Trump Has Respected the Judicial Branch
According to a Harvard Law Review study, only 31 nationwide injunctions were issued against administration policies between 1963 and 2001. During the George W. Bush administration, judges blocked a total of six policies: three by Democratic appointees, three by Republican ones. The number doubled under the Obama administration, rising to 12, with just over half issued by judges appointed by Republican presidents.
Then came the first Trump presidency. Over his four years in office, 64 injunctions were issued against his policies 59 of them by Democratic-appointed judges. The Biden administration marked a return to relative normalcy: 14 injunctions were issued through 2023, albeit all by Republican-appointed judges. Though estimates vary, some observers suggest that in the early months of Trump s second term, judges have issued temporary or preliminary injunctions in nearly 80 cases far surpassing anything seen before.
Some of this increase can undoubtedly be attributed to the rise of government-by-executive but not all of it. The current clash between Trump and the courts raises a series of deeper questions: What is judicial power? What is the proper role of the courts? And may a president ever ignore a judicial order?
Respect is a two-way street. The president must respect the courts and cannot ignore a judicial order simply because he believes it was wrongly decided. But the courts, in turn, must respect the executive. That respect is shown by issuing orders only when they have jurisdiction jurisdiction being the source of their authority to resolve cases and interpret the law. Courts are not roving commissions empowered to issue binding pronouncements on the legality of government policies. Injunctions issued without proper parties or in the absence of proper causes of action violate this core principle. Nationwide injunctions are especially problematic. When a court enjoins a policy nationwide applying its order to all persons, including those not before the court, and especially before the policy takes effect it crosses the line between judicial and executive power.
As this essay went to press, the Supreme Court ruled that universal injunctions likely violate the Judiciary Act of 1789. Even if the Court ultimately reins in these injunctions, lower courts may continue to exploit other tools such as expansive class actions and permissive state-standing doctrines to obstruct Trump policies. And they may continue to ignore other fundamental principles limiting judicial power. If the courts persist in issuing improper injunctions, and particularly universal injunctions or their functional equivalents, at the present pace, the real constitutional crisis will have arrived.
Prof. Ilan Wurman. A young(ish) Constitutional and Administrative Law professor recently hired by the University of Minnesota of all places. Keep an eye on this one. I’ve heard of his books and now I think I should read some of them.
If a real constitutional crisis arrives (I hope it’s not when) we will have (the great majority of) law professors as much as anyone to thank for it.