Federal judges across the country are issuing “nationwide injunctions” to stop President Donald Trump from implementing policies that are opposed by groups suing to block them.
In this latest form of “lawfare” against Trump, various interest groups have been suing his administration since Inauguration Day. The groups carefully chose their venues and filed their lawsuits where a judge was most likely to agree with their views.
The next step was to ask for a temporary restraining order, or TRO, to immediately prevent the challenged policy from being implemented. A TRO is good for about two weeks, but then the groups can seek a preliminary injunction that potentially freezes the Trump administration’s actions until the lawsuit reaches its eventual conclusion.
That can take years. An entire presidency can be stymied this way, which of course is the whole idea.
So far, lawsuits have been filed to force government spending, to restore fired employees to their jobs, to allow illegal immigrant gang members to stay in the United States, and even to prevent anti-fraud work by the DOGE team at the Social Security Administration.
More than 150 lawsuits have been filed to date related to some portion of the Trump administration’s policies or decisions. That’s the latest tally from CourtWatch.news, a site that’s attempting to keep track of all of them.
It’s far from clear that district court judges actually have the authority to issue “nationwide injunctions” to block a president’s policies. But who has the authority to stop them?
You might be surprised. The American government is not what it seems to be on television.
Take Congress, for example. It often looks like the weakest and most dysfunctional branch of government. Only 31% of Americans approve of the job Congress is doing, according to an average of recent polls published by Ballotpedia.
The presidency seems to be the most powerful branch, but is it? Not if federal judges can halt a president’s policies for years whenever somebody files a lawsuit challenging them.
Does that make the judiciary the most powerful branch? Sometimes it looks that way. We’ve often seen national policy radically changed by nothing more than the partial agreement of five of nine justices appointed by the president who happened to be in office when a chair opened up.
However, that’s not the deal we signed.
The deal we signed, the U.S. Constitution, gives the Supreme Court no role at all in determining national policy, and it makes Congress the most powerful branch of the American government.
Congress has control of federal spending and the exclusive power to declare war. It’s the only branch of government that can impeach and remove officials in the other branches. That includes federal judges. Congress also has the power to create (or abolish) any “inferior courts” below the Supreme Court, and it has another power over the judiciary that may surprise you: the power to limit and regulate the appellate jurisdiction of the Supreme Court. Congress can control the types of cases the justices are allowed to decide.
It’s called the “Exceptions Clause,” and it’s in Article III, Section 2, Clause 2: “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
So Congress has the clear constitutional authority to write regulations or exceptions to prevent “nationwide injunctions” from bottling up the presidency while civil lawsuits drag on for years.
“Nationwide injunctions” have been used by both sides of the political spectrum. For example, when the U.S. Supreme Court overturned the Roe v. Wade decision in 2022, anti-abortion groups filed a lawsuit in a U.S. District Court in Texas seeking to reverse the FDA’s approval of mifepristone, a drug used in medical abortions. A judge issued a nationwide stay that suspended the drug’s approval.
That prompted the dean of the UC Berkeley School of Law, Erwin Chemerinsky, to write an op-ed for the Los Angeles Times titled, “Why One Judge in Amarillo Got to Decide Whether Any American Could Use the Abortion Pill.” In it, he argued that litigants “should not be able to handpick a judge who then can issue a nationwide injunction throwing the entire country into chaos.”
President Biden’s policies were stopped by 14 nationwide injunctions by the end of his third year in office. Injunctions against President Trump’s policies have shattered that record in less than three months.
Although it may appear, especially to government employees, that Trump is making radical changes, he’s really restoring something Americans haven’t seen in the government in many, many decades: accountability to the voters.
Congress, the most accountable branch of government with elections every two years, has gradually delegated much of its power to “independent” agencies in the executive branch, agencies that answer to no one. Why would Congress give up power? Probably because delegating authority to unaccountable agencies allows lawmakers to evade responsibility and even act shocked and indignant when the chickens come home to roost.
The executive branch, meanwhile, has been dominated by a permanent, immovable bureaucracy protected from accountability by civil service protections.
Federal judges have even greater protection from accountability, shielded as they are by lifetime appointments. Alexander Hamilton called the judiciary the “least dangerous branch” because it had “neither force nor will, but merely judgment.” He didn’t live to see judges invent new powers for themselves — and not only the power to issue nationwide injunctions. In a long series of precedent-shattering “landmark” cases over the last 100 years, Supreme Court justices carved out a policy-making role, usurping state and local authority over laws governing everything from panhandling to policing to abortion rights.
The Declaration of Independence, now hanging in the Oval Office, states that governments derive their “just powers from the consent of the governed.” The signed Constitution is the embodiment of that consent.
Congress plainly has the power to prevent district judges from issuing nationwide injunctions. The sooner the better.
Write [email protected] and follow her on X @Susan_Shelley
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