GOP thinks the court orders they used against Biden should be outlawed — because they now target Trump
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The old political adage that “where you stand depends upon where you sit” has been getting aired out in Washington.
Republicans and conservatives used to celebrate judges’ issuance of nationwide court injunctions to block Biden policies or progressive government programs.
Now that nationwide court injunctions are being used to block Trump policies, however, onetime fans of the practice have decided that it’s unconstitutional and illegal and needs to be outlawed.
National injunctions are equal opportunity offenders.
— Law professors Nicholas Bagley and Samuel Bray
“When a single district court judge halts a law or policy across the entire country,” Rep. Jim Jordan (R-Ohio), chairman of the House Judiciary Committee, wrote his colleagues on Monday, “it can undermine the federal policymaking process and erode the ability of popularly elected officials to serve their constituents.”
That’s not untrue. But I couldn’t find evidence that Jordan ever made this point before Trump came into office. I asked his committee staff to identify any such reference, but haven’t heard back.
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The issue of nationwide injunctions — in which federal judges apply their rulings beyond the specific plaintiffs who have brought suits in their courthouses — dovetails with another widely decried abuse of the judicial process. That’s “judge-shopping,” through which litigants connive to bring their cases before judges they assume will rule in their favor, typically by filing lawsuits in judicial divisions staffed by only a single judge whose predilections are known.
The combination of these schemes allowed conservative judges in remote federal courthouses to block major policy initiatives by President Biden, such as his efforts to enact student debt relief.
Judges also took aim at longer-standing progressive programs, as when Judge Reed O’Connor of Fort Worth, a George W. Bush appointee, declared the entire Affordable Care Act unconstitutional in 2018. The Supreme Court decisively slapped O’Connor down with a 7-2 ruling upholding the ACA’s constitutionality in 2021.
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Ignoring the Supreme Court’s signal, O’Connor subsequently ruled that the ACA’s provision for no-cost preventive services was also unconstitutional. Parts of that ruling were overturned by an appeals court, but parts are now before the Supreme Court, which will hear the case this year.
Then there’s federal Judge Matthew Kacsmaryk of Amarillo, Texas, who last year overturned the Food and Drug Administration’s long-standing approval of the abortion drug mifepristone. The Supreme Court unanimously threw out that case in June.
During the Biden administration, a serial abuser of the judge-shopping process was Texas Atty. Gen. Ken Paxton.
According to a 2023 analysis by Steve Vladeck of Georgetown law school, in the first two years of Biden’s term, Texas filed 29 challenges to Biden initiatives. Not a single case was filed in Austin, where the attorney general’s office is but where a lawsuit had only a 50-50 chance of drawing a Republican judge. Nor were any cases filed in the big cities of Houston, Dallas, San Antonio or El Paso.
Instead, they were filed in the court’s single-judge Victoria, Midland and Galveston divisions, where the state had a 100% chance of drawing a judge appointed by Trump; in Amarillo, where the chance was 95%; and Lubbock, where it was 67%.
Republicans and conservatives raised no fuss about judge-shopping and nationwide injunctions when they targeted Biden or Obama policies.
But now they’re screaming bloody murder about “rogue judges,” suggesting the judges are exceeding their authority simply because they have ruled against Trump and applied their rulings nationwide. Rep. Darrell Issa (R-Bonsall), for example, has introduced what he calls the No Rogue Rulings Act, which would bar nationwide injunctions.
It’s true that “national injunctions are equal opportunity offenders,” as Nicholas Bagley of the University of Michigan and Samuel Bray of Notre Dame wrote in 2018. “Before courts entered national injunctions against the Trump administration, they used them to thwart the Obama administration’s rule for overtime pay and its signature immigration policy, Deferred Action for Childhood Arrivals.”
They were referring to injunctions issued against President Trump during his first term, but the pace has quickened during the current term.
That’s not necessarily because judges have become more roguish, but because Trump has given them more to ponder. In his first 65 days in office, Vladeck reported in a recent post, Trump issued 100 executive orders, besting the record set by Franklin D. Roosevelt in his first hundred days, when he issued 99. Biden issued only 37 executive orders in his first 65 days, and Trump only 17 in the same span during his first term.
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Those orders and other Trump actions have triggered more than 67 lawsuits seeking preliminary injunctions or temporary restraining orders, Vladeck calculated; federal judges have granted some relief in 46 of those cases.
There are some important differences from the litigation style of Biden’s partisan opponents, however. For one thing, Trump’s challengers haven’t engaged in judge-shopping. With one short-lived exception, none of the 67 cases was filed in a single-judge division.
The majority of cases in Vladeck’s database were filed in courts where the chance of drawing a specific judge was less than 15%. The cases were filed in 14 different courts, with a plurality (31 of the 67) filed in the Washington, D.C., judicial district — not a surprise, since that’s the customary venue for lawsuits challenging a government action.
