The Justices Must At Long Last Deal With Chronic Injunctivitis

Authored by Jonathan Turley,

This week, the Supreme Court continued to deliberate over what to do with the growing number of national or universal injunctions issued by federal district courts against the Trump Administration.

The court has long failed to address the problem, and what I have called “chronic injunctivitis” is now raging across the court system. Justices have only worsened the condition with conflicting and at times incomprehensible opinions.

Both Democratic and Republican presidents have long argued that federal judges are out of control in issuing national injunctions that freeze the entire executive branch for years on a given policy. For presidents, you have to effectively sweep the district courts 677-to-0 if you want to be able to carry out controversial measures. Any one judge can halt the entire government.

Under President Barack Obama, Justice Elena Kagan expressed outrage over the injunctions in public comments at Northwestern University School of Law. Kagan lashed out at the obvious “forum shopping” by then conservative advocates to get before favorable courts, insisting “It just cannot be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal [appellate] process.”

In his first term, Trump faced a more than 450 percent increase in the number of such injunctions over the number issued under Obama — a rise from 12 to 64. The number then went down to just 14 under former President Joe Biden. With Trump back in office, district courts have now outstripped that record and may surpass the total from the first term in the first year.

However, when the pending case came up before the Supreme Court on one of the Trump injunctions, Kagan suggested that this was “different,” because Trump was clearly wrong. 

In oral argument, Kagan snapped at the Solicitor General: “Every court is ruling against you.” 

It was a curious point coming from a justice who had previously acknowledged that challengers were forum-shopping by going to favorable judges, as with the current cases coming out of largely blue states.

Kagan did not explain where the line should be drawn, leading to speculation on when something would be viewed as “just sorta wrong” or “really, really wrong.”

This week, the Supreme Court enjoined the Maine House of Representatives from denying State Representative Laurel Libby her right to speak and vote on the floor. In an outrageous action, the Democratic majority had effectively taken Libby’s constituents hostage by telling her that, unless she apologized for identifying a transgender athlete in public comments, she could not vote. The Supreme Court voted 7-2 to lift the ban, with Kagan joining the more conservative justices.

However, in her dissent, Justice Ketanji Brown Jackson (who has favored the injunctions in the Trump cases) stressed that there was no need for an injunction here because there were no “significant legislative votes scheduled in the upcoming weeks” or where Libby’s lack of a vote would “impact the outcome.”

It again left many scratching their heads on what Jackson would consider a “significant vote.” Moreover, thousands of Maine residents have been denied representation on the state House floor. That would seem significant even if the justice did not find certain bills to be sufficiently weighty.

These different approaches only deepen the uncertainly over the standards for lower courts.

Just in case the Supreme Court doubted the need for greater clarity on the use of these injunctions, Boston District Judge Myong J. Joun, perfected the record this week.

The Biden appointee had just been reversed by the Supreme Court last month when he issued a temporary restraining order for the Trump Administration to pay out frozen grants worth more than $65 million. The administration had raised questions about the basis for the grants and ordered a review.

Usually, a temporary order freezes the parties from changing the status quo to allow for review. 

It is difficult to appeal such an order, and the parties generally wait for a couple of weeks to seek review after the court issues a preliminary injunction.

But Judge Joun wanted to use the temporary restraining order to force the payments to happen, changing the status quo permanently. 

This did not seem like temporary relief, since money is not likely to come back after it is paid out.

This week, Joun was back with another injunction. This time he enjoined an effort of Education Secretary Linda McMahon to initiate a reduction-in-force and prepare for the potential elimination of the Department of Education.

Despite the false claims that Trump’s underlying executive order actually shut down the department, it stated that McMahon should, “to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education.”

While Joun admits that this was not a department shutdown, he still enjoined these efforts in an 88-page decision full of sweeping, dramatic language that sounds more like a policy paper than a restrained judicial order.

The court simply declared that even a reduction in force would make it “effectively impossible for the department to carry out its statutorily mandated functions.”

Many on the left again celebrated a judge effectively micromanaging the executive branch.  Michael Mann, a climate professor and senior administrator at the University of Pennsylvania, even seemed to add a threat — that “If Trump doesn’t comply, we’re in second amendment territory.”

Insurrection aside, it is clearly time for the Supreme Court to do something about this.

Despite a majority of justices harrumphing for years about these injunctions, lower court judges continue to issue them with abandon. In the meantime, presidents like Trump are looking at two years of litigation before they can make meaningful changes, including downsizing the government.

For the Supreme Court, it has become madness as emergency motions pile up every morning after executive programs are frozen overnight.

The solution to chronic injunctivitis is simple: You give district judges a dose of clarity and tell them not to call you in the morning.

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Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School, where he teaches a course on the Supreme Court and the Constitution.