Murray: Supreme Court decision limits nationwide injunctions

In Brief:

• Supreme Court ruled district judges can’t issue nationwide injunctions
• Ruling stemmed from Trump executive order targeting birthright citizenship
• Decision limits how courts can block potentially unconstitutional actions
• Class actions are not a viable workaround due to legal hurdles
• Proposal: A specialized judicial panel to handle national injunctions
• Reforms could preserve checks and balances without overreaching judicial power

The decision in Trump v. Casa highlights the problem of allowing one judge to make a ruling that affects our whole country.

On June 27, the U.S. Supreme Court decided 6-3 that a single district court judge could not issue an injunction that would apply nationally. The Supreme Court looked to precedents from English courts going back before our country was even founded to determine that district courts do not have the jurisdiction to grant nationwide injunctions. The decision, however, failed to address how, in the absence of a nationwide injunction, the actions of the federal government can be effectively challenged as unconstitutional.

At the beginning of his second term, President Donald Trump signed an executive order eliminating citizenship for people born in the United States if the parents were born in another country. Known as birthright citizenship, it is a right set forth in the 14th Amendment. Several district courts issued nationwide injunctions prohibiting the executive order going into effect while cases challenging the order were pending. The Trump Administration appealed to the Supreme Court, arguing that a single district court judge lacks the authority to issue an injunction that applies nationwide against his executive order.

The Founding Fathers believed that federal judges, who are appointed and not elected, would be wisemen who should function as an equal branch of government. While most of the 677 federal district court judges are smart and diligent, others not so much. Giving such vast power to one unelected district court judge to prohibit the orders of an elected President is simply undemocratic. Further, while liberals decry the Trump v. Casa decision, they should keep in mind that, absent the decision, future actions by a Democratic president would be subject to the injunctive power of one conservative district court judge.

The problem, however, is that there is no mechanism for the courts to reign in excessive power grabs by the president or anyone else. The Supreme Court decision made clear that Trump’s executive order must now be challenged on a case-by-case basis and any injunctive relief would only apply to the parties to the lawsuit.

As for bringing a challenge to a presidential act as a class action and awarding injunctive relief to the class, as one district court recently has done, is not a solution. The process for a class action is cumbersome, and class actions are generally disfavored by the courts. Any injunction issued in favor of a class can be challenged and appealed as not meeting the requirement for class relief, such as numerosity and the capabilities of class counsel.

Instead, for a model to address attempts at executive overreach, we can look to another law. In the national security area, Congress established the Foreign Intelligence Security Act (FISA) Court, which addresses urgent issues concerning terrorist threats. The judges appointed to the FISA Court tend to be the best of the best. Likewise, a panel of judges can be selected to address nationwide injunction applications in a timely fashion, and their rulings could be subject to an expediated appeal process.

We need to establish mechanisms to address government overreach in a timely and effective way. There are creative ways to do so. Limiting overreach would alleviate the concerns raised by this recent Supreme Court action and preserve the Founding Fathers’ intent.

The views expressed in the preceding article are reflective of Christopher Murray, a partner at the Uniondale-based law firm Rivkin Radler.