The Republican bill would increase the odds of the conservative Supreme Court overruling left-leaning “nationwide injunction” decisions by a lower court.
The Supreme Court can declare laws, executive orders, or regulations as unconstitutional nationwide. Lower level district courts can do the same, but traditionally the ruling is appealed by the losing party. It’s generally not the final decision, unless a higher court declines to take up the case.
In other words, the law usually wasn’t actually struck down by a district court — it was just a preliminary ruling. So the law (or executive order or regulation) itself would still remain in effect in the meantime.
Until recently. The concept of the “nationwide injunction,” in which a district court rules that a law is not only unconstitutional but immediately prevents its enforcement nationwide, was virtually unused throughout American history. It was a “break glass in case of emergency” option, only supposed to be done in the absolute most extreme of circumstances. The first documented one didn’t occur until 1963.
Yet the practice has skyrocketed in recent years, starting with conservative district court judges during President Obama’s second term, and continuing with left-leaning district court judges during President Trump’s presidency.
Among the examples during Trump’s presidency included district court nationwide injunctions on Trump’s ban on travelers coming to America from seven countries, on Trump’s removal of federal money from sanctuary cities that refuse to cooperate with immigration enforcement, and on Trump’s reinstatement of a bar on transgender service members in the military.
The current Supreme Court unquestionably leans right. Conservatives hold, at minimum, a 5–4 majority. If one counts swing vote Chief Justice John Roberts, conservatives hold a 6–3 majority.
What the bill does
The Court Shopping Deterrence Act would allow any nationwide injunction issued by a district court to be appealed immediately to the Supreme Court, bypassing the intermediate appeals court level.
In theory, this could be done for either left-leaning or right-leaning nationwide injunction decisions. In practice, this would increase the odds of the conservative Supreme Court overruling left-leaning nationwide injunction decisions by a district court. And vice versa, increasing the odds of the Supreme Court upholding a conservative nationwide injunction.
It was introduced in the House on February 5 as H.R. 893, by Rep. John Rose (R-TN6).
What supporters say
Supporters argue that the concept of nationwide injunctions should ideally be ceased entirely, since it allows one judge in one district to set a rule for the entire country, but that as long as the practice exists there should be a bypass mechanism for the one truly national court to issue its ruling.
“Nationwide injunctions impact every one of us. It is a harmful trend and a practice that must be stopped,” Rep. Rose said in a press release. “Broad injunctions have unfair and detrimental effects… It is wrong for an administration, Republican or Democrat, to be forced to reaffirm and defend their lawfully-made decisions time and time again.”
“The practice of special interest groups seeking out judges who are sympathetic to their causes and through legal battles attempting to stall government policies has plagued the current and past administrations,” Rep. Rose continued. “This unfair maneuvering is often successful because of the potential years-long wait for national injunctions to be adjudicated… We must curtail this harmful practice.”
What opponents say
Opponents counter that nationwide injunctions are sometimes necessary, even at a district court level, because the immediacy of certain judicial issues can’t wait for the sometimes years-long journey up to the Supreme Court.
“President Donald Trump issued an executive order barring millions of people from entering the country. The order went into effect immediately,” Spencer E. Amdur & David Hausman wrote for the Harvard Law Review. “It stranded hundreds of people in transit and led to the cancellation of 60,000 valid visas. People were being put back on planes and about to be deported, and only a small fraction could make it into court in time.”
“But within days, two judges issued nationwide injunctions blocking the order,” Amdur and Hausman continued. “Without them, most affected people would have been deported, lost their visas, and been kept from work, family, and study, all pursuant to a policy that the government ultimately chose not to defend. When a policy threatens widespread irreparable harm, most people will never be fully protected without broad preliminary relief.”
Odds of passage
A 2019 version attracted 12 cosponsors, all Republicans. It never received a vote in the House Judiciary Committee.
The current version has attracted a slightly smaller seven cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee. Odds of passage are low in the Democratic controlled chamber.