Op-Ed: Nationwide injunctions are wrong — even when they stop Trump

Opponents of President Trump’s agenda are celebrating a nationwide injunction against his plan to defund sanctuary cities, issued last month by a federal judge. They are also hoping similar rulings against Trump’s second travel ban are upheld in appeals courts this month.

But only a few months ago, liberals opposed such injunctions — because they were hobbling the Obama administration’s agenda. In 2015 and 2016, conservative plaintiffs obtained nationwide injunctions in Texas courts, holding back a host of Obama initiatives on immigration, transgender rights, labor regulation and other issues.

Liberals were right to criticize the sweeping nature of those injunctions. Even if the government policy was unlawful, the argument went, a nationwide ruling was improper because a single federal judge shouldn’t make nationwide law. A Texas judge, they argued, shouldn’t decide what the law is in New York.

Now that liberals are the plaintiffs and conservatives are the defendants, their arguments have flipped. But the issue at the heart of these cases — the appropriate role of the lower federal courts — remains the same. Nationwide injunctions were wrong then, and they are wrong now.

It’s a bedrock principle of the federal judiciary that lower federal courts, meaning all courts below the Supreme Court, don’t make nationwide law. There are 12 federal courts of appeal, each covering one region of the country. One circuit’s precedent isn’t binding for another. The same government policy can be invalidated in the 1^st Circuit but upheld in the 2^nd Circuit.

It’s set up this way because we want difficult questions of law to “percolate” among lower federal courts. As Judge Richard Posner of the 7^th Circuit has put it, rather than being decided conclusively by the first court to consider the issue, “a difficult legal question is more likely to be answered correctly if it is allowed to engage the attention of different sets of judges.” 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. 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.

It’s not a coincidence that the cases against Trump were brought in California, Washington and Hawaii — all part of the 9^th Circuit — and that the cases against Obama’s initiatives were brought in Texas, which is part of the 5^th Circuit. The 9^th Circuit is commonly perceived as the most liberal circuit in the country, and the 5^th Circuit is considered the most conservative.

Nor was it a coincidence that two challenges of Obama’s transgender policies were brought in the remote Wichita Falls Division of the Northern District of Texas. The only active judge in that division, and thus the judge likely to decide the case, had a history of skepticism toward LGBTQ issues. Both cases were indeed decided by that judge, and both policies were enjoined nationwide.

We can’t fault plaintiffs for acting strategically. Nevertheless, these tactics deepen the public perception that judges are partisan actors, which works to undermine the courts’ crucial role as a check on executive power.

A more prudent approach is for judges to limit injunctions to the borders of their regional circuit. One laudable example is the recent decision of a federal judge to strike down the travel ban, but to limit the injunction to the state of Virginia. She did this, the judge wrote, in part “to avoid encroaching on the ability of other circuits to consider the questions raised.” Similarly, a Wisconsin judge struck down the revised travel ban but limited the injunction to the family that filed the suit. These judges ensured that justice was done while honoring the geographic limits of the lower federal courts.

For those of us who oppose Trump’s agenda, this piecemeal approach might be a hard pill to swallow. We see nationwide injustice, and we want nationwide remedies. Sweeping injunctions may seem especially appropriate given that conservatives employed them so successfully to obstruct Obama’s agenda. In the long run, however, the structure and integrity of our federal courts are more important than the outcome of an individual case or two.

Most of the judges who examined Trump’s travel bans ruled them invalid. And yet Trump was able to characterize their repudiations of his policy as the work of two jurists run amok. When policies are unlawful, we should welcome the opportunity for more judges, not fewer, to say so. A chorus is better than a solo.

Getzel Berger is a law student at New York University School of Law and the author of “Nationwide Injunctions Against the Federal Government: A Structural Approach,” forthcoming in the NYU Law Review.

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