Seventy-seven million Americans elected Donald Trump last November. They elected him to make us safer, to restore law and order, and to return common sense to our country.
Since his inauguration, President Trump has carried out his promises to the American people, issuing executive orders on a range of policy objectives. That’s how it should work in our country — the people choose the president and the president directs the executive branch to enact his agenda.
In the opening months of the second Trump administration, however, we’ve seen a new resistance to Trump’s policies. This resistance is anti-democratic and contrary to the rule of law. And it’s coming from within the federal judiciary.
Since Trump took office, federal district court judges have issued more than 40 nationwide injunctions blocking his agenda. That’s on top of 64 issued during his first term, representing a majority of all the nationwide injunctions ever issued in American history.
Often filed by liberal activists before sympathetic judges in carefully selected jurisdictions, a nationwide injunction enjoins conduct across the entire country. In this way, it departs from the proper role of a court in adjudicating a particularized dispute between clearly identified parties.
Nationwide injunctions have no basis in American legal traditions or English common law. They violate principles of judicial restraint. And their increased use has serious consequences for constitutional order.
The Constitution limits judicial power to only those “cases” and “controversies” before the courts. That makes sense. Judges shouldn’t be issuing decisions that constrain people who never even set foot in the courtroom. But with a nationwide injunction, one federal judge can block a policy affecting millions, creating a judicial policy veto that is nowhere to be found in the Constitution.
Beyond these clear constitutional problems, nationwide injunctions hurt the uniform and efficient administration of justice. These injunctions, especially when issued as temporary restraining orders, don’t allow for thorough fact-finding, meaning appellate courts wind up reviewing an incomplete and inaccurate record. They also unfairly benefit special-interest plaintiffs who file identical suits in multiple jurisdictions, because the plaintiffs need only succeed in convincing one court, while the government must successfully defend every case in every jurisdiction.
The rise of nationwide injunctions, and their obvious abuses during the first four months of the Trump administration, demand a response.
In the House of Representatives, we’ve passed a bill drafted by Rep. Issa that would restrict a federal judge’s ability to issue a nationwide injunction. It’s up to the Senate to send it to the president’s desk. The Judiciary Committee and its Courts Subcommittee, which we respectively chair, have held hearings and done oversight about the abuse of nationwide injunctions. We’ve urged congressional appropriators to use the power of the purse to force the judiciary to make reforms. And our work isn’t done.
But the institution that’s best positioned to stop the abuse of nationwide injunctions sits just across from the Capitol Building. The Supreme Court heard oral arguments last week about nationwide injunctions in an immigration case. That appeal gives the court a chance to rein in the abuse of such injunctions and force lower-court judges to stick to their proper constitutional role.
In his confirmation hearing before the Senate, Chief Justice John Roberts famously equated the job of a judge to that of a baseball umpire — calling balls and strikes, and nothing more. Applying his metaphor, a nationwide injunction would mean that an umpire’s ball-and-strike call in Cleveland would apply to the game in San Diego, in Houston, and everywhere else. That wouldn’t fly in our national past-time and it shouldn’t be acceptable in our nation’s courtrooms.
Our nation is the greatest because “We the People” have the ultimate authority. We are blessed to live in a democracy where the policy decisions are made by those elected to office — not by unaccountable bureaucrats or unelected judges. The policy agenda of a president elected by 77 million people shouldn’t hinge on the separate approvals of 677 unelected district court judges. The Supreme Court must end the abuse of nationwide injunctions.
Rep. Jim Jordan (R-Ohio) oversees the House Judiciary Committee; Rep. Darrell Issa (R-Calif.) chairs its Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet.
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