Senators are eager for the Supreme Court to issue some clarity on whether lower courts can block policies nationwide. If they don’t get it as part of the current birthright citizenship case, some lawmakers hope to take action themselves.
“If the Supreme Court won’t clarify it … then Congress ought to,” Sen. Josh Hawley, a member of the Senate Judiciary Committee, told NOTUS. “We ought to make clear that district courts cannot bind parties who are not in front of them. And that’s true for whoever appoints them, Democrat or Republican.”
Nationwide injunctions — rulings that impact an entire group, not just those specifically involved in a case — have been used to uphold individual constitutional rights. Republicans, in particular, have objected to nationwide injunctions due to the overwhelming number issued against President Donald Trump’s policies: at least 86 during his first term and at least 25 in his second, according to the Congressional Research Service.
One of those orders, the injunction on Trump’s birthright citizenship restrictions, could be used by the Supreme Court to settle whether lower courts have the authority to make nationwide decisions. While lawmakers don’t agree on the case itself, many say they’d be happy to finally get some answers on the question of injunctions.
“I think there needs to be some clarity,” Sen. Dick Durbin, the Judiciary Committee’s ranking member, told NOTUS. That is “a question that was debated within the court quite extensively.”
When asked if the Supreme Court should issue nationwide injunction guidelines and whether this case was the appropriate avenue, Sen. Cory Booker, another Judiciary Committee member, told NOTUS “it is really impractical … to have different standards in different places.”
Some senators, including Hawley, say there’s already a clear answer: Nationwide injunctions should go. He told NOTUS he wants to see “an end to them,” arguing that a district court “cannot bind parties that are not before it.”
“We created the lower courts, we could eliminate the ball,” Hawley said. He paused, and then added, “I’m not suggesting that, but we have the ability to govern them.”
Sen. Chuck Grassley, the Judiciary Committee’s chair, already introduced legislation that aims to bar all U.S. courts from issuing nationwide injunctions. Instead, people seeking nationwide relief would need to file a class-action lawsuit, which can lengthen a case.
“[A]mid President Trump’s flurry of executive action, federal district judges have increasingly — and inappropriately — inserted themselves into the national policy debate,” Grassley said in March. “These nationwide injunctions have become a favorite tool for those seeking to obstruct Mr. Trump’s agenda.”
The Trump administration is clearly tired of courts blocking its orders. D. John Sauer, the U.S. solicitor general, argued in the birthright citizenship case hearing that nationwide injunctions should essentially be eliminated. If anyone wants court remedy, they should file their own lawsuits because courts should only “remediate the injuries to the complaining party,” he said.
Justice Ketanji Brown Jackson questioned that argument during the hearing.
“Your argument seems to turn our justice system, in my view at least, into a ‘catch-me-if-you-can’ kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” Jackson said. “I don’t understand how that is remotely consistent with the rule of law.”
Not everyone is confident that the birthright citizenship case is the right place to address nationwide injunctions.
Republican Sen. Lindsey Graham said that nationwide injunctions are “a problem that needs to be fixed” and that they lead to forum shopping, the practice by which a party files a case with a particular judge they believe would rule in their favor. “[It] leads to forum shopping — for both sides — and it’s just creating chaos. So I hope they’ll up their game there.”
But Graham seemed unsure about whether this case should even address forum shopping, given how many times the Trump administration has lost in the lower courts: “I don’t know. I’ll leave that up to the court.”
To the justices, issuing some sort of guidance is easier said than done.
Justice Neil Gorsuch, who in 2020 said such rulings were “sowing chaos,” acknowledged during the oral arguments that creating guidelines around nationwide injunctions — specifically, that they can only be issued when a district court considers it necessary — is difficult because “every district court who enters one of these thinks that’s what they’re doing.”
Justice Elena Kagan, who has also casted doubt on nationwide injunctions, said at one point that the birthright citizenship case was not the best avenue to reach a conclusion.
“This case is very different from a lot of our nationwide injunction cases in which many of us have expressed frustration at the way district courts are doing their business,” Kagan said.
Kagan said that normally, frustration over these rulings comes from legal questions that every lower court would likely answer differently, which then leads to court shopping. She said that conservatives tend to go to Northern Texas for favorable rulings, while liberals target Northern California.
But the birthright citizenship case, she said, is not an appropriate forum to resolve those issues because “the courts keep deciding the same way, and nobody really thinks that the lower courts are going to do anything different.”
Rep. Jamie Raskin, the ranking member of the House Judiciary Committee, made a similar point.
“When the merits are clearly against the administration, they do everything in their power to create some kind of procedural off-ramp, and so they would like the case to be decided on the basis of nationwide judicial injunctions instead,” Raskin told NOTUS.
He added that the real problem with nationwide injunctions was court shopping, but “nobody is arguing that any forum shopping was taking place here.”
“The four cases that led to the Supreme Court case … came from two Democratic-appointed judges and two Republican-appointed judges in different parts of the country,” Raskin said.
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Oriana González is a reporter at NOTUS.