Lower courts' growing power over the president
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It's true, as the White House claims, that the courts have blocked President Trump's executive orders at a particularly high rate.
- It's also true, as White House's critics argue, that simply ignoring those rulings would undermine checks and balances established by the Constitution.
The big picture: Trump and his White House aren't alone in their frustration with district-court judges blocking major parts of their agenda.
- Presidents Obama and Biden also had major policies blocked by the same type of rulings. Legal scholars from both sides of the aisle have criticized the rapid rise of such sweeping orders.
How it works: Lawsuits against the federal government start in a district court — there are more than 600 district-court judges — then can move to an appeals court, then the Supreme Court.
- In the old days, district courts' rulings only applied to the parties before them. But since the beginning of the Obama administration, those judges have become increasingly willing to say their rulings apply nationwide — the same scope a Supreme Court decision has.
By the numbers: District courts issued 12 rulings freezing Obama administration policies, according to a Harvard Law Review tally — a record at the time.
- That leapt to 64 in President Trump's first term. District courts also blocked many of President Biden's signature policy proposals, including student-loan forgiveness.
- At least 15 universal (nationwide) injunctions have been issued against Trump's second-term policies.
There's a "completely shameless amount of hypocrisy" right now about universal injunctions, said Steve Vladeck, a Georgetown law professor who has been a consistent skeptic of their rise.
- Trump, White House officials and MAGA leaders are decrying "out-of-control" district courts — but celebrated their rulings against Biden. Few Democrats who decried those rulings against Obama or Biden are complaining about them now.
Zoom in: Experts see some role for broad-based injunctions.
- Vladeck pointed to the Trump administration's effort to end birthright citizenship, which has been frozen by multiple district courts.
- Citizenship is a national question. It's not really feasible for courts to rule that one person born in the U.S. is a citizen but another isn't.
- But it would be perfectly feasible, in plenty of other policy areas, for district courts to keep their rulings narrow and let higher courts reach more sweeping decisions.
Between the lines: Critics argue the rise of universal injunctions has also fueled a rise in venue shopping.
- When you only need to convince one district judge to halt an entire federal program, you'll quickly figure out the best place to file your lawsuit — and keep filing them there.
- A handful of conservative judges end up hearing the bulk of challenges to major Democratic initiatives for precisely this reason.
- Allowing states to sue the federal government — another trend that gained steam on the right during the Obama years, and is now fully bipartisan — also contributes to the rise in these rulings.
But presidents aren't simply bystanders in all this, Vladeck said.
- "We also have to indulge the possibility that the reason this is happening is we have presidents who are pushing the bounds of their authority more often," he noted.
What's next: Lots of proposals have been floated over the past few years to limit nationwide injunctions. Some legislative plans call for eliminating them entirely, which may be too restrictive. Others would only allow appeals courts to issue them.
- Supreme Court Justices Samuel Alito and Neil Gorsuch have been sharply critical of district courts blocking federal policies. But it's not clear they could persuade three more justices to agree on a specific plan to rein them in.
The one idea that no legal scholar has seriously endorsed is simply defying the courts — as many of Trump's closest allies, including Vice President Vance, have suggested.
