Trump is obviously wrong in attacking judges. But he's correct about one thing. | Opinion
The Trump administration is correct that there are significant problems with nationwide injunctions, but Trump's all-caps complaints on Truth Social mask the serious legal questions behind them.
President Donald Trump's rivalry with the judicial branch reached a climax last week when he called for a district judge to be impeached for ruling against his administration's deportation policies.
Trump's frustration with U.S. District Judge James Boasberg is a familiar one. After district judges have blocked several of his executive orders, the newest target of the Trump administration is what is called a nationwide injunction, which is an order from a district judge that temporarily blocks executive action pending a final decision in a case.
More than 15 nationwide injunctions have been issued to Trump's administration. After already setting records for these injunctions in his first administration, he wants to prevent them from derailing his second term in office.
“STOP NATIONWIDE INJUNCTIONS NOW, BEFORE IT IS TOO LATE," Trump said on Truth Social. "If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!"
The president is loudly running afoul of the law, and his complaints about nationwide injunctions are his scapegoat for his own actions. Nonetheless, even in his outlandish complaints, he raises some valid points that should be considered.
What is an injunction? Trump isn't the first president to deal with them.
Many Americans aren’t familiar with the nationwide injunction and why it exists, which is understandable given it's only recently become prevalent and serious legal questions surround it.
These orders are becoming increasingly common and, according to Justice Clarence Thomas, “are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently.”
The Harvard Law Review reported last year that there have been 127 nationwide injunctions since 1963, with 96 from 2001 to 2023. A staggering 64 of those since 1963 came against Trump during his first term. President Joe Biden was the target of 14 of these orders, and Trump’s second term has already exceeded that figure, facing more than 15 against his flurry of executive orders since January.
There are two schools of thought explaining this rise in nationwide injunctions. Some believe that the rise is due to an increase in judicial activism, with political parties nominating and confirming increasingly partisan judges. The increasingly partisan rhetoric from politicians surrounding these confirmations doesn’t help, lending credence to proponents of this school of thought.
The bigger factor, in my eyes, is that Congress has become increasingly gridlocked. That has led to more action being taken by the executive branch, which is not a policymaking branch by design. The result is that the executive branch is stretching laws to justify policy preferences and running into legal roadblocks.
The data lends itself to a blend of the two explanations, given that Trump’s first term had by far the highest number of nationwide injunctions against the president in recent years, but also with more than 92% coming from judges appointed by Democrats.
Others have highlighted that rather than Trump being disproportionately targeted by the judicial branch compared with other presidents, he's simply acting more carelessly and using more executive orders. It is true that Trump’s 96 executive orders in the first two months more than double Biden’s figure of 37 and eclipse his own first-term figure of 17.
Legitimate questions about legality of nationwide injunctions
As these injunctions have become increasingly common, legal scholars have become increasingly interested in the Supreme Court taking up the issue. While the court has yet to rule on any case questioning these injunctions thus far, they have certainly raised questions on the issue.
Members of the Supreme Court, namely Justices Neil Gorsuch, Samuel Alito and Thomas, have expressed skepticism over these nationwide injunctions or whether they are legal at all.
“If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep,” wrote Gorsuch in 2020. “A single loss and the policy goes on ice ‒ possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay.”
Gorsuch’s criticism holds even more weight when you consider the fact that a judge anywhere can block executive action everywhere, meaning that the president’s opponents can “go shopping,” so to speak, finding a sympathetic judge anywhere in the country and bringing a case before them in search of an injunction.
The partisan nature of these injunctions also raises questions about whether they enable activist judges to block policies that cut against their political ideologies. While it is true that the typical appellate process is intended to deliver a proper outcome in these sorts of cases, activist judges can still delay policies they disagree with, significantly hobbling a hostile administration's ability to enact policy in a timely manner.
Some experts have suggested that Congress pass a law requiring nationwide injunctions to be approved by a panel of three judges, which would, in turn, make these matters directly appealable to the Supreme Court. However, it is unlikely that we can trust Congress to do anything of substance. Instead, the likely outcome is that the Supreme Court provides clarity on their proper use, limits and to what extent they can limit presidential actions.
Trump's tantrums distract from the real legal debate
The Trump administration is correct that there are significant problems with nationwide injunctions, but Trump’s all-caps complaints on Truth Social mask the serious legal questions behind them.
Trump and his allies have been critical of nationwide injunctions since his first term, particularly given the high rate of his actions that were blocked. Trump has recently asked the Supreme Court to curtail these injunctions, but that is just one piece of his response to his actions being interrupted.
Take, for example, Trump’s deportation of gang members under the Alien Enemies Act. The Trump administration justified a string of deportations by invoking the 1798 statute that was meant for the removal of foreign nationals during wartime.
Naturally, there were legal questions surrounding the use of the statute, even among legal scholars on the right. A federal judge blocked the deportations and ordered any planes that had already departed to return to the United States. The Trump administration didn’t abide by that order, and Trump called for the judge in that case to be impeached for partisan bias.
Instead of allowing proper legal questions to be raised, debated and answered, Trump has fully set his sights on those who have wronged him. In calling for judges blocking his legally dubious actions to be impeached, he has taken what could be a legitimate legal debate and instead stoked tensions on the right to target an entire branch of American government.
Multiple things can be true at once. There are serious questions about nationwide injunctions, and Trump’s attacks on the judiciary distract from the proper legal debates. Trump should stop his attacks on the judicial system and allow debates to run their course.
Dace Potas is an opinion columnist for Paste BN and a graduate of DePaul University with a degree in political science.