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Rep. Darrell Issa and fellow Republicans say judges have overstepped their authority in issuing rulings that slow President Donald Trump’s agenda. The Supreme Court seems to agree.
So do the Harvard Law Review and some Democratic lawmakers, sort of. The caveat there is those two aren’t bemoaning legal challenges to Trump’s policies — anything but, for the latter — but they say federal District Court judges have gone too far in issuing nationwide injunctions in recent years. There’s a big difference regarding what to do about it.
On Wednesday, the House passed Issa’s “No Rogue Rulings Act” to limit injunctions to parties directly involved in a case, which would essentially block nationwide injunctions. Similar legislation to limit district court rulings has been proposed in the Senate by Republicans Chuck Grassley, R-Iowa, and Josh Hawley, R-Mo. (Early talk by Republicans about impeaching judges they disagree with faded as it became clear the votes were not there.
) In April 2024, long before Trump’s election to a second term, the Harvard Law Review argued for ways to stop judge-shopping as a means to reduce the issuance of nationwide injunctions rather than banning them altogether. One thing is clear: Nationwide injunctions against Trump’s policies by federal district court judges have exploded during his time in the White House, while those against the policies of Presidents Barack Obama and Joe Biden also increased, but to a much lesser extent. The frequent complaint that there’s a partisan tilt in such rulings is bolstered by data that shows they have been made overwhelmingly by judges appointed by presidents of the opposing party, according to the law review article.
During Trump’s first term, 64 injunctions were issued against his administration’s policies — 59 from judges appointed by Democratic presidents. More than 15 injunctions have been issued since he was inaugurated in January. Biden faced 14 nationwide injunctions, all by Republican-appointed judges.
Obama had 12 injunctions, with seven issued by Republican appointees. Only six were issued against President George W. Bush, split evenly between Democratic- and Republican-appointed judges.
“It’s never been more obvious that parts of our federal judiciary have a major malfunction of judicial activism,” Issa said in a statement last month. “Practically every week, we see yet another federal judge issuing yet another nationwide injunction in yet another gambit to stop President Trump from exercising his Constitutional Article II powers and carrying out the policy agenda he promised the American people he would make a reality.” In these instances, Democrats don’t see judicial overreach but a president flouting the law.
“He’s engaged in terribly lawless and irresponsible violations of people’s rights — whether that’s trying to nullify the citizenship of millions of people by deleting the birthright citizenship clause or dismantling federally created, congressionally created agencies and departments,” said Rep. Jamie Raskin, D-Md. “We shouldn’t completely rewrite the federal rules of civil procedure and appellant procedure in order to suit Donald Trump because he doesn’t like the fact that he’s losing every day in court,” Raskin added.
On Tuesday, the Supreme Court, with a Republican-appointed majority, overturned a lower-court ruling ordering that 16,000 probationary employees fired by the Trump administration be reinstated. It was the third time in less than a week that the justices have sided with the administration in its fight against federal judges whose orders have slowed Trump’s agenda, according to the Associated Press. The court also paused an order restoring grants for teacher training and lifted an order that froze deportations under an 18th-century wartime law.
Much of the Republican ire, and momentum for the Issa bill, was directed at the latter injunction by federal Judge James Boasberg. Not surprisingly, partisans on both sides have criticized rulings they don’t like and defended, or remained silent, on ones that served their interests. There was not a lot of Republican outcry in 2023 when federal Judge Matthew Kacsmaryk in Amarillo, Texas, issued a nationwide stay to suspend the Food and Drug Administration’s two-decade-old approval of mifepristone, a drug used as part of a medication abortion regimen.
Ditto for Democrats when hours later Judge Thomas Rice in Washington state granted a countervailing injunction to keep the FDA from changing its approval of the drug in 17 states and the District of Columbia. The law review article noted there was a larger geographic component to the trend, with injunctions against Obama and Biden largely coming from courts in Texas, while Trump injunctions often were issued by judges on the coasts. At least one House Republican earlier this month expressed skepticism about limiting the power of lower courts to issue nationwide injunctions, according to Politico.
Rep. Thomas Massie, R-Ky., noted that Republicans cheered injunctions during the Biden administration when judges blocked several of his most sweeping policy efforts.
“This is a double-edged sword. He did unlawful and unconstitutional things during COVID that were stopped with nationwide injunctions,” Massie said. “I’m torn on this.
” In 2023, nearly 20 Democratic senators asked the Judicial Conference of the United States, which sets rules for the courts, to randomly assign cases to District Court judges. That same year, the American Bar Association urged federal courts to eliminate case-assignment procedures that “predictably assign cases to a single United States district judge without random assignment” when a nationwide injunction is being considered. The judicial conference last year adopted such policies, but critics say they don’t go far enough or that the decision should be made by elected officials.
Despite the current rhetoric, there seems to be rare agreement on addressing what many believe is a high-stakes issue. But it’s hardly unique that there’s disagreement on a solution. What they said Rich Lowry ( @RichLowry ), editor of the National Review, on Trump’s 90-day tariff pause.
“This episode will just reinforce the idea in corporate America that they can’t rely on whatever is supposedly the tariff policy at any given moment and that they would be foolish to make decisions based on it.”.
