ICYMI: ELIZABETH PRICE FOLEY: A Supreme Court Remedy for Nationwide Injunctions: Congress gave the Supreme Court the authority to curb them by clarifying the Rules of Civil Procedure.
Federal trial judges blocking presidential acts via nationwide injunctions are creating a serious conflict between the executive and judicial branches. The flood of such injunctions provoked President Trump to take to social media and call for the impeachment of a judge who issued a temporary restraining order. Chief Justice John Roberts responded in a statement to reporters that impeachment is inappropriate and the administration should rely on “the normal appellate review process.” Unsatisfied, Mr. Trump wrote on Thursday: “Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country! . . . If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!”
There is something the justices can do to rein in nationwide injunctions: exercise their authority under the Rules Enabling Act of 1934 to amend the federal rule on injunctions.
The recent outbreak of nationwide injunctions damages our constitutional system. They were almost unheard of before the 1960s. Only 12 were issued against George W. Bush and 19 against Barack Obama during each of their two terms. Joe Biden faced 28. Mr. Trump faced 86 during his first term, almost all issued by Democrat-appointed judges. Two months into his second term, more than 15 have already been issued.
Because nationwide injunctions often appear politically motivated, they create cynicism about the courts and the law. Worse, they enable lower-court judges to thwart the president’s Article II authority even in national security and defense. Lawmakers have introduced bills to halt nationwide injunctions. One recently passed the House Judiciary Committee and will likely pass the full House—then go to the Senate to die in a filibuster. . . .
An amendment to Rule 65 couldn’t take effect until Dec. 1. But once proposed—by May 1, as required—it would likely have an immediate, beneficial chilling effect on rogue judges. For the sake of the Constitution, the court should act quickly.
Yes, it should.
