Trump’s Defeats Spark Debate: Is It Appropriate for a Single Judge to Determine National Policy?

Judges across various courtrooms, from Rhode Island to Seattle, have delivered verdicts against President Trump, inciting not only his ire but also capturing the attention of scholars from different ideological backgrounds regarding one of the judiciary’s most formidable powers: the nationwide injunction.

In the early stages of Mr. Trump’s second term, district judges have enacted nationwide orders that have halted the dismissal of civil servants, frozen federal funding allocated by Congress, restricted automatic citizenship for infants born in the U.S., and determined the housing of transgender women in federal prisons. And that’s just the beginning.

The discussion surrounding nationwide injunctions has been ongoing for years, but with over 100 lawsuits currently against the Trump administration, it has reached a fever pitch. Recently, Justice Samuel A. Alito Jr. condemned “the unchecked power” of a district court judge who mandated the State Department to disburse nearly $2 billion to contractors for the U.S. Agency for International Development. Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh supported Justice Alito’s dissent.

House Republicans are attempting to regulate nationwide injunctions via a bill proposed by Representative Darrell Issa of California, who stated that the legislation is necessary to remedy “a major malfunction” in the federal judiciary. According to the bill, undocumented immigrant parents would be required to file individual lawsuits or join class actions to safeguard their children’s citizenship rights. Senator Mike Lee, a Republican from Utah, is said to be drafting a similar proposal that would confine nationwide judicial orders to three-judge panels, with appeals directed to the Supreme Court.

In response, Democrats have accused Republicans of attacking the judiciary, the final safeguard against Mr. Trump’s power.

Clearly, nationwide injunctions have propelled the modern judiciary into a dynamic and impactful role, as any of the 600-plus trial court judges can make headlines with an emergency order that halts White House actions. Experts suggest that the rise of such injunctions is largely a response to administrations from both parties that have employed unilateral action and expansive interpretations of existing laws to bypass Congress.

According to a 2024 study by the Harvard Law Review, six nationwide injunctions were issued during President George W. Bush’s two terms, while 64 emerged during Mr. Trump’s first term.

Under President Joseph R. Biden Jr., judges have invoked nationwide injunctions to thwart a Covid-19 vaccine mandate for federal contractors, a federal mask mandate for air travelers, a suspension of new oil and gas leases, and deportation protections for certain undocumented spouses and stepchildren. In 2023, Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas attempted to prohibit the abortion pill mifepristone, a decision eventually overturned by the Supreme Court.

Thus, the conversation surrounding the legitimacy of such injunctions transcends partisanship, shifting with the political landscape surrounding the presidency.

Nationwide injunctions are regarded as “a vital remedy to tackle expansive executive orders,” stated Amanda Frost, a law professor at the University of Virginia. “This was true during the presidencies of Obama and Biden, just as it is today.”

With the judiciary serving as the sole substantial limitation on Mr. Trump’s authority during this term, the discourse regarding nationwide injunctions has taken on urgent and partisan dimensions. Representative Jamie Raskin of Maryland, the leading Democrat on the House Judiciary Committee, recently criticized Republicans on YouTube for “attempting to dismantle the judiciary’s power” to facilitate Mr. Trump’s “egregiously lawless and irresponsible violations of individuals’ rights.”

Just a week earlier, Elon Musk, an ally of Mr. Trump, expressed an opposing view on his platform, X, stating, “If ANY judge ANYWHERE can block EVERY Presidential order EVERYWHERE, we do NOT have democracy; we have TYRANNY of the JUDICIARY.”

In the legal community, the discourse remains more tempered. Advocates of nationwide injunctions point to instances where vast numbers of individuals would require judicial access without such measures.

Yet, “there are numerous scenarios where suing the federal government poses significant risks,” remarked Mila Sohoni, a professor at Stanford Law School.

For instance, she explained, if an undocumented woman expecting a child were to file a lawsuit under the alias Jane Doe and succeed in obtaining a court ruling granting citizenship to her unborn child, she would then need to reveal her identity to obtain a passport for her newborn, disclosing her address and phone number and requesting to avoid deportation.

“Is that realistic?” Ms. Sohoni questioned.

Critics argue that the extensive reach and swift implementation of nationwide injunctions exacerbate the politicization of the judiciary as judges deliver emergency verdicts prior to fully evaluating the cases’ substantive merits.

The judiciary is “an institution that thrives on deliberation,” stated Samuel L. Bray, a law professor at Notre Dame. Even when White House actions are “blatantly unlawful,” judges may be “compromising their authority as adjudicators in future cases” by issuing emergency nationwide injunctions.

Jack Goldsmith, a Harvard law professor and former assistant attorney general, noted in 2017 that judges faced formidable challenges during Mr. Trump’s first term due to their reviews of extraordinary executive actions within a highly charged atmosphere.

“However,” he observed, “they reacted with hasty and, at times, careless judicial opinions, frequently overlooking fundamental principles of restraint, prudence, and precedent.”

The evident partisanship reflected in recent rulings is hard to overlook. A significant number of nationwide injunctions have been granted by judges appointed by presidents from the opposing party to the current administration. Many of these rulings are the outcomes of lawsuits initiated by groups of state attorneys general, typically from the opposing party, in jurisdictions where they are most likely to receive favorable treatment.

The Supreme Court has yet to deliver a conclusive ruling on the constitutionality of nationwide injunctions, but conservative justices may be eager to weigh in. In 2020, Justice Neil Gorsuch criticized injunctions of “‘nationwide,’ ‘universal’ or ‘cosmic’ scope,” asserting that such “manifestly unmanageable” rulings were “causing upheaval.” Justice Alito has since entered the debate.

Regardless of the Court’s intervention, the current composition of the Supreme Court limits the sustained impact of nationwide injunctions, highlighted Michael Fragoso, the former chief counsel to Senator Mitch McConnell, a Republican from Kentucky.

“The successes” that Democrats are achieving “now have a finite lifespan,” he remarked. “Ultimately, they will reach the Supreme Court.”