Washington, DC - Thank you, Professor Barnett, for that kind introduction, and thank you for your leadership at the Center for the Constitution.
I want to express my gratitude once again to the Federalist Society. For 35 years the Federalist Society has been an eloquent voice—perhaps the most eloquent voice—in defense of the rule of law.
That is an idea that always deserves—and always needs—defending.
Our Founders set up a marvelous system in which Congress writes our laws, the Executive Branch carries out our laws, and the Judiciary applies those laws to cases and controversies.
But this group knows well that there is always a serious risk that some judges will fail to respect our representatives in Congress and the Executive Branch and, instead, claim the power to set policy—a power courts do not have.
For example, we recently had a judge tell one of our fine lawyers openly in court that “you can’t come into court to espouse a position that is so heartless.” Not illegal. Not unlawful. Heartless.
When I said publicly that it is not a judge’s job to decide what is “heartless,” –that it’s the job of the American people and its representatives to establish what the law is—this same judge then said that I “seem to think the courts cannot have an opinion.”
That’s wrong. Judges should issue opinions—legal opinions that pertain to the legal questions of the case, not to politics or policy or personal sentiment.
As Attorney General of the United States, I am shocked by the actions of certain judges who fail to respect the constitutional responsibilities of the executive and legislative branches. These branches are coequal and the courts are not superior.
Although the courts are empowered to decide specific cases and controversies, they do not have the final word on every policy dispute. On matters of policy, the branches that are directly accountable to the people must be given proper respect.
The new vehicle used by activist judges to direct executive policy is the issuing of nationwide injunctions—orders that block the entire United States government from enforcing an executive branch policy or executing a statute. And not just in one district, but nationwide. Not just to parties before the court, but against everyone, everywhere.
Courts have been calling them nationwide injunctions, but it would be just as fitting to call them non-party injunctions or limitless injunctions—since they bind all of America and grant relief to those who are not parties to the case. And they are usually preliminary injunctions, so they block important government actions before a trial.
Scholars have not found a single example of any judge issuing this type of extreme remedy in the first 175 years of the Republic. But President Trump has been hit with 22 in just over one year in office—on issues like DACA, the travel order, sanctuary cities, and the service of transgender people in the military.
While you may have heard differently, we believe that each of these executive actions is justified under the lawful powers of the chief executive. We are eager to defend these actions before the Supreme Court and are confident of a positive result.
In fact, the Supreme Court has already issued three extraordinary opinions by which they essentially reversed the vast majority of injunctions on the travel matter and granted an extraordinary writ of mandamus to stop a district court judge’s extreme discovery order.
It’s hard enough to manage this colossal government under the laws passed by Congress, much less facing a host of nationwide injunctions imposed by just one of 600 district judges—injunctions that result in great cost and turmoil.
It took more than 200 years for the first 22 nationwide injunctions to be issued. Now we’ve had 22 in just over one year. Clearly, something has changed.
It’s not as though there weren’t legal controversies before 1963. There were many. They were hotly contested. But nobody issued a nationwide, limitless injunction.
In 1897, in Scott v. Donald, for example, the Supreme Court found a law unconstitutional and even recognized that many others besides the plaintiff might be entitled to relief. But the Court issued an injunction that only prevented application of the law to the plaintiff.
During the New Deal controversies, courts concluded that one new tax was unconstitutional more than 1,600 times.
They issued more than 1,600 injunctions. But each of those injunctions applied only to the plaintiff, and the government collected the tax in good faith from more than 71,000 other taxpayers before the Supreme Court later held it unconstitutional.
In truth, this is a question of raw power—of who gets to decide the policy questions facing America: our elected representatives, our elected president or unelected lifetime-appointed federal judges.
Today, in effect, single district court judges are going beyond proper adjudicative bounds and making themselves super-legislators for the entire United States.
That means that each of the more than 600 federal district judges in the United States can enjoin a law or regulation throughout the country—regardless of whether the other 599 disagree.
These limitless injunctions are contrary to the structure of our government, to the role of our judiciary, and they hamper or even block the proper functioning of our government—and they importantly and dramatically undermine the power of the people to control their government.
Let me share some concerns.
First of all, these nationwide injunctions encourage forum shopping. There is a reason why so many lawsuits have been filed against the Trump Administration in California and Hawaii, and why others were filed against the Obama Administration in Texas.
Litigants are looking for the most favorable forum in which to advance their goal of binding the whole nation—virtually always to secure a policy outcome that could never win at the ballot box or in the legislature.
Second, limitless injunctions cut off discussion among lower courts.
We know that the first court to rule on an issue isn’t always right. Our federal judicial system is set up so that district courts in different parts of the country can consider issues at the same time. Those issues may then be appealed to one of the twelve circuit courts. When those circuit courts disagree, then the Supreme Court can take up the case.
Non-party injunctions short-circuit our system. The federal government is forced to appeal the first nationwide injunction, possibly all the way to the Supreme Court—which can take 18 months or longer. The effect is to cut off opportunities for other courts to weigh in.