Judge-shopping isn’t illegal, but even conservatives have found it to be sleazy. Last year, the Judicial Council of the United States, a policy guidance body headed by Chief Justice John G. Roberts Jr., stated that any lawsuit seeking a nationwide or statewide injunction against the government should be randomly assigned to a judge in the federal district where it’s filed.
The guidance, which wasn’t binding, won wide support in the federal judiciary — except in the Northern District of Texas, home to the Amarillo, Fort Worth and Lubbock divisions. There the chief judge said he wouldn’t agree.
During a recent appearance on Fox News, Jordan was asked by the conservative anchor Mark Levin whether Democrats are “forum-shopping” to get cases before judges appointed by Democratic presidents. Jordan assented enthusiastically, grousing: “You have a judge in Timbuktu, California, who can do some order and some injunction” to obstruct Trump.
Jordan’s reference was to U.S. District Judge William Alsup, who on Feb, 28 issued a temporary restraining order requiring Trump to cease the wholesale firing of federal employees at six agencies and return the workers to their jobs.
A couple of things about that. First, I’ve been to the real Timbuktu, which is a desert outpost in Mali. San Francisco is possibly the one city in America least likely to be mistaken for that Timbuktu. San Francisco is a city of more than 800,000 residents, nestled within a metropolitan area of 7.5 million. Amarillo, where Kacsmaryk presides, is a community of about 202,000, within a metro area of 270,000.
As for judge-shopping, Jordan might want to bring his concerns to the Trump administration itself. On March 27, the administration filed a federal lawsuit to terminate collective bargaining agreements reached by eight federal agencies.
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The White House filed the case not in northern Virginia, the District of Columbia or any other jurisdiction where large numbers of affected federal workers probably live and work, but in Waco, Texas, a courthouse with a single federal judge, a Trump appointee.
“It’s the height of irony that the only judge-shopping we’re seeing in Trump-related cases is … from Trump,” Vladeck observes.
One might be tempted to give the Republicans the benefit of the doubt on their crusade against “rogue” judges, except for a couple of factors. One is their silence about nationwide injunctions when the results meshed with their anti-Biden ideology.
The other is that their objections to nationwide injunctions has been couched within a broader attack on the independent judiciary. Republicans have advocated impeaching judges for rulings against Trump, a stance that drew a rare public pushback from Chief Justice Roberts.
House Speaker Mike Johnson (R-La.) also raised the prospect of shutting down courts that flout Republican initiatives. “We can eliminate an entire district court. We have power of funding over the courts and all these other things,” he told reporters last week. “But desperate times call for desperate measures, and Congress is going to act.”
All that makes their position look less like a principled stand against judicial activism, and more like partisan hypocrisy.
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Ideas expressed in the piece
- The article highlights Republican hypocrisy in opposing nationwide injunctions only after they began targeting Trump-era policies, despite previously leveraging the tactic to block Biden and Obama initiatives like student debt relief and the Affordable Care Act[2].
- Conservative judges in single-judge Texas divisions consistently issued nationwide injunctions against Biden policies through strategic “judge-shopping,” such as Ken Paxton’s 29 lawsuits filed in jurisdictions with Trump-appointed judges[2][5].
- Legal scholars note national injunctions have historically been “equal opportunity offenders,” obstructing both Democratic and Republican administrations, including Trump’s immigration policies and Obama’s overtime pay rules[2][7].
- Republicans now frame these injunctions as abuses by “rogue judges,” with Rep. Darrell Issa introducing the No Rogue Rulings Act to ban them, despite earlier silence when injunctions aligned with their ideological goals[2][1].
- The article critiques GOP efforts to undermine judicial independence, such as threats to defund courts or impeach judges, as partisan rather than principled objections[2][5].
Different views on the topic
- Critics argue national injunctions lack constitutional and historical foundation, as Article III grants judicial power only to resolve disputes between specific parties, not impose universal mandates[1][6].
- Legal scholars, including Samuel Bray, contend such injunctions distort the judicial role by allowing unelected judges to override elected officials’ policymaking authority, warranting congressional intervention to restore balance[1][7].
- Proponents of reform emphasize Congress’s constitutional authority under Article III to regulate lower courts, including banning injunctions or requiring three-judge panels for nationwide rulings to prevent partisan abuse[1][6].
- Some defend the No Rogue Rulings Act as necessary to curb forum-shopping tactics that enable single judges to impose ideological preferences nationally, citing Texas’s manipulation of judicial assignments to block Biden policies[2][5].
- Advocates note uniformity in federal policy—such as immigration rules or corporate regulations—can justify narrow injunctive relief, but broad rulings risk destabilizing separation of powers without procedural safeguards[3][4][7].
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