Trump team goes to war against lower court injunctions

By Amanda Reilly | 06/19/2018 12:59 PM EDT

The Trump administration is fighting what it calls the “increasingly prevalent” trend of lower-court rulings blocking policies nationwide.

The Trump administration is taking a stand against nationwide injunctions on the Waters of the U.S. rule and in court cases challenging its policies.

The Trump administration is taking a stand against nationwide injunctions on the Waters of the U.S. rule and in court cases challenging its policies. Petr Kratochvil/

The Trump administration is fighting what it calls the "increasingly prevalent" trend of lower-court rulings blocking policies nationwide.

Such nationwide injunctions "frustrate development of the law, effectively freezing in place the first ruling adverse to the government unless and until appellate courts intervene," the administration told the Supreme Court yesterday.

The filing came in response to a district court ruling — later affirmed by a three-judge panel of the 7th U.S. Circuit Court of Appeals — that barred President Trump’s policies withholding funding for sanctuary cities across the country. The administration has asked the court to overturn the injunction.


But the administration has also opposed nationwide injunctions in other contexts, including in the ongoing litigation over the Clean Water Rule. Even though EPA and the Army Corps of Engineers are working to replace the Obama-era rule, government attorneys have urged district courts to reject calls by states and industry groups to halt the policy nationwide.

"In no event" should the Clean Water Rule be stayed nationwide, the Trump administration told a Texas federal judge in February who is considering motions for a preliminary injunction.

"Generally, nationwide injunctions by district courts are inconsistent with the idea that rulings regarding remedy should be made by judges located in the same geographical area where the people and entities that will be most directly impacted by the ruling are located," Jeffrey Wood, acting head of the Justice Department’s environmental law division, said in a speech last year at a Texas environmental conference.


Legal scholars, however, say district judges are more and more likely to grant requests for nationwide injunctions.

Samuel Bray, a professor at UCLA School of Law, said nationwide injunction didn’t even appear in the law for the first century and a half of the United States.

The role of federal courts started to evolve in the 1960s and ’70s, and by the ’80s and ’90s nationwide injunctions "were an ordinary part of the remedial arsenal of the federal courts," Bray found in a recent article in the Harvard Law Review on the issue.

Republican state attorney generals "weaponized" the injunction to halt major Obama-era programs, Bray told lawmakers at a November hearing on injunctions in the House Judiciary Committee.

A Texas district court judge, for example, halted a Department of Education guidance for transgender students’ use of bathrooms.

The tables, though, have turned.

Lower courts have issued a number of orders halting Trump policies nationwide in litigation brought by Democratic attorneys general and other opponents, including the sanctuary cities orders, the decision to end Deferred Action for Childhood Arrivals, the travel ban executive order and the prohibition on transgender people from serving in the military.

In its first year in office, the Trump administration faced at least 22 nationwide injunctions, according to a March editorial by Attorney General Jeff Sessions in the National Review.

"Nationwide injunctions mean that each of the more than 600 federal district judges in the United States can freeze a law or regulation throughout the country — regardless of whether the other 599 disagree," Sessions wrote. "That’s a threat to the proper functioning of the federal government."

‘Liberals go out to the West Coast’

The recent court rulings have prompted some congressional Republicans to also call for limits to nationwide injunctions.

At the House Judiciary Committee hearing last November, GOP critics said the knowledge that an individual district judge can issue a nationwide injunction encourages forum-shopping among plaintiffs.

"Republicans go to the 5th Circuit. They go down to Texas, where they consider they’re going to get more conservative judges," Rep. Steve Chabot (R-Ohio) said then. "The liberals go out to the West Coast."

Republicans have bounced around ideas such as a bill to bar district judges from issuing nationwide injunctions, a bill that sends decisions about nationwide injunctions to special three-judge panels or legislation setting more specific factors that courts have to consider in issuing injunctions.

But Amanda Frost, a law professor at American University, said that uptick in the number of injunctions granted by district judges is a result of the president taking on more authority. She maintains that injunctions have a role in the legal system.

"We’ve seen the federal executive power expand enormously, and the president takes sweeping unilateral action without getting legislation, without getting the kind of support of another branch of government that it used to get," she said. "And that’s true for Obama and for Trump."

In environmental law, the current battle is playing out in the litigation over the Clean Water Rule, which is also known as the Waters of the U.S. rule, or WOTUS.

During the Obama administration, opponents of the rule sought court orders from district judges blocking its enforcement. Following the Supreme Court’s January ruling that challenges to the rule belong in district courts, several states and industry groups have renewed their calls for judges to halt the rule nationwide while the Trump administration works on a replacement that covers fewer bodies of water. They’re pushing for an injunction despite a Trump rule delaying WOTUS by two years.

So far, district court judges have resisted halting the Clean Water Rule nationwide during both the Obama and Trump administrations.

In 2015, a North Dakota federal judge declined to extend a preliminary injunction barring enforcement of the rule to the whole nation, instead confining it to 13 states that brought suit in his court. Earlier this month, a Georgia federal district judge blocked WOTUS in 11 states.

‘Every administration’

The government has been fairly consistently opposed to nationwide injunctions, both in WOTUS and other litigation.

"Every administration objects to nationwide injunctions because they put a stop to their policies," Frost said. "The Obama administration also objected to nationwide injunctions."

There are, though, some circumstances where a nationwide injunction makes sense, said Stephen Samuels, a former Justice Department attorney who handled Clean Water Act litigation during the Obama administration.

"Our position is always that you can grant relief with respect to particular plaintiffs in a case even if it reaches beyond the jurisdiction if you have a class action or if you have plaintiffs with a nationwide presence," Samuels said.

He said, for example, a nationwide injunction might be appropriate for a plaintiff like the Natural Resources Defense Council, which has members throughout the country.

The Supreme Court, which in 2016 blocked the Obama administration’s Clean Power Plan from taking effect across the country, has so far declined to weigh in on the current debate about when it’s appropriate for a district judge to issue a nationwide injunction.

In the sanctuary cities litigation, the Trump administration has asked the high court to overturn the injunction before the 7th Circuit has fully completed its appeals process. The 7th Circuit agreed to consider the injunction en banc, or in front of the full court, but has yet to issue a decision.

The issue is also teed up in the travel ban case currently in front of the high court.

The government has asked justices to decide whether a nationwide injunction issued by a federal district judge in Hawaii is "impermissibly overbroad." It’s possible, though, for the Supreme Court to decide the case without answering the question.

"The court has never definitely said when it’s appropriate for a district court to issue a nationwide injunction," Samuels said. "It’s a big issue, and it would be great to have some guidance from the court."