- Not enactedThe President has not signed this bill
- The senate has not voted
- The house has not voted
Committee on the JudiciaryIntroducedSeptember 11th, 2019
- house Committees
What is House Bill H.R. 4292?
Cost of House Bill H.R. 4292
In-Depth: Rep. Mark Meadows (R-NC) introduced this bill to put an end to nationwide injunctions and prevent lawful policy changes from being blocked based on the activist agendas of individual, unaccountable district court judges:
“Our laws need to be vigorously vetted through the courts, but it makes zero sense for the legality of a nationwide law to rest entirely on the opinion of one judge, or one district court. A district court in California should not be given sweeping authority to issue a ruling—let alone on dubious legal reasoning—striking down policy from a duly elected President. Current law inadvertently empowers detrimental judicial activism, and it needs to change. This is a common-sense reform that returns our system of checks and balances where it was intended to be. I want to thank Senator Cotton for joining me in the effort.”
Senate sponsor Sen. Tom Cotton (R-AR) adds that legislators, not judges, should make policy decisions:
“Policy decisions ought to be made by elected representatives accountable to the American people, not activist judges with lifetime appointments. In the past few years, we’ve seen an explosion of activist forum shopping and nationwide injunctions to thwart the administration’s priorities and grind government to a halt. This bill will restore respect for the system of government outlined in the Constitution by limiting the use of nationwide injunctions by district court judges.”
Attorney General William Barr advocated for ending national injunctions in a September 5, 2019 Wall Street Journal op-ed calling national injunctions a threat to the democratic system:
“When a federal court issues an order against enforcement of a government policy, the ruling traditionally applies only to the plaintiff in that case. Over the past several decades, however, some lower court federal judges have increasingly resorted to a procedural device—the ‘nationwide injunction’—to prevent the government from enforcing a policy against anyone in the country. Shrewd lawyers have learned to ‘shop’ for a sympathetic judge willing to issue such an injunction. These days, virtually every significant congressional or presidential initiative is enjoined—often within hours—threatening our democratic system.”
Barr argued that this dynamic creates “an unfair, one-way system in which the democratically accountable government must fend off case after case to put its policy into effect, while those challenging the policy need only find a single sympathetic judge."
Supreme Court Justice Clarence Thomas criticized nationwide injunctions in a 2018 decision upholding President Trump’s ability to enforce U.S. immigration laws against nationwide injunctions. In the decision, Justice Thomas wrote that nationwide injunctions “take a toll on the federal court system — preventing legal questions from percolating… [and] encouraging forum shopping, and making every case a national emergency for the courts and…the Executive Branch.”
At the 2018 Appellate Judges Education Institute (AJEI) Summit in Atlanta, American University Washington College of Law professor Amanda Frost argued that nationwide injunctions can be lawful in appropriate cases, especially when used to remedy the injury or harm that’s at stake in a suit. She pointed out that ending the use of nationwide injunctions would make it so that every person who’s harmed or affected by a certain policy to sue separately to be made whole — which is often infeasible.
Professor Frost expounded upon the circumstances in which nationwide injunctions are appropriate in an appearance on the National Constitution Center’s podcast, “We the People.” She identified three cases in which nationwide injunctions are appropriate: 1) when they’re the only way to give a plaintiff complete relief, such as in school discrimination cases; 2) when irreparable harm would be done to large numbers of people if they weren’t included, as was the case with President Trump’s travel ban; and 3) when it would be administratively very difficult to provide narrow relief, such as would be the case with environmental rules definining water regulations.
Frost also argues that the rise in nationwide injunctions is a natural response to increased unilateral executive branch activity, wherein major policy initiatives are undertaken without legislative authorization. Frost presents the nationwide injunction as a necessary counter to potentially excessive executive power.
Of Note: Rep. Meadows introduced this bill after the U.S. District Court for the Northern District of California reinstated a nationwide ban on enforcement of the Trump administration’s new asylum rules. This rule defied a ruling from the Ninth Circuit Court of Appeals, which had ruled that the district court’s nationwide injunction was overly broad.
In a letter to his Congressional colleagues seeking cosponsors for this legislation in early September 2019, Rep. Meadows noted that federal district courts have issued 37 nationwide injunctions against the executive branch since President Donald Trump took office. This number dwarfs the 27 nationwide injunctions issued in the entire 20th century. It also far exceeds the 20 nationwide injunctions during President Barack Obama’s eight years in office.
Speaking at the Federalist Society’s Seventh Annual Executive Branch Review Conference in May 2019, Vice President Mike Pence noted the sheer breadth of issues that have been subject to injunctive relief over the course of the Trump administration:
“[T]he kind of government control that our Founders were concerned about is too often exerted by the administrative state in this country. And it’s been emerging in recent years in the federal judiciary in the form of nationwide injunctions. These orders are issued by federal district court judges on a broad range of issues — from national security to immigration, from border security to healthcare reform. And these orders prevent the entire Executive Branch from enforcing a statute, a regulation, or a policy on a nationwide basis. And they apply everywhere, to everyone, granting relief even to those who are not parties to a case.”
Broadly speaking, President Trump and his allies have railed against court rulings that block White House policies, especially on immigration. They claim that injunctions are proof that Democrat-appointed “activist” judges are impeding on the White House’s constitutional powers. As an example of this thinking, in May 2019, President Trump tweeted the following after a judge partially blocked construction of his long-promised border wall:
“Another activist Obama appointed judge has just ruled against us on a section of the Southern Wall that is already under construction. This is a ruling against Border Security and in favor of crime, drugs and human trafficking. We are asking for an expedited appeal!”
For the first 170 years after America’s founding, there were no national injunctions, precisely because courts recognized that they would go beyond the “judicial power.” Since that time, there’s been a gradual evolution allowing the practice to avoid careful constitutional scrutiny.
In recent years, each party’s view on injunctions has been colored by whether it’s in power. Christopher Walker, a law professor at The Ohio State University Moritz College of Law, notes that since the most recent change in presidential administration, “Democrats have found the nationwide injunction great again whereas Republicans see this remedial tool as not so great anymore.”
Legal scholars are divided over whether nationwide injunctions should be allowed. Samuel L. Bray, a professor at the University of Notre Dame Law School, contends that the nationwide injunction is a recent development that is generally inconsistent with traditional English and American equity practices. He argues that federal courts should not issue nationwide injunctions, but should instead provide relief only in favor of the particular plaintiff(s) in litigation.
- Sponsoring Rep. Mark Meadows Press Release
- Sponsoring Rep. Mark Meadows Dear Colleague Letter
- Wall Street Journal Op-Ed (In Favor in Principle)
- Vice President Mike Pence Remarks at Federalist Society’s Seventh Annual Executive Branch Review Conference
- The Washington Free Beacon
- CBN News
- American Bar Association (Context)
- National Constitution Center (Context)
Summary by Lorelei Yang(Photo Credit: iStockphoto.com / Chris Ryan)