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Justice Gorsuch Compared Nationwide Injunctions to the One Ring From ‘Lord of the Rings’
Justice Neil Gorsuch invoked J.R.R. Tolkien’s tri-part epic “The Lord of the Rings” in a Monday concurrence that suggested the Supreme Court may need to curtail the use of nationwide injunctions.
Gorsuch likened nationwide injunctions to the One Ring, an artifact of malevolent power whose destruction is the driving action of Tolkien’s saga. The justice alluded to the ring as he reviewed the history of litigation regarding the Trump administration’s public charge rule, which will take effect after the high court lifted two injunctions entered against it Monday afternoon.
A lengthy inscription on the band proclaims that the One Ring shall “rule them all.” Gorsuch found that domineering promise an apt descriptor for nationwide injunctions, which remain in force regardless of the outcome of other lawsuits on a given subject.
“Despite the fluid state of things — some interim wins for the government over here, some preliminary relief for plaintiffs over there — we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit,” Gorsuch wrote.
Nationwide injunctions exceed judicial power, Gorsuch says
Gorsuch argued that nationwide injunctions raise fundamental questions about judicial power. The Constitution does not give federal judges freestanding authority to strike down laws or award damages. Instead, the courts are empowered to resolve specific “cases and controversies” that unfold in the real world between adversarial parties.
Since the judicial power extends to those particular disputes, it follows that courts only have power to bind the parties before them, Gorsuch said. But when a judge-ordered remedy reaches beyond a particular case, Gorsuch suggested courts are transformed from venues for dispute resolution into something else entirely.
“When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place,” Gorsuch wrote. “But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.”
What’s more, Gorsuch said nationwide injunctions are contrary to our legal tradition. When new legal questions emerge, many different lower courts reach their own conclusions — sometimes divergent — over a long period of time.
In turn, higher courts review those results, then announce controlling principles for future cases. The hope is that higher courts can issue quality, well-informed decisions with the benefit of multiple inputs from the lower courts.
Nationwide injunctions interrupt that process, Gorsuch said, turning ordinary disputes into emergencies.
“By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions,” Gorsuch wrote.
“The rise of nationwide injunctions may just be a sign of our impatient times,” he added. “But good judicial decisions are usually tempered by older virtues.”
Justice Clarence Thomas, who joined Gorsuch’s Monday opinion, sounded similar notes in a concurrence to the 2018 travel ban decision. Like the public charge rule, the administration’s travel sanctions were subject to multiple nationwide injunctions.
“These injunctions did not emerge until a century and a half after the founding,” Thomas wrote. “And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.”
Trump administration searches for solution
Nationwide injunctions have beset the Trump administration since the president took office. By the Justice Department’s telling, the federal courts have entered about 40 injunctions against the executive branch since 2017. In contrast, only 27 nationwide injunctions were issued in the entire 20th century.
Vice President Mike Pence said that the administration would look for an appropriate case to challenge nationwide injunctions in the Supreme Court during a May 2019 speech to a Federalist Society conference in Washington, D.C.
The question cannot reach the high court on its own. Rather, the justices can only address the question if it is part of an ongoing dispute.
That could leave the government in something of a bind, however, as it raises the possibility the administration would have to lose a case on the merits in order for the justices to reach the injunction question.
That’s because the high court has no reason to decide on an injunction when the government wins and successfully defends its policy. If the challengers lose, they aren’t entitled to anything. Only after the challengers prevail is the question of a remedy relevant.
Liberals and conservatives alike have obtained nationwide injunctions to attain their litigation goals.
Republican state attorneys general used such orders to good effect in the waning days of the Obama administration. Those injunctions, obtained from right-leaning trial courts in places like Texas, blocked an Obama-era policy on transgender bathrooms and a companion initiative to the Deferred Action for Childhood Arrivals (DACA) program.
– – –
Kevin Daley is a reporter for the Daily Caller News Foundation.
Background Photo “The One Ring” by Rodrigo Olivera. CC BY 2.0.
(Score: 1, Disagree) by fustakrakich on Saturday February 01 2020, @05:07PM (23 children)
Neither are meant to last. The best description is "whimsical", or even "fickle".
the courts are empowered to resolve specific “cases and controversies” that unfold in the real world between adversarial parties.
Exactly. Congress is supposed to write the nationwide "injunction" through the well documented legislative process.
La politica e i criminali sono la stessa cosa..
(Score: 1) by fustakrakich on Saturday February 01 2020, @05:09PM (22 children)
FOCK! Nationwide Injunction = Executive order!!!
La politica e i criminali sono la stessa cosa..
(Score: 2, Insightful) by RandomFactor on Saturday February 01 2020, @06:07PM (21 children)
None of the branches are what I would call optimal.
Executive orders have a couple of notable limitations relative to nationwide judicial injunctions.
1) EOs are restricted to the executive branch, the president is elected to lead the executive branch.
2) EOs can be undone at the stroke of a pen by the next leader of the executive branch
Fundamentally EOs have the weight they do due to the extreme growth of the executive branch. I would argue they should be constrained by constraining the executive branch itself.
В «Правде» нет известий, в «Известиях» нет правды
(Score: 1) by fustakrakich on Saturday February 01 2020, @07:35PM (20 children)
EOs can be undone at the stroke of a pen
Injunctions can't be undone by another, maybe higher court?
We need the judiciary to restrain an out of control executive.
Executive orders and injunctions are supposed to be temporary until congress does their job. They are not suitable for day to day operations.
The prez is replacing all the judges anyway. He won't have to worry about any further judicial restraints for much longer.
La politica e i criminali sono la stessa cosa..
