Question: What is the difference between God and a federal judge?
Answer: God knows that He isn’t a federal judge.
On Feb. 6, U.S. District Judge Loretta Biggs of North Carolina issued an injunction barring the Trump administration from implementing a new policy that changes how the government calculates the duration of an illegal immigrant’s unlawful presence in the country.
Although an injunction is the correct legal tool to stop someone from doing something, Biggs had a choice in how broad that injunction should be.
She could use an injunction that prevented the government from using the new calculation on the plaintiffs who sued, or she could use a so-called nationwide injunction that barred the government from using the new calculation against anyone, anywhere.
Biggs chose to issue a nationwide injunction. Actually, that’s a misnomer. These are better called “universal” or even “absent-party” injunctions, because they aren’t limited either by their geographic scope or the parties they cover.
Instead, they stop the government from enforcing a law or policy against anyone, anywhere.
These universal injunctions are controversial. U.S. Attorney General William Barr denounced them in a speech last May. Deputy Attorney General Jeffrey Rosen did so in a speech on Feb. 12, and Justices Clarence Thomas and Neil Gorsuch have criticized them as well.
So, what exactly are these strange things, and are they legal?
As always, it’s wise to start our analysis with the Constitution. The Constitution defines the judicial branch’s role in our system of government. Judges don’t pass laws or set broad policies, because that’s the job of the other branches.
Instead, according to Article III, judges decide “Cases” and “Controversies,” which are actual legal disputes between specific parties. Whether civil suits between private parties or criminal cases involving the government, these disputes are brought by the parties, and judges settle them for the parties.
It makes sense, therefore, that when a judge issues an injunction in the process of deciding a particular case, that injunction will not cover more than is necessary.
Historically, when a plaintiff successfully challenged a law as unconstitutional, for example, the judge would most often block the government from enforcing the law against the plaintiff, rather than completely wipe that law from the books.
But the judiciary has grown more powerful than America’s Founders intended and, since the 1960s, this has included issuing universal injunctions.
This type of injunction has become increasingly common over the past few decades as political activists try to enlist judges to make the kind of widespread policy changes that the legislative or executive branches are designed to handle.
Like a gavel thrown into a well-oiled machine, these universal injunctions cause a host of problems for our constitutional government—and for the judiciary itself.
First, they empower judges to exercise power over the entire government, rather than just the parties who brought a case before them.
Second, universal injunctions give individual district judges far more power than they ought to have. Even if 1,000 judges have upheld a law, or limited their injunctions only to the parties in specific cases, one granting a universal injunction means that the law cannot be enforced anywhere.
Third, they undermine public confidence in the judiciary by giving activists judges near limitless power to undo the laws and policies of the democratically accountable branches of government.
One infamous activist judge, the now-deceased Stephen Reinhardt, once joked of his lawless decisions that “they [the Supreme Court] can’t catch them all.”
Finally, universal injunctions lead to what Gorsuch calls “rushed, high-stakes, low-information decisions.” Oftentimes, judges issue universal injunctions at the beginning of a case, even before resolving legal and factual issues.
When that happens, the Justice Department often appeals on an emergency basis. That’s not good, because it doesn’t give the higher courts, including the Supreme Court, the time they need to make sure they get the answer right.
The Supreme Court, in particular, prefers to weigh in on a legal issue only after many lower courts, lawyers, and legal scholars have had time to discuss it. That debate sharpens the arguments and refines the issues. Emergency appeals, however, eliminate that.
The criticism of universal injunctions has reached a boiling point, and now it’s likely that the Supreme Court will step in. On Jan. 17, the Supreme Court accepted the case of Trump v. Pennsylvania.
One of the questions presented there is whether the court of appeals erred when it affirmed a universal injunction striking down regulations that would have allowed employers with sincere religious or moral objections to opt out of providing contraceptive coverage in employers’ insurance plans.
The high court should take this opportunity to end the practice of issuing universal injunctions. It should remind the lower courts that their power is limited to resolving cases and controversies, and that they are not gods sitting in judgment over the rest of the government.