Injunctions

This month, the U.S. Supreme Court took on the question of nationwide injunctions. In this case (as I discussed in my earlier post), the precipitating case was in regards to an injunction levied in the matter of birthright citizenship, but the question becomes much wider. In the American legal system and government, the injunction has become a time-honored tool of political resistance.

For the first 175 years of our national history, the concept of a national injunction wasn’t really a thing. The closest thing anyone really got to one was 1913’s Lewis Publishing vs Morgan, but that was essentially a dead ruling because the federal government had already agreed not to enforce the law in question until the case had been adjudicated; 1923’s Frothingham vs Mellon actually spiked the notion of a broad injunction when the court ruled unanimously that “a Court could not provide such relief without “assum[ing] a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.” This held until 1968, when Flast v Cohen reintroduced the concept of taxpayer standing. National injunctions were used exceedingly sparingly over the next forty years, with an average of 1.5 per year, against both Republican and Democratic administrations.

Then comes 2008. Obama vs McCain, in the long shadow of the War on Terror, with a chilling recession and Bush fatigue and a dynamic new centrist Democratic president. Needless to say, the Republicans got whipped, and a Democratic administration started implementing its agenda. In resistance, the Republicans fell to the states, bringing legal challenges against the federal government primarily in friendly “small” jurisdictions like the one-judge Northern District of Texas. In turn, Democrats mauled in 2016 brought cases primarily in left-leaning cities and blue states, and then the 2020 anyone-but-Trump election prompted more Republican-filed cases in Bumblefuck, and now 2025’s MAGA 2.0 has prompted a flurry of even more cases (and attendant concerns and solutions, like this one from the Harvard Law Review). Obama, Trump, Biden, and now Trump have all felt the affects of enjoinments; cases as myriad as student-loan forgiveness and abortion pill availability and environmental regulations. Some have percolated to the Supreme Court, others have been frozen and become the de facto law of the land after an appellate court decision. Currently, we’ve got Democrats fighting for nationwide injunctions against controversial Trump administrative actions like the attempted restriction of birthright citizenship; but we’re also all old enough to remember blue outrage over injunctions against student loan forgiveness and mifepristone, and before that we remember Red outrage at injunctions against Dont’ Ask Don’t Tell.

So, short version, both political parties have taken advantage of the widened availability of national injunctions to stop the prevalent agenda. There is at least some consensus that forum-shopping and legislation-via-judge is becoming a serious problem that undermines the integrity of the legal system and politicizes justice; there are further concerns from the executive branch that legally-allowable and legitimate executive powers are being restrained by judicial activism (Biden’s student-loan relief efforts, Trump’s tariffs, etc). Certainly there could be improvements to our current system and reforms, but this month’s SCOTUS case threatens an overreaction- should the old Frothingham precedent that obliterated the concept of taxpayer standing or similarly broad-based standing be restored, or should we maintain 1968’s ruling that extended standing to everyone who could conceivably be affected by a ruling even as non-parties to a case (functionally, taxpayer standing)? These all-or-nothing arguments ignore a few unpleasant realities, and you’re about to get my raw, blunt and not-a-lawyer analysis.

1. Most of the time, the issue isn’t that massive, and a nationwide injunction is unnecessary because the issue can be distilled to one particular case that can be evaluated on its own merits. But that’s conditional, and conditionality is a bitch. Cases like Frothingham vs Mellon did not have immediate affects on the people of the state of Massachusetts in terms of their daily lives; no one was risking deportation in Biden vs Nebraska (student loan forgiveness). But those conditions break down when the administration takes significant and extreme actions- for example, birthright citizenship or Trump’s “Liberation Day” tariffs. These are massive issues that affect every American, executed via executive order, with minimal (or no) legal support from the American code of law. In cases like Trump’s demands regarding birthright citizenship , it is literally impossible to identify who may be affected by the order because they literally are not regarded as legal individuals or even in existence right now; in the case of his tariffs, it is literally every American in every economic transaction we engage in that is affected. How else is the judiciary to regulate the execution of government action, as directed by law, other than to have a scope of power equal to the executive and legislature?

