Should a single judge at the lowest level of federal court be able to strike down a law applying to all 327 million Americans?
There are three levels of federal courts, where constitutional challenges to laws, executive orders, and agency regulations are considered. While few dispute the Supreme Court (the highest level) right to strike something down as unconstitutional, the surging practice of judges on district courts (the lowest level) doing the same is proving increasingly controversial.
Left-leaning judges have struck down a number of Trump Administration rules and executive orders, including a ban on travelers coming to America from seven countries, removal of federal money from sanctuary cities that refuse to cooperate with immigration enforcement, and a reinstatement of a ban on transgender service members in the military.
For example, while a San Francisco judge ruled Trump’s sanctuary city policy unconstitutional, they didn’t only prevent it from being enforced in San Francisco, but _every _sanctuary city in America — including some who hadn’t even sued over its legality in the first place.
The practice has gone the other way ideologically, too. Conservative judges at the district court level struck down Obama-era rules from the Education Department about bathrooms for transgender students and from the Labor Department expanding overtime pay.
What the bill does
The Injunctive Authority Clarification Act would prevent any district court judge from issuing a nationwide injunction and striking down a law across the whole country. Only a circuit court or the Supreme Court would be able to do so.
It was introduced in the House on January 3 as bill number H.R. 77 by Rep. Andy Biggs (R-AZ5).
What supporters say
Even writers at left-leaning publications including The Atlantic and the Los Angeles Times_ _have suggested the policy of nationwide injunctions has become too frequent in recent years, going against the whole purpose of that level of the judicial system.
“We want difficult questions of law to ‘percolate’ among lower federal courts,” Getzel Berger, author of an NYU Law Review article on the subject, wrote in a_Los Angeles Times_ op-ed. “Lower court percolation fosters dialogue about the law, which leads to more reasoned and durable decisions in the long term. Nationwide injunctions cut this process short by preventing other courts from weighing in.”
“Concentration of power in the hands of a single judge also promotes gamesmanship by plaintiffs,” Berger continued. “When they know that the first judge to hear a case might have the final word on an issue, plaintiffs steer cases to specific circuits, specific districts and even specific judges in the hopes of finding a receptive audience. Indeed, Trump wasn’t wrong when he accused his critics of ‘judge shopping’ for nationwide injunctions.”
What opponents say
Opponents counter that nationwide injunctions are often necessary, as the best means to effectively address a nationwide issue.
“Sometimes such injunctions are essential to avoid injury to the thousands of people affected by government action who cannot quickly file suit themselves, or who could not easily be included in a class — as was the case in the travel-ban litigation,” American University law professor Amanda Frost wrote for_SCOTUSblog_.
“In some cases anything short of a nationwide injunction is simply impractical,” Frost continued. “When a district court is asked to pass on the validity of an agency rule with nationwide effects — such as one affecting the air or water — it would be extremely difficult to enjoin application of the rule to some plaintiffs but not others.”
Odds of passage
The bill has not yet attracted any House cosponsors — curious, considering that the vast majority of House Republicans would seemingly be in support. Perhaps it may be because lead sponsor Rep. Biggs has been doing little to no promotion, eschewing a press release on the subject as is traditional for most Congress members upon introducing a new bill.
It awaits a potential vote in the House Judiciary Committee.