Our Constitution is very clear; Article I grants all legislative powers to Congress and Article II grants the Executive the power to execute the laws passed by Congress. Article III places the power to interpret the laws in one Supreme Court and such inferior courts as Congress may establish, including the jurisdiction of the courts.
In the Judiciary Act of 1789 Congress established a lower court system consisting of appellate courts and federal district courts of which there are now 94. From 1789 to 1875 the district courts had very limited jurisdiction however, in 1875 Congress expanded jurisdiction of these lower courts to include review of general questions of federal law.
Between 1875 and 2015, with very few exceptions, the lower courts limited their jurisdiction to the parties before the court. In 2015 two lower federal courts moved from interpreting the law to creating new laws. First, the Southern District of Texas issued a nationwide injunction against the Obama administration preventing implementation of an Executive Order on immigration from going into effect. In 2016 the Northern District of Texas issued a nationwide injunction barring private universities from enforcing sexual assault as stated in an administration letter opinion.
A nationwide injunction is an order by a lower federal court that has nationwide application to all individuals, including those who are not parties to the lawsuit while simultaneously prohibiting the government from enforcing the federal law, regulation or guidance in dispute. In effect, these nationwide injunctions, issued by federal district court judges who sit in courts within a designated area of the United States (the district) make law for the nation. A few of these district courts are merely one judge operations.
The difficulty with a district court judge making law for the nation through a nationwide injunction is that Congress has not granted these “judge lawmakers” any authority to assume such power. A court may command parties before it to act in a certain manner. A court can expand the parties before it by authorizing joinder of specific parties or allowing a class action, provided the class is properly formed, i.e. notice, right to withdraw, adequate representation of counsel. But there is no law authorizing a district court judge jurisdiction over parties not before the court.
The judges claiming this nationwide power assert that since the federal government is a defendant in these cases the only mechanism for providing complete relief to all persons similarly situated is the use of a nationwide injunction.
Beginning in 2017 however, opponents of the Trump administration regularly sought out specific courts to overrule Congress and the administration by having a single judge issue a nationwide injunction. These efforts secured nationwide injunctions against many of the administration’s policies, e.g. Travel ban, DACA amnesty, religious exemptions under ObamaCare, and stripping federal grants from sanctuary cities, to name a few. These injunctions were secured by a process called “forum shopping”, that is finding a reliable judge, somewhere in the country, who rules based on political beliefs rather than the law of the nation. Once the right court is found, the outcome is usually pre-ordained, especially if the court is in Hawaii, California or Washington.
While forum shopping was used by environmental groups for decades in sue and settle cases, the courts in these cases merely mandated the agency propose a regulation that Congress directed be issued. These nationwide injunctions however, are not authorized by Congress and can remain in effect for years until there is appellate review. The impact of these injunctions raises many extremely serious constitutional and statutory concerns that are so important to our democracy that the Constitutional Convention hotly debated the review powers of federal courts. The fear of some of our Founders was that there would be the “judicial tyranny” now being exhibited.
First, the nationwide injunctions are not issued based on any statutory authority. Since Congress makes the law and the law or regulation being enjoined is based on a statute, the lower court judge is literally overruling Congress and if a regulation, it overrules the Executive. Simply, the nationwide injunction intrudes into the primary function of our constitution – separation of powers.
Second, the district judge issuing nationwide injunctions usurps the power of other district court judges to consider similar cases brought by other parties which might result in different legal determinations. These diverse opinions are critical to the appellate courts and the Supreme Court since they allow the facts and the law to be fully explored before a final decision is made.
Third, Congress has enacted specific statutory provisions for allowing additional parties into a law suit, these provisions are called a class action suits or party joinder. By issuing a nationwide injunction the class action and joinder provisions and all notice requirements are bypassed.
The purpose of a trial court is to decide cases and controversies before it. In such a situation there is a real controversy between specific parties and specific relief requested by the parties. When a lower court judge on his/her own expands the scope of the litigation before the court to the entire nation, the court is assuming the duty of the legislature while eliminating the rights of citizens not before the court.
True, Congress has not legislated on the issue of nationwide injunctions by the lower courts but the courts need to keep in mind that they are created by Congress and have only the powers granted them by Congress. Courts cannot address issues outside of a specific congressional authorization, no matter how strong the political beliefs of the judge may be. The fact that Congress has not addressed an issue does not ever give a court authority to legislate. If a judge wants to change society, that judge should resign from the court and run for Congress. Otherwise, the judge needs to honor his/her oath to obey the Constitution, not to re-write it. And more importantly, Congress should address the issue by clearly limiting the power of a district court judge to the parties before the court.
This article was first published in The Reality News, March, 2018.