appeals court endorsed Hanen’s nationwide injunction, and the Supreme Court’s Republican appointees kept it in place. Conservative judges repeatedly cited this precedent to justify blocking a wide range of Obama policies, including protections for transgender students and patients, throughout the country. These judges spurned the notion that injunctions should be limited to the defendants in the case, or restricted to a specific geographical area. Thus, a federal judge in south Texas could block the government from imposing a regulation in northern Alaska.

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After Trump assumed the presidency, left-leaning courts drew upon the same precedent to block some of his most controversial policies—especially those involving immigration. For instance, federal judges halted Trump’s travel ban, DACA rescission, wealth test for immigrants, and new obstacles to asylum. The Supreme Court upheld some of these decisions and overturned others; only Justices Clarence Thomas and Neil Gorsuch expressed hostility toward the nationwide scope of the orders. All the while, Trump, his Justice Department, and his allies inveighed against nationwide injunctions as lawless abuses of judicial authority. And Republican politicians like Sen. Ted Cruz charged these judges with “operating effectively as part of the resistance movement.”

The conservative consensus against nationwide injunctions that developed under Trump evaporated upon Biden’s inauguration. Red state attorneys general have rushed to federal courthouses around the United States to demand these injunctions against Biden policies. And Republican-appointed judges have doled them out with exceptionally weak justifications. Three examples illustrate how the nationwide injunction–industrial complex has foiled Biden’s priorities.

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First, on Jan. 26, U.S. District Judge Drew Tipton, a Trump nominee, blocked Biden’s 100-day moratorium on deportations upon Texas’ request. After questioning the propriety of nationwide injunctions, Tipton issued one anyway, applying his decision “in every place” affected by the moratorium. The Biden administration could have tried to work around that ruling, which reflected a dubious understanding of immigration law. Instead, the Department of Justice chose to vigorously enforce it, even deporting a witness to the El Paso shooting who was cooperating with prosecutors. Eventually, the administration simply gave up on its deportation moratorium, giving up the legal battle. Tipton successfully prevented Biden from following through on a key campaign promise.

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Second and more recently, on June 10, U.S. District Judge William C. Griesbach, a George W. Bush nominee, halted the American Rescue Plan’s loan forgiveness program for certain farmers and ranchers. This program allowed the government to pay off the debts of “socially disadvantaged” farmers, a group defined as people “subjected to racial or ethnic prejudice.” After white farmers sued, Griebach blocked the payments, asserting that they violated equal protection by discriminating against white people.

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This decision is disturbing: As Harvard Law Professor Niko Bowie has observed, Griesbach’s reasoning seems to imperil “ordinary nondiscrimination laws” by confusing race-neutral remedies against racism for racial discrimination. But equally notable was the judge’s solution to this alleged problem: He issued a nationwide injunction against the multi-billion dollar program which he barely bothered to justify. Griesbach merely wrote that he sought “to provide complete relief to plaintiffs, to protect similarly-situated nonparties, and to avoid the chaos and confusion that comes from a patchwork of injunctions.” Since these interests are always present in a suit against the federal government, the judge essentially justified issuing nationwide injunctions in 100 percent of such cases.

Third, on Tuesday, U.S. District Judge Terry Doughty, another Trump appointee, lifted Biden’s pause of new oil and gas leases on public lands. The plaintiffs in this case aren’t even corporations that stand to benefit from new leases; they’re red states who claim the pause will hurt their economies. Nonetheless, Doughty gave these states everything they want, forcing the Biden administration to resume granting new oil and gas leases to oil and gas companies. Like Tipton, Doughty insisted that he “does not favor nationwide injunctions unless absolutely necessary.” But—surprise!—he decided that in this case, a nationwide injunction is absolutely necessary because of “the need for uniformity.” (Doughty failed to explain why this “need” is so pressing here, or what “uniformity” means in this context; his justification spans just three sentences.)

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The problem here is not just that right-wing judges are hypocritically deploying the exact tool that conservatives decried under Trump. It’s that they’re doing so with a blithe, devil-may-care attitude that evinces remarkable indifference toward nationwide injunctions. These judges aren’t even pretending to identify some extraordinary circumstances that legitimize their use. They have embraced nationwide injunctions as the new normal, and despite performative hand-wringing over their legitimacy, conservatives judges seem ready to throw them at the Biden administration like it’s 2015 all over again.

In reality, there is probably no easy answer to the nationwide injunction conundrum. A handful of genuinely consistent commentators like Notre Dame Law School Professor Samuel Bray oppose them across the board. The more conventional view, widely shared among liberals, is that they are appropriate in rare circumstances where Congress has authorized them or the Constitution demands them. Whatever the solution, the recent spate of nationwide injunctions suggests that Biden, like Trump and Obama before him, will be boxed in by aggressive judges. The conservative legal movement has an opportunity to prove its consistency by resisting this trend. Yet all signs so far indicate that it is eager to jettison past skepticism and jump into the race to set executive policy by judicial fiat.

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