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Jeff Sessions Doesn't Like Nationwide Injunctions, Except When He Does

When it comes to this powerful legal tool, everyone's a hypocrite.

Gage Skidmore/FlickrGage Skidmore/FlickrAttorney General Jeff Sessions has an article at National Review denouncing so-called "nationwide injunctions." The article—adapted from a speech to the Federalist Society—argues that courts shouldn't be allowed to issue injunctions that outright ban the government from enforcing a law anywhere in the country.

But Sessions doesn't really believe that. He doesn't believe it because nobody does, except perhaps a few especially cranky law professors. There are important debates to be had about the drawbacks of nationwide injunctions. (For example, they can incentivize "forum-shopping," in which allied plaintiffs file similar cases in multiple jurisdictions in the hope that at least one will obtain a favorable injunction.) But when these arguments spill out of legal academe into the public sphere, it's almost always just because someone is mad that his agenda has been frustrated.

As recently as 2015, Republicans were all about nationwide injunctions. They cheered when a judge blocked the Obama administration's rule raising the minimum pay for overtime exemption, while left-leaning groups complained about judicial overreach. The same thing happened when another judge issued a nationwide injunction striking down the Deferred Action for Parents of Americans program. "Thankfully, over a year ago, Judge Andrew Hanen in the United States District Court for the Southern District of Texas issued an injunction that stopped the Obama Administration from proceeding with its lawless immigration system," proclaimed one Republican senator. His name: Jeff Sessions.

It's fun to dunk on Sessions, but here's the thing: Whatever your politics, nationwide injunctions aren't your friend or your enemy. They're just one tool in a judge's kit, albeit a particularly big and smashy one. The handiwork can be progressive, conservative, libertarian, eco-anarchist, whatever. Objecting to them on consequential grounds only leads back to hypocrisy.

Less hypocritical are objections to nationwide injunctions on formal grounds—that is, arguing that they represent an improper usurpation of a legitimate executive or legislative power. But this doesn't get you very far, either.

It's true that nationwide injunctions are inherently more "political" than those that are more limited in scope, in that they fully halt the implementation of policies produced by political processes. But although American judges have long recognized that interfering with political decisions is dangerous, sometimes that's their job. Virtually nobody believes that the courts shouldn't step in if, tomorrow, Congress and the president enacted a law—say, abolition of trial by jury—that violates a clearly established constitutional right.

Sessions suggests that in such a case, courts should issue injunctions which only block the government from enforcing the unconstitutional law against the person who brought the claim to court. But does anyone think that Sessions would apply that same logic to, say, a law mandating universal gun confiscation? Of course not, and for good reason. When the rights a person considers crucial are at stake, the inadequacy of limiting courts to "plaintiff-protective" injunctions becomes obvious—which is why people tend to apply the argument only to rights they politically disfavor.

When a democratic government violates individual rights, our system relies on courts to correct the violation. In the course of doing that, judges have to make, well, judgments about how severe the violation is and how dramatic a remedy is needed to correct it. In the great majority of cases where a politician complains about a nationwide injunction, what he's really doing is second-guessing the judge's judgment, not making a principled argument about what remedies should be available.

Such second-guessing is everyone's right, but there's already a way to do it that doesn't eliminate a power that almost everyone supports: appeal. Precisely because of their broad scope, appellate courts usually subject nationwide injunctions to intense scrutiny, and they have a pretty good record of catching the egregious ones.

Some of Sessions' arguments are transparently silly. He says, for example, that such injunctions are illegitimate because they prevent the government from enacting the policies its constituents prefer. But the crux of the American constitutional order that his speech praises so vigorously is that no amount of popular or political support entitles a law to judicial deference if it violates the Constitution. If Sessions doesn't like that, maybe he should quit his job and go be attorney general of Wales, where they don't have judicial review.

Otherwise, he should just quit whining, and go file his appeals. For better or worse, that's what we pay him to do.

Photo Credit: Gage Skidmore/Flickr

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  • ragebot||

    While I get the point about politics being a factor I would point out what might be a solution. Few folks would argue the 9th is a forum shoppers dream for lefties. Same goes for the Supremes overturning the 9th more than any other circuit. So maybe if a lower court issues a nation wide injunction it should go directly to the Supremes without passing go and collecting two hundred dollars. Then the Supremes should be required to hold a special session to resolve the injunction in hours or days. Just throwing out numbers here but if a lower court judge gets over turned too many times (maybe like 5 in basketball) they would have to face impeachment. I have seen a lot of decisions even a 1YL would figure would be overturned no matter which side of the aisle the 1YL was on. Also have to point out that Sessions (no favorite of mine) is not alone is disliking no name judges issuing decisions that affect the entire nation; many times only to see it overturned by higher courts.

  • MatthewSlyfield||

    "Same goes for the Supremes overturning the 9th more than any other circuit."

    This isn't really true. In fact if you look at it in terms of the percentage of cases from each circuit in which the Supreme Court grants cert that get overturned, the 9th circuit is only the third most overturned circuit.

    Sure, their raw numbers are higher, but that's just a reflection of their size. In terms of the percentage of the US population that is covered by each of the regular circuits (excludes DC and the Fed Circuit), the 9th is more than twice the size of the next largest circuit.

  • Coffee boy||

    Damn you just destroyed a very common Republican belief.

  • Scarecrow Repair & Chippering||

    Sessions still looks ready for a Laugh In reboot.

  • I am the 0.000000013%||

    Henry Gibson?

  • Chumby||

    Injunction junction, what's your function?

  • DRM||

    It would be reasonable to only allow nationwide injunctions against the Federal Government to be issued by the United States District Court for the District of Columbia and its appellate bodies, while restricting all other courts' injunctions against the Federal Government in territorial scope to the area falling under the ordinary geographic case jurisdiction of the court.

    That would mean that you can still go to your nearest Federal court for relief for yourself, but if you want to fight on a nationwide basis, you'd have to do it in the national capital (and in a court under the Court of Appeals for the DC Circuit, already the specialist court for constitutional review of many Federal agencies).

  • Flinch||

    I'd like to believe the law begins and ends with congress. However, they have a long history of ceding so much to the executive branch, that they have run out of room and run off to court when things don't go right. So we wind up with constitutional absurdities such as SCOTUS telling the EPA to make co2 illegal. How did we get here? Congress [after curling up into a ball by way of senate orchestrated evidence-free proceedings during the Clinton impeachment] hates impeachment. Unfortunately, it's their best tool for rogue courts like the ones denying plenary power congress gave the president where national security intersects immigration.
    It seems to me that we suffer injunctions as a means of the judicial usurping executive powers because... congress won't do it's job, and has had that attitude for a very long time. As always, power abhors a vacuum, so here's one question: should representatives serve 3 year terms and at the same time prohibit anyone from being seated in congress for even one day over 12 years?

  • rinkimisra||

    It seems to me that we suffer injunctions as a means of the judicial usurping executive powers because... congress won't do it's job, and has had that attitude for a very long time. As always, power abhors a vacuum, so here's one question: should representatives serve 3 year terms and at the same time prohibit anyone from being seated in congress for even one day over 12 years http://periodictableofelements.net/
    http://periodictableofelements.....ity-chart/

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