- The Washington Times - Tuesday, February 27, 2018

When President Obama announced his expanded deportation amnesty in 2014, then-Texas Attorney General Greg Abbott sought out the federal district court in Brownsville to file a groundbreaking lawsuit arguing that the president had violated the Constitution.

The choice of Brownsville was no accident. Legal analysts said the small courthouse had just two judges, one appointed by President Clinton and the other by President George W. Bush. It was a 50-50 chance.

The Bush pick, Judge Andrew S. Hanen, got the case and eventually issued a nationwide injunction halting Mr. Obama’s program across the country.

Nationwide injunctions from district courts had happened before, but Judge Hanen’s decision seemed to unleash the floodgates, opening up an era of judges in courtrooms across the country issuing huge rulings blocking major parts of a president’s agenda.

Under Mr. Obama, rulings blocked the Labor Department’s overtime pay rule, the Education Department’s transgender bathroom policy, and health care rules regarding “gender identity” discrimination.

Fast-forward to President Trump. In just his first year, district judges issued nationwide injunctions on his travel ban, refugee policy, phaseout of the Obama-era DACA amnesty, efforts to speed up deportations of Iraqis, stripping of federal grants from sanctuary cities, attempts to change Obamacare’s contraceptive coverage and moves to reinstate a ban on transgender troops.

“It wasn’t a major political weapon for stopping a president’s program until late in the Obama administration, and that’s when state Republican attorneys general started using it, so it’s only been in the last three years that it’s become a major judicial weapon against presidential programs,” said Samuel Bray, a law professor at the University of Notre Dame who studies the issue.

Legal analysts said district courts traditionally kept their rulings modest, limiting their relief to the plaintiffs who filed lawsuits in their courtrooms.

Indeed, a number of the 12 judicial circuits — which oversee 94 district courts — had shown great skepticism of allowing nationwide injunctions that impact millions of people, not just the parties named in a specific case.

That has unraveled in the past few years.

Both the 4th and 9th circuits overcame reticence to uphold nationwide injunctions on Mr. Trump’s travel ban. They used Judge Hanen’s ruling as precedent, saying national injunctions were “especially appropriate in the immigration context.”

But Judge Hanen’s ruling has also been cited by a federal court in Pennsylvania, blocking the administration’s efforts to create a religious exemption for employers who object to offering contraceptive coverage under the Affordable Care Act.

A federal court in Texas also used Judge Hanen’s ruling to justify a halt to Mr. Obama’s overtime pay regulation in 2016.

The difference between a narrow ruling and a national injunction can be massive.

For example, judges in San Francisco and Chicago, who ruled against Mr. Trump’s policy against sanctuary cities, could have applied their injunctions only to those cities. But they instead granted nationwide injunctions, meaning sanctuaries that weren’t plaintiffs were also affected.

Same with judges in Hawaii and Maryland, who blocked Mr. Trump’s travel ban throughout the country rather than just carving out exceptions for the specific plaintiffs who sued in their courtrooms.

Those Hawaii and Maryland rulings were later limited by a Supreme Court seemingly skeptical of the expansive antipathy that the judges showed to the president’s national security powers.

Howard Wasserman, a law professor at Florida International University, said courts are straying beyond their traditional roles of settling disputes between the two parties in front of them.

“A court is supposed to give a remedy that offers the plaintiff relief, and so the relief in a constitutional case is that the government is enjoined from enforcing that constitutionally defective law against that plaintiff,” said Mr. Wasserman.

Mr. Bray argues that there is no rule prohibiting national injunctions, but there is also no rule authorizing them.

The U.S. Constitution gives courts the authority to decide disputes between parties, and once they reach a conclusion, that’s it, Mr. Bray said.

He traced the first nationwide injunction to a case in 1963 out of the District of Columbia involving the secretary of labor’s established minimum wage.

With D.C. being the seat of most federal agencies, a nationwide injunction perhaps made sense from the district court there.

But states that oppose the party in the White House have since gone shopping for other venues to lodge their cases, seeking courts where they are likely to find friendly judges.

For anti-Trump attorneys general, that means the 9th Circuit based in San Francisco, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam.

Paul Nolette, a professor at Marquette University, said the practice is bad for the legal system.

“It just escalates the partisanship that’s already creeped into the judicial system by making the partisan considerations even more prominent in how the AGs go about their jobs,” he said.

But Amanda Frost, a law professor at American University, argues that judges are making a positive change by expanding their claims of jurisdiction.

“Such injunctions are at times the only way to provide complete relief to plaintiffs. For example, if a single African-American plaintiff sues seeking desegregation of a public school, an order requiring the school district to admit only that plaintiff will not alleviate her injury,” she wrote for SCOTUSBlog this month.

Mr. Bray said the practice is leaving the Supreme Court with less to review when it takes up a case, instead of going through the normal process of waiting for issues to percolate among circuit courts before it delves into settle disputes.

“It has to decide cases faster, with less evidence, and without conflicting views, which is a recipe for bad judicial decision making,” said Mr. Bray.

Some legal analysts say the Supreme Court could eventually step in and limit the scope of an injunction to only control parties listed on the lawsuit, eliminating the rush to issue nationwide injunctions by lower courts, impacting the country as a whole.

Mr. Bray said this could be done in an opinion like the one addressing Mr. Trump’s travel ban. Though, it’s unclear if the justices will go that far in their ruling, which is expected by the end of June.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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