Some Reasons to be Skeptical of Nationwide Injunctions

I disagree, on the merits, with President Trump’s executive order denying birthright citizenship to children of non-citizens who are born in the United States because their parents were here without a green card. I will explain my reasons for disagreeing with the President in more detail in a future blog post. My reading of the Constitution, the caselaw, the scholarly commentary, and of our history leaves me persuaded that United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), was correctly decided 127 years ago. Justice Gray’s opinion in that case for six justices of the Supreme Court is far more persuasive and more thorough than is Chief Justice Fuller’s dissent.

I disagree, however, with the increasingly aggressive issuance of nationwide injunctions by the federal district courts, including the nationwide injunctions at issue in Trump v. CASA, a birthright citizenship case which is presently before the Supreme Court. Article III, Section 2 of the Constitution explains that “The judicial Power shall extend” to nine, and only nine, categories of specific cases or controversies. The federal courts do not have the power to decide issues nor are they the sole expositors of the meaning of the Constitution.

The Constitution never mentions the word “interpretation.” It never expressly grants any actor a power of interpretation and does not expressly grant courts a power of judicial review. The only powers granted by the Constitution are legislative, executive, and judicial powers. All of those powers require those who exercise them to engage in interpretation to ascertain the scope and limits of their powers (and the powers of other actors), but those powers of interpretation are incidental to the exercise of [the legislative, the executive, and the judicial power]. [Steven Gow Calabresi & Gary Lawson, The Meese Revolution: The Making of a Constitutional Moment 192 (2024).]

As former Attorney General Ed Meese explained in his October 21, 1986 speech on “Departmentalism” at Tulane University, all three departments of the federal government must interpret and enforce the Constitution when they perform their own distinctive functions. Congress must interpret and follow the Constitution when it makes the laws, the President must interpret and follow the Constitution when he executes the laws, and the Article III federal courts must interpret and follow the Constitution when they are deciding one of the nine categories of cases or controversies that they have jurisdiction to decide. Presidents Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt all said precisely the same thing as did Attorney General Ed Meese. [Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 111-114 (2020).]

It is true, as President Madison wrote, that “Without losing sight … of the co-ordinate relations of the three department to each other, it may always be expected that the judicial bench, when happily filled, will … most engage the respect and reliance of the public as the surest expositor of the Constitution” because of “the qualities implied in its members; … the gravity and deliberation of their proceedings; and by the advantage their plurality gives them over the unity of the Executive department, and their fewness over the multitudinous composition of the Legislative department.” [Id. at 111-112.]

But President Madison’s explanation as to why the Judicial department “attracts most the public confidence” applies rather uniquely to the Supreme Court and not to each and every one of the 667 individual permanent federal district court judges who have not taken senior status. When an individual federal district court judge issues a nationwide, or global, injunction directed at the President of the United States, it can only extend to the party who has standing to bring a Case or Controversy before the district court. Frothingham v. Mellon, 262 U.S. 447 (1923); Massachusetts v. Mellon, 262 U.S. 447 (1923). And standing in such a case depends upon there being (1) a concrete and particularized legal injury that is not speculative and hypothetical (2) that has been caused by the President and (3) that can be redressed via judicial review. Any remedial judicial injunction can apply only to the party or parties who brought the case or controversy and that had standing to bring the case or controversy in the first place.

It is not at all clear that any of the parties in Trump v. CASA has suffered a legal injury that warranted the issuance of a nationwide injunction. Such parties will surely exist if, and when, President Trump tries to deport a named non-citizen who was born in the United States to parents who were in the country without a green card, or if, and when, President Trump tries to deny a U.S. passport to such a person. But even then, the Article III district courts only have power to issue injunctions as to the parties who are actually before the court. Article III district judges do not have the power to review in the abstract the constitutionality of President Trump’s misguided birthright citizenship order, which is what the lower federal courts did in Trump v. CASA.

No sane legal system would give any one of 667 district judges, acting alone, the power to set aside the actions of the President, in the abstract, as to some legal issue that annoyed someone or even that annoyed 20 State Attorneys General. Such a system creates an incentive for forum shopping and for individual judges to abuse their power. It prevents the deliberation of issues by many judges, and ultimately by the Supreme Court, which is absolutely necessary for the public to have confidence that our unelected judiciary is deciding cases or controversies according to law rather than for partisan reasons. It also hamstrings the President of the United States, who is chosen by all the people of the nation in an election that is widely considered to be the most important election that our nation holds.

Judicial review, ultimately by the Supreme Court, is a vital part of our American system of checks and balances, but the Framers of the Constitution quite deliberately chose not to give the Article III federal courts the power to issue advisory opinions rather than the power to slowly and deliberately decide “cases” or “controversies” of “a judiciary nature.” The idea that any one of 667 federal district judges should act as a king on some particular issue is itself a threat to our system of checks and balances because it concentrates too much power, in too few judges, acting far too quickly. And it bears noting that federal district judges are often in practice selected by their home state senators and do not have the same stamp of national approval as has the Supreme Court.

The American people will not have, and should not have, confidence in the impartiality and soundness of judicial decision-making that occurs in the frenzied fashion in which it occurred in Trump v. CASA. It is time for the Supreme Court to set some limits on the inferior federal courts with respect to the issuance of nationwide injunctions.

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