Dear Reader,

Every single time the Trump administration loses a court ruling, count on this: they’ll rail against the evils of a single, unelected district court judge upending the president’s policy agenda. 

This week, a district judge in DC temporarily blocked Trump’s ban on transgender military troops. “Indefensible judicial tyranny,” White House advisor Stepehen Miller responded on social media. 

Another judge put a hold on the deportation of non-citizens under the Alien Enemies Act (or, tried to; the Trump administration was less than fastidious in implementing his order). Trump called for the impeachment of this “Radical Left Lunatic of a Judge, a troublemaker and agitator,” prompting a rare public rebuke from Chief Justice John Roberts. 

A string of federal judges paused the efforts of Elon Musk and DOGE to fire federal employees and dismantle government agencies. “What is the point of having democratic elections if unelected activist ‘judges’ can override the clear will of the people? Well, that’s no democracy at all!” Musk asked himself and answered, re-circulating a post invoking a “JUDICIAL COUP.”  

The public rhetoric from Trump and his brass has become overwrought, and they seem to be dueling to out-emote one another. But when you strip away the histrionics, they’re not wrong. 

The argument against these so-called “nationwide injunctions” has plenty of commonsense appeal. We have 700 or so presidentially-nominated, Senate-confirmed (but unelected) federal district court (trial-level) judges in all, divided among 94 geographic districts. Why should any one of those judges in, say, the Northern District of California or the Western District of Texas have the power to dictate policy across the entire country, contrary to the priorities of the duly elected president? 

Trump is hardly the first president to see his policy agenda stifled by nationwide injunctions – though this is a relatively recent phenomenon, and he’s gotten it the worst. An April 2024 Harvard Law Review article calculated that federal judges issued 6 nationwide injunctions against the George W. Bush administration; 12 against the Obama administration (including its signature immigration programs); 14 against the Biden administration (including the student loan debt forgiveness program); and… 64 against the first Trump administration. 

Of those 64 original Trump-era injunctions, 59 came from judges appointed by Democrats. Before you start howling (or cheering), consider that all 14 Biden-era injunctions were issued by Republican-appointed judges. Indeed, one criticism of nationwide injunctions is that they encourage and reward judge-shopping. There’s a reason why so many of the anti-Obama and anti-Biden injunctions came from the Northern and Western Districts of Texas, while liberal anti-Trump plaintiffs flock to the federal district courts in DC, New York, and California.  

Now, during Trump’s first two months back in office, district court judges have already issued more than a dozen nationwide injunctions blocking his policy initiatives. He’s on pace to shatter his own world record.  

We can read these stats either way. From one perspective, it looks like judges (almost all of them nominated by Democratic presidents) have engineered a successful judicial Trump Resistance where actual elected Democrats have failed. Or the stats could simply reflect that Trump has tried to enact more unlawful policies than his contemporaries did. Could be both.  

The conundrum is that nationwide injunctions are easy to criticize but hard to fix. What’s the alternative? Impressive thinkpieces abound, often voicing the valid complaint that judges who issue nationwide injunctions effectively bind not only the actual parties to the lawsuit but also many outside non-parties, contrary to core tenets of judicial moderation and fairness. 

But solutions are elusive. If each district court can reach its own independent ruling, binding only on the participants in that case, we’d land in chaos. 

What if, for example, one district judge ordered a pause on the military transgender policy but another allowed the policy to be implemented? What if eleven judges across the country purported to block Trump’s effort to withhold federal funding from USAID, but nine others ruled to the contrary? It’s unworkable. 

There might be some way to get these cases up the appellate chain more quickly. That could help expedite resolution of inter-district conflicts, but it doesn’t fully solve the underlying problem of inconsistent applications of law based on geography (and it would require a complicated fix that is plainly not imminent).  

The good news is that we might soon get some guidance from the Supreme Court itself. The dispute over Trump’s effort to end Birthright Citizenship has now reached the Court, at least in a procedural posture. The Trump administration has asked the Court to narrow a series of three district court rulings that rejected his position, and to hold that those decisions apply only within the geographic districts in which they were rendered (and do not, therefore, bind the entire country). “Universal injunctions have reached epidemic proportions since the start of the current administration,” Trump’s legal team argues. 

We know how at least one of the nine justices feels. When Samuel Alito found himself on the short end of a recent ruling that effectively blocked the Trump administration’s effort to withhold foreign aid funding, he fumed in dissent: “Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?… I am stunned.”

The Birthright Citizenship case may provide us with meaningful answers, but it also neatly underscores the practical problems. Even if one agrees with the Trump administration’s position, how exactly would this work? Children born to non-citizen parents in the Western District of Washington (where a Reagan-appointed judge temporarily halted Trump’s Birthright Citizenship initiative) are citizens – while those born in, say, the Eastern District of Louisiana are not? 

It’s become a default diversionary tactic to rail against nationwide injunctions. Don’t like a ruling? Point to the dictatorial, unelected judge usurping the president’s power. Tiptoe up to the line of open defiance of a court order? Blame some unelected, self-aggrandizing political wannabe in a black robe. 

But when we cut through the hyperbole and the transparent scapegoating, Trump and his supporters are on to a legitimate complaint that has dogged presidents of both parties for decades.  

Stay Informed,

Elie