The Judicial Injunction Dysfunction
By The Editorial Board
The Supreme Court said Friday that the Trump Administration can proceed to reallocate some $2.5 billion that Congress had earmarked for the Pentagon to build a border wall. We disagree with the policy, but the good news is that the High Court is finally sending a message about the proliferation of national injunctions by lower-court judges.
The Court voted 5-4 to overturn a national injunction issued by Judge Haywood Gilliam, a Barack Obama appointee, and upheld by the Ninth Circuit Court of Appeals. The order will let the government start spending the money to build the border barrier while the courts consider the legal merits.
Congress passed the money under Section 8005 of the Defense appropriations bill, and the Sierra Club sued (Sierra Club v. Trump). Judge Gilliam ruled that Congress had expressly refused to appropriate money for the wall and therefore the Pentagon can’t use the money to assist the government’s “counterdrug activities,” as the Administration had claimed it has the authority to do.
Judge Gilliam might be right on the merits, and we oppose the precedent of taking scarce resources from the Pentagon to fulfill a campaign promise unrelated to defense. One legal complication, however, is why the Sierra Club has standing to sue. It’s a private party that has shown no clear injury from the wall spending, though other litigants might.
Judge Gilliam’s larger legal offense is his quick trigger to issue a national injunction. These sweeping rules by individual judges have proliferated in the Trump years, with destructive consequences for policy debates and the reputation of the judiciary.
The Justice Department reports that, as of late May, federal district courts had issued 37 nationwide injunctions against executive actions by the Trump Administration. By our count the number is now at least 39. This compares with two such injunctions in the first two years of the Obama Administration, and both of those were vacated by the Ninth Circuit.
Progressives say this is justified by a lawless Trump Administration, but the injunctions are issued before the merits are decided. These legal stays are supposed to be issued only in the most extreme circumstances. Too often these days they are issued as a first resort and on mistaken legal grounds. A good example is the 2017 Trump travel ban, which was enjoined several times by lower courts and the Ninth Circuit but was upheld by the Supreme Court.
“These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch,” wrote Justice Clarence Thomas in his concurrence in the travel ban case.
“I am skeptical that district courts have the authority to enter universal injunctions,” the Justice added. “And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this [Supreme] Court must address their legality.”
Let’s hope this is the message the High Court is finally sending in the border funding case. The proliferation of national injunctions has inserted judges into policy debates in ways they should avoid and can sometimes pre-empt debate in the political branches where the issues should be settled. That’s precisely what happened when a judge issued an injunction against President Trump’s executive order in the DACA immigration case, reducing the incentive for Democrats to negotiate with Mr. Trump.
Lifting the injunction in the border case should also give the district court and Ninth Circuit an incentive to speed up a decision on the merits. Courts have been taking their sweet time on immigration cases, almost as if they hope to push the disputes past the 2020 election. These injunctions aren’t in the public interest, and the High Court needs to police them.