“Something has powerfully gone awry,” U.S. Solicitor General Elizabeth B. Prelogar told the Supreme Court this week. “This is not how our constitutional structure is supposed to operate.”
Flagrant, but not unusual. One day later, a different Trump-appointed judge, in Louisiana, prohibited the Biden administration from implementing its plans to lift the pandemic border policy known as Title 42. The order is temporary, but the judge has signaled his intention to require the administration to keep in place the public health rule preventing migrants seeking asylum from entering the country.
The week before, yet another Trump appointee, this one from Florida, vacated the Biden administration’s mask mandate for public transportation.
Judicial review of agency decisions or executive orders is not just permissible; it is a fundamental component of the rule of law. Federal courts served as an important bulwark against executive branch excesses throughout Donald Trump’s presidency. “The administration’s record in the federal courts remains gratifyingly dismal,” I wrote in a column toward the end of the Trump administration.
So it’s fair to ask: Is this just griping about decisions I don’t like from judges with a judicial philosophy I don’t share? I don’t think so. Something different is going on here.
The shift is built on a phenomenon that took off during the Trump administration but has persisted during the Biden presidency: the use of nationwide injunctions — orders issued by a single district court, often strategically chosen for the likelihood of finding a sympathetic judge, that apply beyond the immediate parties in the case to completely block an administration policy.
Now, however, that willingness to halt executive action has been harnessed to the radical anti-regulatory stance endemic among Trump-appointed federal judges. They have routinely evaded the rule that courts should defer to the expertise of administrative agencies, insisted that Congress speak with clairvoyant precision to authorize a regulation and transformed textualism from sensible interpretive method into an excuse for intervention.
Taken together, these developments offer supposed conservatives — those who profess to believe in judicial restraint — the ability to weaponize the federal judiciary to hobble the Biden administration.
Conservatives loathed these nationwide orders, and many liberals welcomed them, when they were deployed to frustrate the Trump administration, from blocking his travel ban to preventing him from removing protections for immigrant “dreamers.”
A nationwide injunction, then-Attorney General William P. Barr warned in 2019, “gives a single judge the unprecedented power to render irrelevant the decisions of every other jurisdiction in the country.” The next year, Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, decried the “increasingly common practice of trial courts ordering relief that transcends the cases before them,” arguing it creates “a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.”
Somehow conservatives’ complaints have been muted with a Democratic administration in office. In the “Remain in Mexico” case argued this week, the justices refused the Biden administration’s earlier entreaty to lift a district judge’s order that it reinstate the Trump policy. It’s hard to square that with the court’s willingness to intervene when a different district judge blocked “Remain in Mexico” from taking effect. What’s the difference, exactly, other than that one policy was adopted by a Republican president and one by a Democrat?
Combine this with conservative judges’ antipathy to regulation, and you have a recipe for judicial activism. This was on florid display in the mask mandate case. The judge strained to ignore statutory language authorizing the Centers for Disease Control and Prevention to take steps “as may be necessary” to limit contagion. She adopted a particularly cramped interpretation of the law’s provision allowing for “sanitation” measures. She found the CDC had no power to take such a “major” step as requiring passengers to mask up.
For good measure, she wrote that despite “the criticism about nationwide injunctive relief” and her own “skepticism” about such edicts, she was obligated to issue an order affecting every single passenger in the country. “How is the ride-sharing driver, flight attendant, or bus driver to know someone is a Plaintiff to this lawsuit with permission to enter mask-free?” she asked.
Oh please. A rule is enjoined nationwide because a few people said wearing masks made them panicky?
The “Remain in Mexico” case featured similarly tortured textualism. Federal immigration law provides that migrants not immediately eligible for entry “shall be detained” while their status is being decided. But no administration, Republican or Democrat, has ever detained every such person. There simply aren’t enough beds.
Another provision states that immigration authorities “may return” asylum seekers to Mexico while their cases are being decided. Lower courts in the case, ignoring reality and rewriting language, insisted that “may” means “must.” The administration, they said, had a simple choice: Either detain would-be entrants or return them to Mexico. But, as Prelogar told the court, “on this reading, every presidential administration, in an unbroken line for the past quarter-century, has been in open violation” of the law.
Even more worrisome, as Justice Elena Kagan pointed out, the lower courts’ rulings put judges in charge of foreign affairs and immigration policy. “It puts the United States essentially at the mercy of Mexico,” she observed. “Mexico has all the leverage in the world to say: Well, you want to do that? You want to comply with the court’s order? Here are 20 things that you need to do for us.”
Conservatives have lectured us for years that judges shouldn’t be substituting their own policy preferences and that courts should be respectful of presidential authority, especially when it comes to foreign affairs.
Something has powerfully gone awry, indeed.