Republicans in recent weeks have decried rulings from district court judges that halted some Trump administration actions, despite backing similar court actions during the last administration and enacting a law last month that gives states more power to ask judges to upend federal immigration policies.
President Donald Trump chafed at the restrictions from the judicial branch after a series of decisions this month related to the Department of Government Efficiency, telling reporters that cost-cutting efforts were “being hindered by courts where they file in certain courts where it’s very hard to win and a judge will stop us.”
It’s a familiar dynamic over more than a decade of partisan politics, and one that Republicans praised under the Biden administration. State attorneys general and activist groups on both sides of the aisle filed lawsuits against the federal government in what they think of as friendly courts and seek court orders blocking the incumbent administration’s policies.
Both Democrats and Republicans have said in recent weeks that it’s unlikely Congress will be able to pass legislation to curb nationwide injunctions — as either side would be giving up a courtroom tactic.
In the Biden administration, federal judges issued 14 nationwide injunctions through the end of 2023 in areas such as restricting government communications with social media companies, immigration and farm programs for farmers from minority groups, according to an article from the Harvard Law Review.
Back in 2021, Stephen Miller, who is now Trump’s deputy White House chief of staff, praised as “great news” a temporary restraining order, or TRO, issued by a Trump-appointed judge against the Biden administration’s 100-day moratorium on deportations.
But this month, Miller criticized “tyrannical” courts for orders indefinitely blocking many of Trump’s initial executive actions. “A single district judge cannot run the executive branch,” Miller posted on social media. “You won’t find district TRO in the constitution.”
Trump himself praised one of the injunctions against the Biden administration during a Florida event in 2023, calling a pause on federal communications with social media companies “a historic ruling” and praising the “brilliant federal judge” who issued the decision. The Supreme Court ultimately ruled against that injunction.
Sen. Christopher S. Murphy, D-Conn., said the Republican criticism of nationwide injunctions in the first weeks of the second Trump administration is “just rank hypocrisy.” In the Biden administration, Murphy said, “Republicans were bringing lawsuits in district courts all around the country and asking for nationwide injunctions, and now all of a sudden, it’s a fundamental injustice.”
Sen. Josh Hawley, R-Mo., said he doesn’t see the dynamic ending anytime soon outside of a Supreme Court ruling on the issue. “I don’t know what to predict there, other than that conservatives will become increasingly critical of them and return to our roots and not liking them,” Hawley said.
Utah Republican Sen. Mike Lee, in several posts on social media, accused judges of “an unprecedented assault on legitimate presidential authority.”
“Democrats are finding random judges willing to sabotage the legitimate exercise of executive authority by @realDonaldTrump,” Lee said.
In an interview, Lee said he thinks that nationwide injunctions can sometimes be justified and shouldn’t be banned entirely. “That’s why, rather than focusing on something like, ‘Oh, they shouldn’t be able to do that, we should strip their ability to do it,’ we have to look at ways to reforming it,” Lee said.
Lee floated the idea of a law that would require a three-judge panel to issue a nationwide injunction and allow for immediate Supreme Court review. That would be similar to one that Sen. Ron Wyden, D-Ore., offered last Congress that would require nationwide injunctions to be issued by three-judge panels. However, that legislation did not advance out of the Senate Judiciary Committee.
As to whether Republicans would remain so opposed to nationwide injunctions the next time a Democrat is in office, Lee was a bit circumspect. “Probably not, it’s the way things go,” Lee said.
Rulings
During the first Trump administration, Republicans spent years criticizing the use of nationwide injunctions by judges against Trump’s policies. They held hearings over the issue, and in 2018 the House Judiciary Committee advanced a bill to restrict the use of nationwide injunctions to the House floor.
After President Joe Biden took office, coalitions of Republican attorneys general and conservative groups filed dozens of lawsuits against government actions. Last year, Rep. Andrew Clyde, R-Ga., praised a ruling vacating a Biden-era rule restricting pistol braces as “Another HUGE 2A win!”
“We must use every tool at our disposal to fight Joe Biden’s tyrannical gun control agenda,” Clyde posted on social media.
Last week, Clyde posted on social media that he will draft impeachment articles against the judge who ruled against Trump’s freeze on federal grants and loans, calling the rulings “abusive overreach.”
The about-face comes after years of litigation brought by Republican attorneys general and conservative-aligned litigants, frequently in the rural Amarillo Division of the U.S. District Court for the Northern District of Texas, where they were guaranteed to receive Trump-appointed Judge Matthew Kacsmaryk.
Just in October, Trump himself chose to file a lawsuit in Kacsmaryk’s division against CBS over former Vice President Kamala Harris’ interview with “60 Minutes.” CBS pointed out that it is headquartered in New York and Trump is a Florida resident, and that the news agency didn’t do anything specifically about Texas with the interview.
“If this district has personal jurisdiction on the facts alleged, so too does every district court in the country. That is not the law,” CBS wrote in a court filing.
Last year, the Judicial Conference of the United States, the advisory body for the federal judiciary, adopted a policy that would have discouraged national groups from filing in courts where they could guarantee a certain judge.
The guidance would have courts change how they assigned cases with nationwide implications, such as federal rulemaking. If followed, the guidance would have cases assigned to a judge within an entire district rather than only within the division where the lawsuit was filed.
Then-Senate Minority Leader Mitch McConnell, R-Ky., and other Republicans opposed that policy change and sent a letter to district judges across the country advising them they did not have to comply. In a floor speech, McConnell characterized the guidance as part of Democrats’ partisan attacks on the courts.
“Here’s what this policy won’t do: It won’t solve the issues caused by nationwide injunctions. If Democrats are right about the practical effects of this policy, any remaining incentive they have to work with Republicans on this issue will vanish,” McConnell said at the time.
Following the guidance, both McConnell and then-Majority Leader Charles E. Schumer, D-N.Y., introduced their own legislation on judge-shopping and national injunctions. Neither advanced in the chamber.
Opposite way
Congressional Republicans already this year have given states more power to sue to block federal policy, as part of the immigration enforcement bill passed last month. A provision of the bill allows states to sue the federal government over perceived lack of enforcement of federal immigration law.
Rep. Jamie Raskin, D-Md., called the provision a “blatant violation of the separation of powers” in a floor speech ahead of the bill’s House passage.
“States can block federal immigration policies, totally capsizing the supremacy clause and expanding judicial power to encroach upon areas of complete executive discretion,” Raskin said, adding that the provision would have the effect of “dramatically shifting power from the executive branch to the judiciary and from the federal government to the states in constitutionally dubious ways.”
In the Senate, Republicans voted to reject an amendment to that bill from Sen. Chris Coons, D-Del., to strike the provision to authorize state attorneys general to bring civil lawsuits against the Department of Homeland Security. Trump signed the bill into law.
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