President Donald Trump’s agenda has been slowed by a long list of orders issued by federal judges against his policies. Those orders include many that are nationwide in scope.
Dubbed nationwide or universal injunctions, they are considered extraordinary because they allow a single judge to block national policies. Nationwide orders have increasingly been used by judges in recent years, prompting pushback from presidential administrations.
Judges have defended the broad scope of the injunctions, saying they’re necessary to avoid purported harms resulting from executive action.
Critics, meanwhile, argue that courts are exceeding their authority, even as lawyers “shop” for favorable judges who are likely to agree with their policy preferences.
Rise in Nationwide Injunctions
According to a study by the Harvard Law Review, the number of universal orders has increased in recent years.
Most come from judges appointed by a president from the opposing party to the one in the White House.
The trend, the study said, has been fueled by “judge shopping,” where plaintiffs strategically file lawsuits before judges they view as more favorable to their case.
Presidents George W. Bush and Barack Obama saw six and 12 universal injunctions, respectively, during their terms.
That number increased to 64 during Trump’s first term—59 of which came from a judge appointed by a president of the opposing party.
President Joe Biden, meanwhile, saw a slightly higher number than Obama with 14—all of them coming from judges appointed by a president of the opposing party.
Judges have defended the nationwide scope of their rulings.
“The necessity of a nationwide injunction is underscored by the fact that hospitals all over the country could lose access to all federal funding if they continue to provide gender-affirming medical care.”
In issuing a preliminary injunction on Trump’s birthright citizenship order, U.S. District Judge John Coughenour said in February that a geographically limited injunction would be “ineffective” as plaintiff states would have to pay for the children of illegal immigrants who travel from other states.
Supreme Court Review
Experts have pointed to Trump’s order restricting birthright citizenship as one that’s likely to reach the Supreme Court. Given a recent filing by the Trump administration, it could prompt a broader ruling about nationwide injunctions.
“Universal injunctions have reached epidemic proportions since the start of the current Administration,” Harris said. She noted that the number of universal injunctions and temporary restraining orders issued against the current administration has already outpaced the first three years of the Biden administration.
She argued that “only this court’s intervention can prevent universal injunctions from becoming universally acceptable.”
Under Biden, Solicitor General Elizabeth Prelogar argued in a filing that “the government must prevail in every suit to keep its policy in force, but plaintiffs can block a federal statute or regulation nationwide with just a single lower-court victory.”
It’s unclear how the Supreme Court will handle the issue but some justices have indicated frustration with nationwide injunctions and opposed lower court decisions against Trump’s agenda.
Earlier this month, Supreme Court Justice Samuel Alito, in dissent, criticized a lower court decision and said he was stunned by his fellow justices allowing an order that mandated the federal government pay billions in foreign aid.
“Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?” he asked.
“The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise.”
Justices Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh also disagreed with the decision to deny the Trump administration’s appeal in that case.
Gorsuch, in particular, has taken issue with the rising use of nationwide injunctions. In a 2020 concurring opinion, he said there was a problem with “the increasingly common practice of trial courts ordering relief that transcends the cases before them.”
“Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case,” he wrote.
While speaking at Northwestern University Law School in 2022, Justice Elena Kagan said that “it just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
Potential Reforms
Gorsuch’s statement raised questions about the scope of judges’ authority—should their injunctions be limited to the parties before them or extend to others as well?“Legal courts are meant to resolve disputes between two parties ... they’re not sort of these general, free-floating boards of inquiry that are ... setting things right,” University of Baltimore School of Law professor Gregory Dolin told The Epoch Times.
Heritage Foundation Vice President John Malcolm told The Epoch Times that until Congress reins in the practice or the Judicial Conference of the United States changes the rules, the practice is likely to continue.
Other proposals have included eliminating nationwide injunctions or having a panel of judges that reviews cases in which nationwide relief is requested.
