If a judge concludes an executive order is unconstitutional, shouldn't a universal injunction be ok, at least in some circumstances? For example, the birthright citizenship EO seems like something that should be blocked nationwide. Otherwise, don't you have disparate, core constitutional rights based on the jurisdiction you live in? That would be an odd result. I'm not a lawyer, so maybe there are key parts of this issue I'm not understanding.
Bray addresses objections to his view at the end of his Multiple Chancellors article, if you're interested. He's all for uniformity between jurisdictions, but doesn't think that a single district court, acting alone, should settle the issue for the entire country. The issue should have to work its way up, be decided by different district courts in different circuits, eventually becoming circuit precedent that can quickly be applied to new cases seeking injunctive relief.
Think of it this way: in your scenario, for core constitutional rights to vary from jurisdiction to jurisdiction for any significant amount of time, it would require district courts coming to different results, and in turn being affirmed by their circuits, such that there's a genuine circuit split. But that would indicate that it wasn't such an easy issue and, had we had a system of nationwide injunctions, we may not have gotten that percolation, teeing up a hard issue as a circuit split. Obviously, that all seems absurd in the context of a clearly unconstitutional EO--but in that case, there still will be uniformity, it will just take a bit longer as cases are brought in different jurisdictions.
But there is still an underlying concern--relative to a nationwide injunction system, you're still forcing individual plaintiffs to go through the trouble of bringing a claim, even if their circuit has already decided the issue in their favor. I think that's a cost opponents of nationwide injunctions are willing to accept, though.
I think sometimes we get too excited to be policy wonks and we forget to speak clearly and honestly about what is happening around us.
I do not care about the scope of injunctions, to be frank. It's a ginned up battleground. Or, some of the battles of Trump 2.0 were destined to be fought here, and all the sides came with their rhetorical ducks in a row. But the outcome of this discussion is not our traditional 7 one way 5 the other American politicking over administrative procedure.
I care that congress will not legislate. That numerous things that could be congress's prerogative it just twiddles its thumbs or throws itself into deadlock, counting on the presidency to concoct a solution. Senator Schumer looked the American people in the eye and told them fixing this was not his job or congress's job; fingers crossed civil society will keep up and fill the gap!
I care that the American people have laid down their responsibility to govern at the feet of the judicial branch rather than being meaningfully politically engaged in the problems that matter, especially local ones.
I care that the political machine sustaining the Trump presidency wields maximum rhetorical power against all opponents at all times. He could pay and retain appropriate DOJ staff to make winning arguments and appropriately oppose these injunctions. He could advance policies that attract competent outside counsel. But he would rather gut most functions of the government and yell and scream that the haphazard implementation of his agenda is the product of a judicial cabal.
And the absolute raw fact of the matter is that Trump has enough power in his machine to win the fight on those terms.
What are we doing about THAT? Writing little notes about whether injunctions are too broad.
The judges, for what it is worth, are following the precedent that is available to them. And they are adjudicating the cases brought to them, and they are doing so earnestly, and regardless of what the political machines are spinning out, these cases are not easy to bring and win. Trump is winning cases, and there are cases that he is losing on the merits but the relief is being cabined, or delayed for further review. Whole sectors of American civil society are having to dump huge resources into arguing these cases, and even when the law is not on their side, the rule of law is. The precedents impacting injunctions may be changed or narrowed by the higher courts, and other interventions are possible from congress with appropriate and concerted review.
Rule of law is to take those steps and make that argument to the American people in honest ways. But that's not what Trump is tweeting, or what Stephen Miller is pressing about, or what Karoline Leavitt is preaching.
If a judge concludes an executive order is unconstitutional, shouldn't a universal injunction be ok, at least in some circumstances? For example, the birthright citizenship EO seems like something that should be blocked nationwide. Otherwise, don't you have disparate, core constitutional rights based on the jurisdiction you live in? That would be an odd result. I'm not a lawyer, so maybe there are key parts of this issue I'm not understanding.
Bray addresses objections to his view at the end of his Multiple Chancellors article, if you're interested. He's all for uniformity between jurisdictions, but doesn't think that a single district court, acting alone, should settle the issue for the entire country. The issue should have to work its way up, be decided by different district courts in different circuits, eventually becoming circuit precedent that can quickly be applied to new cases seeking injunctive relief.
Think of it this way: in your scenario, for core constitutional rights to vary from jurisdiction to jurisdiction for any significant amount of time, it would require district courts coming to different results, and in turn being affirmed by their circuits, such that there's a genuine circuit split. But that would indicate that it wasn't such an easy issue and, had we had a system of nationwide injunctions, we may not have gotten that percolation, teeing up a hard issue as a circuit split. Obviously, that all seems absurd in the context of a clearly unconstitutional EO--but in that case, there still will be uniformity, it will just take a bit longer as cases are brought in different jurisdictions.
But there is still an underlying concern--relative to a nationwide injunction system, you're still forcing individual plaintiffs to go through the trouble of bringing a claim, even if their circuit has already decided the issue in their favor. I think that's a cost opponents of nationwide injunctions are willing to accept, though.
I think sometimes we get too excited to be policy wonks and we forget to speak clearly and honestly about what is happening around us.
I do not care about the scope of injunctions, to be frank. It's a ginned up battleground. Or, some of the battles of Trump 2.0 were destined to be fought here, and all the sides came with their rhetorical ducks in a row. But the outcome of this discussion is not our traditional 7 one way 5 the other American politicking over administrative procedure.
I care that congress will not legislate. That numerous things that could be congress's prerogative it just twiddles its thumbs or throws itself into deadlock, counting on the presidency to concoct a solution. Senator Schumer looked the American people in the eye and told them fixing this was not his job or congress's job; fingers crossed civil society will keep up and fill the gap!
I care that the American people have laid down their responsibility to govern at the feet of the judicial branch rather than being meaningfully politically engaged in the problems that matter, especially local ones.
I care that the political machine sustaining the Trump presidency wields maximum rhetorical power against all opponents at all times. He could pay and retain appropriate DOJ staff to make winning arguments and appropriately oppose these injunctions. He could advance policies that attract competent outside counsel. But he would rather gut most functions of the government and yell and scream that the haphazard implementation of his agenda is the product of a judicial cabal.
And the absolute raw fact of the matter is that Trump has enough power in his machine to win the fight on those terms.
What are we doing about THAT? Writing little notes about whether injunctions are too broad.
The judges, for what it is worth, are following the precedent that is available to them. And they are adjudicating the cases brought to them, and they are doing so earnestly, and regardless of what the political machines are spinning out, these cases are not easy to bring and win. Trump is winning cases, and there are cases that he is losing on the merits but the relief is being cabined, or delayed for further review. Whole sectors of American civil society are having to dump huge resources into arguing these cases, and even when the law is not on their side, the rule of law is. The precedents impacting injunctions may be changed or narrowed by the higher courts, and other interventions are possible from congress with appropriate and concerted review.
Rule of law is to take those steps and make that argument to the American people in honest ways. But that's not what Trump is tweeting, or what Stephen Miller is pressing about, or what Karoline Leavitt is preaching.
Won't there be irreparable harm to parties with standing if the universal injunction is not speedily issued?