What The Hell America!

THE TRUMP ADMINISTRATION REVELS in both-sidesism. Trump is weaponizing DOJ? So what? We are just responding to what Biden did. It’s a common trope.

But it is a trope that should be rejected whenever it lacks a factual foundation. More often than not, President Trump’s both-sidesism is based on a false equivalency.

The current debate about “universal injunctions”—when federal district judges issue injunctions applicable nationwide—is just such a case. Trump wants you to think that he is the victim of district court judges gone crazy enjoining his actions. To make that case he also wants you to think that what is happening to him is the same thing that happened to Biden’s policies—district court judges interfering with executive prerogative.

But that’s just not the case. And diving into the facts makes it clear that this argument really isn’t about universal injunctions—cases where a district court judge grants interim equitable relief that applies across the entire country. The argument is really about forum-shopping and judicial gerrymandering. MAGA has done these things. Trump’s opponents don’t.

The facts on the ground are that the universal injunctions against Trump are truly universal. As of today, more than twenty different federal district court judges have issued injunctive relief in at least 180 different cases (and the number goes up with every passing day). There is no good evidence that Trump’s opponents are forum-shopping—bringing cases before courts where there is the greatest expectation of having judges who will rule in their favor.

The political valence of those judges is across the board. One of the most stunning of the rebukes to Trump came from a Trump-appointed conservative judge in South Texas who was the first judge in the nation to reach the merits of Trump’s invocation of the Alien Enemies Act to deport Venezuelans and declared it unlawful. Another was when conservative icon J. Harvie Wilkinson from Virginia condemned Trump’s assault on the judiciary.

Likewise, Trump has lost all across the country. He has lost in Massachusetts, where his assaults on Harvard have been rejected. He has lost in San Francisco, where his wholesale reorganization of the federal government has been paused. In the immigration field he has lost not only in Texas but in Maryland, Vermont, and New Jersey.

By contrast, the overwhelming majority of the universal injunction cases against Biden polices were forum-shopped to specific judges. In Texas, there are a couple of locations where a single federal district court judge presides over a division of the district (a division being a subunit). By filing a case in a particular division, a litigant could almost guarantee drawing a particular judge.

It is no accident, then, that dozens of injunctions were sought by MAGA Texas Attorney General Ken Paxton in two separate one-judge divisions. By March 2023, Paxton’s office had filed 28 lawsuits against the Biden administration in federal district courts in Texas; of those, 18 were filed in single-judge divisions, including Judge Matthew Kacsmaryk’s division and a single-judge division held by another Trump appointee, Judge Drew Tipton. Judge Kacsmaryk is a Trump-appointed judge who opposes abortion. He tried to universally ban the use of mifepristone—a ban that was unanimously reversed by the Supreme Court. Judge Tipton, meanwhile, ruled against Biden’s immigration policy—a decision that was overturned by the Supreme Court. Meanwhile, Reed O’Connor—another one-judge division holder—has become the MAGA go-to judge for rulings on guns (his ban on regulating receiver banks was overturned by the Supreme Court) and opposition to the Affordable Care Act (described as a “lawless . . . mockery of the rule of law” that was, again, overturned by the Supreme Court).

To be sure, some of the injunctions against Trump have, been overturned by the Supreme Court—most recently and notably in affirming Trump’s authority to fire the members of independent boards (like the NLRB) under his executive authority. Not all injunctions issued against Trump deserve to be sustained.

But what is striking is that it is only now, when universal injunctions bite against conservative initiatives, that the Supreme Court has begun to think about reining in their use. It’s almost as if, dare one say it, sauce for the liberal goose tastes more bitter when used to season the conservative gander.

TO BE FAIR, SOME ASPECTS OF THE ARGUMENT really are principled discussions of judicial power and the scope of equitable relief. Some conservative jurists, like Justice Neil Gorsuch, have been complaining about the actions of district judges since before the Biden administration. And there are good-faith arguments to be made that the power to enjoin the entire nation is somewhat ahistorical (though there is equally good evidence to the contrary).

More to the point, as a practical matter there are good reasons for legal analysts—liberal and conservative alike—to oppose the arrogation of judicial power that allows a single judge to block federal policy. In a world in which we could have confidence in the good faith of an administration and a presumption as to its regularity of operation, universal injunctions would be a little-used safety-valve check on executive authority.

But today, we live in a different world. One where MAGA gamesmanship and judicial forum-shopping were instrumental in frustrating various Biden initiatives. Now that the shoe is on the other foot, it seems quite possible that the Court will depower judicial opposition in the service of conservative policy.

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