Universal Injunctions, Congressional Capacity, and Filibuster Reform

Today I participated in a Rappaport Forum discussion at Harvard Law School titled "Rule by One Judge: The Question of Universal Injunctions." My fellow participant was Professor Mila Sohoni, and our moderator was Professor Guy-Uriel Charles. It was an excellent discussion, and you can watch it here.

Two of the students who attended sent me this very interesting note afterwards, which I am posting with their permission:

Today at Harvard Law School's Rappaport Forum, Professor Guy-Uriel Charles moderated a fantastic conversation between Professors Mila Sohoni and Sam Bray on the legality of "universal injunctions." To highlight the real world stakes of the debate, Professor Charles asked the panelists why there's been a sudden uptick in universal injunctions in recent years. The answers highlighted the link between the increasing prominence of federal courts and the dysfunction of Congress.

Professor Sohoni pointed to the phenomenon of "old statutes, new problems" as one of the key drivers behind the recent spike. As she put it, we have to consider nationwide injunctions against the executive's "background level of illegality." As Congress fails to legislate on the issues that matter most, federal agencies step in to fill the void—often with only a tenuous claim to statutory authority.  Hence the uptick in controversial rules—and attendant universal injunctions—in matters relating to topics like gun control and contraception.

Professor Bray expressed concerns about the anti-democratic nature of universal injunctions: after all, a single district court judge places the policy priorities of a duly elected president on hold. If one shares Professor Bray's concerns, then one should think critically about reforming Congress so that it can live up to its legislative responsibilities. If Congress were capable of legislating once again, it would pass new statutes  to respond to new problems. There'd be less of a need for agencies to interpret outdated statutory authority in novel, aggressive ways. As a result, there'd be fewer occasions for single district judges to issue universal injunctive relief that places presidents' policy agendas on hold.

There's no single fix to Congress's retreat from relevance. In this fall's issue of National Affairs, we proposed one: reforming the Senate filibuster. Our proposal is simple: if the Senate can't clear a 60-vote supermajority threshold, it should instead just have to clear a simple majority threshold twice, with an election in between. As we explain in the article, this reform would empower Congress to legislate a bit more on the issues that matter, while also enhancing deliberation. It might even improve the overall tenor of our politics.

Turns out our proposal might also help make universal injunctions less frequent and less consequential.

Thomas Harvey & Thomas Koenig are students at Harvard Law School. Follow them on Twitter @Tom_Harvey94 and @thomaskoenig98.