The Biden administration’s mask mandate for airplanes and public transportation might be going out with a whimper, rather than a bang. Asked about the decision by a U.S. district judge halting the mandate this week, President Biden was somewhat noncommittal about whether people should keep masking — “Up to them,” he said — and whether the federal government would appeal the ruling.
There’s certainly something to be said for Biden having this difficult political decision taken out of his hands (even as public opposition to this particular policy might be overstated).
But the method also matters: a single district judge in Florida effectively ending a policy nationwide. This is something — usually called a “national,” “nationwide” or “universal” injunction, or in this case technically a “vacatur” — that has happened with increasing frequency in recent years. And the trend has spurred a discussion about whether it’s good for our system of government for individual judges to wield such power so frequently.
The argument against it had been the territory of Democrats during the Obama administration, when Republican attorneys general sought and obtained injunctions to halt liberal policies they didn’t like, including protections for children of undocumented immigrants and transgender students. Then, with Donald Trump often stretching the authorities of the federal government in novel ways, it happened with even greater frequency during his administration: At various points, judges halted Trump’s travel ban, his withholding of funds from so-called sanctuary cities and his transgender military ban, among many others.
And now it comes for Biden’s policies.
Exactly how many such injunctions each administration has faced isn’t entirely clear. In 2020, Deputy Attorney General Jeffrey Rosen said Justice Department figures showed there were 12 such injunctions in eight years under George W. Bush, then 19 in eight years under Barack Obama, then at least 55 under Trump — but there is no question that such injunctions have increased substantially and quickly. In fact, some observers have ventured that there was no such thing before the 1960s, and even those who dispute that say only a handful of decisions could be construed as such in the early 20th century.
Rosen was among several top Trump appointees who decried the injunctions. So did two of Trump’s attorneys general, Jeff Sessions and later William P. Barr, who wrote a 2019 Wall Street Journal op-ed titled “End Nationwide Injunctions.”
Justices Neil M. Gorsuch and Clarence Thomas have also spoken against them. Gorsuch wrote in 2020, after the Supreme Court stayed an injunction of a Trump administration policy, that “these orders share the same basic flaw — they direct how the defendant must act toward persons who are not parties to the case.” National injunctions mean you can sue in one state, but it affects how the government must treat people who didn’t sue in other states.
A series of Biden’s policies have now also been halted, at least in part, including his priority system for immigration enforcement, his climate change cost estimates, his stimulus program for farmers of color and his vaccine mandates.
Even in halting the transit mask mandate on Monday, Trump-appointed judge Kathryn Kimball Mizelle took care to emphasize that her order was a vacatur (vacating an unlawful rule) and not a national injunction (granting relief). She noted that some legal experts describe vacaturs as less drastic and on more solid legal ground, but also that she shared concerns about judicial overreach.
“While the Court recognizes the criticism about nationwide injunctive relief and admittedly shares some of the skepticism about it … the weight of authority and judicial practice instructs that vacatur is an appropriate remedy for an [Administrative Procedure Act] violation,” Mizelle wrote. She said such a move was necessary because no other remedy would permit the plaintiffs to travel without having to wear masks.
Back in 2017, when the GOP-controlled House held a hearing on national injunctions, Notre Dame law professor Samuel Bray, a noted academic and national injunction critic, suggested that both parties had reason to stop this back-and-forth.
“Now, turnabout is fair play. In other words, whether you are Democrat or a Republican, sometime in the last three years your ox has been gored by the national injunction,” Bray testified. “My hope is that this bipartisan pain offers an opportunity. We do not have to be distracted by the latest national injunction. We can take a longer view. We can get the law right.”
Since then, neither Congress nor the Supreme Court has shown much desire to do something. In 2021, the Congressional Research Service published a report noting “[no] federal statute explicitly authorizes the courts to issue such injunctions, nor does any statute expressly limit their ability to do so, and the Supreme Court has not expressly ruled on the legality of nationwide injunctions.”
What complicates any discussion of this dynamic is not only the turnabout — i.e. injunctions hurt me before, but they help me now — but also how amorphous all of it is. We also lack good data; even the CRS report merely cited the Trump Justice Department’s numbers.
And it’s one thing to measure the trend on a quantitative basis — it’s another to evaluate it on a qualitative one. How many times, for instance, have national injunctions later been overturned for your side? And can you agree that the ultimate decision was even right?
For example, Rosen in his 2020 speech rejected the idea that Trump’s policies were so frequently halted because of how far they went. “Any assertion that there have been more unlawful [Trump] policies to challenge is belied by the Justice Department’s considerable success in having so many of these nationwide injunctions stayed or reversed on appeal,” he said.
But if there’s a circumstance where there could be some bipartisan momentum to consider doing something, perhaps it’s when both sides have relatively fresh memories of solo judges shelving their preferred policies.
Republicans showed some interest in this shortly after it helped them combat Obama’s policies — the GOP-run House Judiciary Committee in 2018 voted in favor of a bill to ban nationwide injunctions — and Democrats might suddenly, if gradually, be starting to see some benefits to revisiting the issue.
The mask mandate might not yet rise to that level for them — or for the Supreme Court, which could itself weigh in on injunctions’ validity — but it’s certainly a space worth watching, given the huge increase in judges nixing presidential policies.