Judiciary

Gorsuch Rebukes Lower Courts' Nationwide Injunctions

The Supreme Court justice appropriately and sternly addressed growing judicial overreach.

Nate Jackson · Jan. 28, 2020

In yet another 5-4 decision, the Supreme Court displayed that too many cases are decided by the ideological divide among the justices rather than Rule of Law. Fortunately, it’s not the five who got this one wrong. The originalist wing of the Court granted the Trump administration’s request for a stay against an injunction blocking its policy to deny U.S. entry to any alien who is “likely at any time to become a public charge.” America’s astounding level of generous benefits attracts illegals. Democrats know it, which is why they try so hard to stop the administration’s work to rein in the flow of illegals.

But it was less the merits of the ruling than the importance of comments made by Justice Neil Gorsuch that got our attention. In a blistering five-page concurrence, joined by Clarence Thomas, Gorsuch blasted judges in lower courts who routinely issue nationwide injunctions to obstruct the administration’s agenda. There have been 40 such injunctions during Donald Trump’s first three years in office — twice the number that were issued during Barack Obama’s entire eight years.

“Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois,” Gorsuch wrote. “But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is 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 continued, “When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.”

“It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice,” Gorsuch argued. “As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. … By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.”

Gorsuch concluded, “A single loss and the policy goes on ice — possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. What in this gamesmanship and chaos can we be proud of? I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”

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