(Score: 0, Interesting) by Anonymous Coward on Saturday February 01 2020, @07:55PM (13 children)
Since the GOP is all about projecting their crimes on to others I can only figure that Republicans are planning a coup for 2020. Either chesting the election again, or if that doesn't work out without being too obvious then a "national emergency" where we have to suspend the election for some reason.
This is the fall of Rome being spearheaded by the dumbest fucking criminal around. I guess the US deserves it, but the people don't.
(Score: 1) by fustakrakich on Saturday February 01 2020, @08:38PM (12 children)
The people asked for it
La politica e i criminali sono la stessa cosa..
(Score: 0) by Anonymous Coward on Saturday February 01 2020, @10:29PM (11 children)
Just a little nitpick here but while Trump did win the Electoral College he did not win the popular vote. Just sayin'.
(Score: 0) by Anonymous Coward on Saturday February 01 2020, @10:54PM (9 children)
The people said NO! And if you count 3rd party votes they said FUCK NO!
(Score: 1, Insightful) by fustakrakich on Sunday February 02 2020, @12:23AM (8 children)
And if you count 3rd party votes...
I suspect they aren't. Pretty easy to fake with our black box voting. Nobody is really checking up.
La politica e i criminali sono la stessa cosa..
(Score: 1, Insightful) by Anonymous Coward on Sunday February 02 2020, @06:14AM (7 children)
Troll
Hmm, looks like black box modding too!
(Score: 2) by exaeta on Sunday February 02 2020, @05:17PM (6 children)
The Government is a Bird
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @06:10PM
We are legion. Expect us.
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @06:54PM
I hold no grudge. Just point and laugh. That's how maintain sanity in an insane world
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @09:15PM (3 children)
Maybe you should have TMB do some research on the mods. My guess is he'll refuse because reality isn't what you think and the sock puppets are actually the conservative circle jerkers.
Already caught a TMB post referring to himself in the 3rd person, either forgot to change accounts or to click post as ac. Either way it showed his willingness to fake being someone else. He always swears he doesn't even post AC.
Conservative projection, seems to always be the answer these days. Always seems like one conservative poster disappears and another similar poster suddenly starts appearing. Wonder how many persona reboots have been tried.
(Score: 0) by Anonymous Coward on Tuesday February 04 2020, @12:41AM (2 children)
No, you're wrong. Generally the system is very good. The dems are far more emotional with their mods. And it's very amusing, but repetitive, when you speak of "projection". But don't stop on my account!
(Score: 0) by Anonymous Coward on Tuesday February 04 2020, @04:10AM (1 child)
I would like to subscribe to your newsletter. You have a tight grasp on the fundammentals of logic and reason. I look forward to your witty obervations delivered with scathing arrogance!
(Score: 0) by Anonymous Coward on Tuesday February 04 2020, @06:37AM
You have a tight grasp on the fundammentals of logic and reason.
Damn right! And it's about time you start to show some respect! Goddamn know-nothing punk!
(Score: 1) by fustakrakich on Sunday February 02 2020, @12:54AM
He and Clinton got all the electoral votes and almost 95% of the popular vote. The people asked for it. I wish the denials would stop so people would get around to finding replacements for all those incumbents in congress. There is only one way this swamp is going to be drained, and it's not done by reelecting these lepers for another 30 years
La politica e i criminali sono la stessa cosa..
(Score: 1) by RandomFactor on Saturday February 01 2020, @08:10PM (1 child)
I suppose I should have left in the fight it for months-to-years and pray the supreme court accepts it and then pray for it to be overturned disclaimer I had in there originally :-\
You put "congress" next to "does their job", was that intentional?
В «Правде» нет известий, в «Известиях» нет правды
(Score: 1) by fustakrakich on Saturday February 01 2020, @08:24PM
You put "congress" next to "does their job", was that intentional?
Congress is just the reflection of what the voters decide. We can't insult congress without offending the people that keep putting them there for such a long time. I guess people like stale bread...
La politica e i criminali sono la stessa cosa..
(Score: 2) by Runaway1956 on Sunday February 02 2020, @02:17AM (2 children)
I think you've got that skewed a bit.
Congress is the most powerful authority in the land. Based on their control of the purse, they have ultimate control over everything.
Congress has abdicated some of their power and authority with the stupid-ass war powers acts. They don't want to be bothered with doing the dirty work, so they shrugged it all off on the executive.
But, if congress actually does their job, and legislates things (immigration reform, for example?) then executive orders mean little. The judiciary is there to settle disputes between legilative and executive. If the prez writes an EO that is clearly in violation of laws that congress has written, the EO will almost always lose. The best chance for an EO to succeed against a law, is that the Supremes decide that the particular law is unconstitutional.
It's fair to say that government is borked because a few hundred assholes in congress are incompetent at their jobs. Add in their laziness, with their self aggrandizement and self interests. Any congress critter who is more interested in enriching himself than he is in enriching the nation should be summarily executed. After the first 20 or 50, the rest would get down to business, and actually run this country for the benefit of citizens.
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @02:12PM (1 child)
But the Constitution does not say they can give up such power and authority, so this is simply unconstitutional anyway.
(Score: 2) by Runaway1956 on Sunday February 02 2020, @08:46PM
That would be interesting to argue. Pick a side, either side, and try to justify the abdication of power. To my thinking, those powers may be given to the prez, but only for very limited durations, with very specific goals in mind. Couched in very flowery and legal language, it would be something like: Great Britain has offended us, and we want them to suffer greatly, but we don't want them destroyed. Send the Navy and the Air Force to England and make them very uncomfortable for the next 5 years. Stop all trade with the continent, and don't allow any Brits to vacation anywhere except their own islands.
There you have a duration, and definite goals, stated pretty clearly.
Hail to the Nibbler in Chief.
(Score: 2) by exaeta on Sunday February 02 2020, @02:52AM
The Government is a Bird