In a speech yesterday to a Federalist Society group, Vice President Mike Pence vowed that the Trump administration would soon challenge the anti-republican, anti-constitutional travesty of district court judges issuing “nationwide injunctions” that allow a lone lower court judge to seemingly halt an entire federal government program. Pence said:
The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them. And it’s imperative that we restore the historic tradition that district judges do not set policy for the whole nation. In the days ahead, our administration will seek opportunities to put this very question before the Supreme Court to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land.
Pence is completely correct. Indeed, the only question is why the administration, which has been hamstrung by self-aggrandizing judicial #resistance malfeasants the likes of which no prior presidential administration has encountered, has not vowed to fight back sooner against such recalcitrant black-robed tyranny. The harrowing rise of the “nationwide injunction” judicial phenomenon, which cannot be separated from the pusillanimous capitulation of our broader legal culture to the utter lie that is judicial supremacy, poses one of the most acute problems in the way of the conservative project of recalibrating and restoring our original constitutional order. Conservatives ought to unreservedly cheer the Trump administration’s apparent decision to place this sovereignty-sapping practice in its proverbial crosshairs.
Let’s start with first principles.
“The judicial power” of which Art. III of the U.S. Constitution speaks, established, in the Hamiltonian formulation of The Federalist No. 78, “the least dangerous” of the three branches of the federal government. And the “judicial power,” as outlined in Art. III § 2 of the Constitution, “extend[s] to all cases … [and] controversies” that “aris[e] under this Constitution, the laws of the United States, and treaties made, or which shall be made.” In order that there be a valid “case” or “controvers[y]” under Art. III, there must be proper standing — which the U.S. Supreme Court outlined in the 1992 case of Lujan v. Defenders of Wildlife as consisting of (1) an injury-in-fact, (2) a causal connection between the injury and the conduct brought before the court, and (3) a likelihood of redressability by a court. In addition to standing, there are also similar threshold questions such as justiciability and ripeness.
The careful observer will note that the inquiry as to whether there is a proper “case” or “controvers[y]” under Art. III necessarily only pertains to the named plaintiff in a lawsuit. It is, by definition, impossible for judges to undertake the necessary threshold inquiries — as to standing, justiciability, ripeness, and so forth — for prospective plaintiffs who are not before the tribunal in a given lawsuit. As Daniel Horowitz wrote two years ago, “Courts decide particular cases for particular parties. They do not decide abstract questions for all possible parties.” Abraham Lincoln’s magisterial First Inaugural Address encapsulated this sentiment, couching it in the broader backdrop of republican self-governance: The Great Emancipator aptly stated that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
A closely related point is that, from a formalist perspective, the concept of a “facial challenge” — in which a plaintiff claims that a statute is here, there, and everywhere constitutional as applied to everyone — is a legal fiction. If we take the “case” or “controvers[y]” requirement of Art. III seriously, then there is simply no such thing as anything other than a constitutional claim that a statute, as idiosyncratically applied to the named plaintiff in a lawsuit, is unconstitutional and ought to have its enforcement enjoined by a court with proper jurisdiction. To speak of judges “striking down laws,” therefore, is necessarily a misnomer — and a deeply pernicious and corrosive misnomer, at that. As Jonathan Mitchell argued last year in an incisive Virginia Law Review article, “[j]udicial review is not a power to suspend or ‘strike down’ legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.”
Justice Clarence Thomas, likely the most authentically originalist jurist to ever sit on the U.S. Supreme Court, objected to “nationwide injunctions” in a stirring concurrence last year in the “travel ban” case of Trump v. Hawaii. As Thomas observed, no congressional statute expressly grants federal judges the authority to issue “nationwide injunctions” as remedies, and there is similarly no historical Anglo-American tradition of equitable relief that would permit such a broad, all-encompassing remedy. As Thomas wrote, “[t]hese injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.” Furthermore, “[f]or most of our history, courts understood judicial power as fundamentall[y] the power to render judgments in individual cases.”
The “nationwide injunction” may be appealing to functionalists and pragmatists who value uniformity and normatively object to the disaggregated and sometimes fractious system that the Framers devised. But, as Thomas said in Hawaii, “no persuasive defense has yet been offered for the practice,” as a legally formalist matter. And as Samuel Bray wrote in a 2017 Harvard Law Review article that remains the definitive — and, as far as I (and apparently Justice Thomas) can tell, unrebutted — argument against the practice’s constitutionality, the “nationwide injunction” is a “relatively new innovation, without any basis in traditional equity,” and is therefore outside the inherent constitutional scope of “[t]he judicial power” of which Art. III speaks.
As Bray concluded:
Power in the American political system is pervasively divided — through federalism, through the separation of powers, and through the sprawling system of federal courts. A legal question is resolved through patience and the consideration of many minds. Which system is better, if starting from scratch, is a difficult question. The question of which system obtains in the United States is easy to answer: a fragmented, many-minds system. In a system like ours, there is no room for the national injunction.
In other words, as James Madison, the foremost author of the Constitution, said in The Federalist No. 51: “Ambition must be made to counteract ambition.” That is the genius of our system of governance.
Good for Mike Pence and the Trump administration.