2. In some cases, injunctions are really, really inconvenient for the people and parties in power, because their agendas are being implemented tangentially to the letter of the law, via administrative decisions and policies. The abortion debate is a perfect example- mifepristone was approved by the FDA’s relatively opaque and non-publicly-accessible, not-federally-legislated decision; is available through the mail as a result of permissive legal structures governing medical practice and prescriptions, and ultimately was waylaid by one conservative robed dude in Amarillo, Texas who called “bullshit” on the entire government claim that abortion care should be legal in all places in violation of state laws via alternative pathways. Yes, that particular case is silly for a lot of reasons…but it’s still a single judge standing up against government overreach (real or perceived) and blocking a national implementation of that policy. And for all those protesting “but that’s different!”…what if it was something like a gun-control agenda being questioned, like Ocean State Tactical vs Rhode Island? Regardless of where we fall on the political spectrum, the judiciary at any level having the ability to block novel and expansive federal action is probably a good thing. Why? Because good processes and solid logic can survive time and consideration and a stress test; bad processes generally cannot. Just like a budget bill, actions that cannot survive scrutiny should not be rushed into implementation.

3. Even though national injunctions do put the judiciary into the position of politicians, sometimes, that is the role that is needed. An injunction is, by definition, an adversarial stance to the predominant power in the executive and/or legislature; it is the hard job of a judge to stand up to that illegal and/or unconstitutional order and say “no, we’re not doing that.” It takes a degree of personal conviction, courage and integrity to do that. That is literally why our appellate judiciary is appointed, lacks term limitations and requires confirmation. Yes, it isn’t convenient for the powers that be, but the powers that be are not the arbiters of the court’s reputation or the court’s masters. Plenty of executive actions, laws and regulations that were intentioned to meet the executive’s desires and crafted to exploit the law and U.S. legal code have been hard-stopped by the judiciary for very real constitutional reasons, but often well after the fact- for example, FDR’s infamous Executive Order 9066 was blatantly uncomfortable and unconstitutional on its face and was probably one of the least American things ever proposed, but by the time it was adjudicated, it was far too late for 110,000 American citizens who had suffered very real harm. Had national injunctions been a thing and a judge been willing to show a spine, perhaps internment or Jim Crow or any of a myriad of other challenges might not have occurred. Sometimes, we need heroes- and if that hero is one judge or one court in one place standing up for all of us, the burden should be on the government to legally justify why an action is necessary and proper. The injunction, one again, is a brake on bad decisions, not an execution of good laws. Good, supportable actions under color of law can survive judicial challenge. And as much as I hate to see good ideas go down in flames, those good ideas need to be implemented in a legally-sound, constitutionally-appropriate process. That takes hard work, whole-of-government action and politically-accountable behavior from our representatives and elected leaders- the way our system is supposed to work.

4. The injunction is inherently a protective action and it is often impossible to predict or identify every person who is or will be affected by an action. Broad injunctions allow a judge to define a class of protected persons, not persons by name. This allows cases to be packaged and tried far more efficiently, which is vital for the function of our courts. This goes to the core of our 14th amendment right to “equal protection under the law” because it allows that one court to make a finding protecting all persons within the Federal court system, not a panoply of different rulings from different judges. This also helps to limit the risk of judicial corruption, which leads us to our next point…

5. National injunctions help prevent the possibility of judicial capture. Let’s face it, judges are people too, and things like RVs and private school tuition coverage and exotic vacations can be perceived as bribes. Even more insidious, the selection and appointment of ideological fellow-travelers to the bench is a very real phenomenon- somehow I doubt Joe Biden chose Kentaji Brown-Jackson based on her deep, abiding love of the Second Amendment, and I’m not entirely certain that Trump selected Neil Gorsuch based on his well-established skepticism of and resistance to Republican executive actions. The judiciary is absolutely susceptible to public opinion and the rest of the government influencing it; but the prospect of a single federal judge being able to derail an entire initiative makes that degree of capture and bribery and fellow-traveler court-packing a lot less feasible. As long as one judge is able to make a principled stand, independence is protected.

With all that being said, I think that we should absolutely reevaluate how our current system works and mitigate problems like forum-shopping. But wholesale abolition of the national injunction is a bad answer- not just for the Trump era, but for the Biden and everyone who comes next. A powerful Presidency requires a powerful judiciary and powerful legislature to counterbalance. Perhaps, instead of neutering the branches of government currently inconvenient, we should restrain the branches of government that are currently arguing that they need immunity from the law to execute the law.