And often these are preliminary injunctions, meaning a full case record has not been developed before the vast scope of the injunction directs the policy of the government.
Third, when a single district judge issues a nationwide injunction while similar cases are pending elsewhere, the first ruling by the first district judge somehow becomes authoritative while contrary rulings by equally authoritative district judges have no effect.
A telling example of this is the litigation over the rescission of the DACA policy.
Parties have sued in several courts across the country, meaning that several judges are considering the issue and will issue rulings that should be binding on the plaintiffs in those cases only.
Yet a federal judge in San Francisco and a federal judge in New York both felt they had the authority to issue nationwide injunctions, granting relief to others who were not parties to the case.
Then, just this week, a federal judge in Maryland held that the DACA rescission was lawful. So the plaintiffs in that Maryland case lost—but by the rulings of the San Francisco and New York judges, they obtained relief anyway.
Fourth, limitless injunctions circumvent the class certification process required by statute and by Rule 23 of the Federal Rules of Civil Procedure. That’s because they provide the benefits of class certification without the procedural protections.
Fifth, limitless injunctions create an absurd situation in which a plaintiff only needs to win once to stop a national law or policy—but the government needs to win every time to carry out its policies. That makes governing all but impossible.
My predecessor, Attorney General Robert Jackson faced a similar problem. In 1937, he lamented that “no administration can halt its policies…to seek the judiciaries’ views.
The government cannot learn the judge’s views until after the law is passed and then only after a lapse of years…Moreover, the judicial contribution is always a negative. It may tell what cannot be done…but it never tells what can be done. Government by litigation has destroyed effective enforcement of public policy.”
He didn’t know how good he had it.
The Department of Justice has been fighting the unprecedented number of limitless injunctions in the courts, and we are well aware of what is at stake.
For example, last year, I made the common sense decision that our state and local law enforcement grants should go to states and cities that actually cooperate with federal law enforcement, including the enforcement of the immigration laws.
To receive this grant money, jurisdictions need to certify their compliance with federal law barring restrictions on communications between state and local agencies and the Department of Homeland Security.
They have to allow our ICE agents access to detention facilities to meet with aliens and inquire into his or her right to remain in the United States.
And third, they have to provide at least 48 hours advance notice to ICE before releasing an alien if ICE has asked for notice. These are small but important requests for cooperation.
This allows ICE to know about aliens who are arrested and can decide whether to take custody of them. These are aliens who have committed crimes or are suspected of having committed crimes. They are serious enough criminals that the local authorities have arrested them.
And yet some cities think only their law enforcement interests deserve vindication, not those of the federal government. Why, then, should the federal government give grants to these cities?
Well, unsurprisingly, several of these sanctuary cities have sued us. These cities want federal funding—but they don’t want federal law or to comply with the most reasonable cooperation requirements.
Sure enough, the first city to the courthouse—Chicago—found a local district judge who agreed with its claims. We disagree with the merits of that ruling, and we think we will ultimately prevail on this legal question.
Normally, this would be a discrete error affecting one city’s grant, and we would correct it on appeal in due course. But instead of issuing an injunction for the city, the judge enjoined the federal government from imposing these conditions on any state or city across the entire nation, including those that agree completely with our position and don’t want this relief.
What possible interest does Chicago have in this sweeping relief? Chicago’s only plausible interest—its own grant money—would have been fully and completely vindicated by an injunction applying only to Chicago.
Meanwhile, other judges are considering this question.
A judge in San Francisco recently denied a preliminary injunction to that city, but it doesn’t matter because the judge in Chicago decided to grant relief to every city.
By not acting as a district court of limited jurisdiction, this judge in Chicago has halted the grant process for the entire country, and has created the need for an expedited appeal in the Seventh Circuit to correct this overreach.
The increasing frequency of limitless injunctions is simply unsustainable, and the ever-more extreme nature of these injunctions is only making it more obvious just how unconstitutional they are.
The Supreme Court has not yet issued a definitive ruling on the merits of nationwide injunctions. So far, when the Court has had relevant cases before them, it has resolved them on other grounds.
But we are hopeful that the Supreme Court will soon send a clear message to the lower courts that injunctions ought to be limited to the parties of the case.
Scope of relief is at issue in a number of high profile cases right now. We will soon be arguing the merits of the President’s travel ban, and we have asked for a review of this aspect of the case, as well.
This is not a political or a partisan issue. It is a constitutional issue and a rule of law issue.
This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama, and President Clinton was in second place.
But the Department of Justice—under Democratic and Republican administrations alike—has been consistent over these past several decades that nationwide injunctions gravely threaten the rule of law.
They threaten the proper respect for separation of powers, and indeed the very functioning of the other two branches of the federal government.
The American people vote for those other two branches of government. They want their votes to count. They want their voices heard. The political branches need to be able to act.
This is my message: We hope the Supreme Court will resolve this issue.
There can be no question that courts should put an end to nationwide injunctions and keep activists on both sides of the aisle from paralyzing the federal government.
In order for our system to function, the Court must end government-by-litigation. I am hopeful that soon they will, and that—with your help—we will restore the rule of law in this country.