3 Ways the Judicial Insurrection May Circumvent the Supreme Court’s Ruling Against Nationwide Injunctions

(The Daily Signal)—The Supreme Court case Trump v. CASA cut right to the heart of the judicial insurrection, the trend of district court judges siding with leftist activists to block President Donald Trump’s policies through nationwide preliminary injunctions.

The court’s decision rightly struck down the judicial insurrection’s number one strategy, but that doesn’t mean rogue judges won’t find ways to block Trump’s attempt to keep his promises to the American people.

“Traditionally, courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit,” Justice Amy Coney Barrett wrote for the court’s 6-3 majority. Yet nationwide or “universal” injunctions aim to block policies from impacting anyone.

Barrett ruled that since “nothing like a universal injunction was available at the founding,” nationwide injunctions violate the 1789 Judiciary Act.

Among other things, Barrett noted that these injunctions “operate asymmetrically,” with a plaintiff needing to win “just one suit to secure sweeping relief,” while the administration “must win everywhere.”

Many of the same groups that staffed and advised the Biden administration (which I expose in “The Woketopus: The Dark Money Cabal Manipulating the Federal Government”) have filed lawsuits to block Trump’s policies, choosing jurisdictions with more friendly judges in order to secure injunctions.

Barrett’s ruling marks a key win against such strategies, but the court’s opinion leaves open two ways for judges to block Trump’s policies, and the judicial insurrection has already tested a third strategy not condoned by the court.

Class Action Lawsuits

The court’s ruling did not affect class action lawsuits. Rule 23 of the Federal Rules of Civil Procedure lays out circumstances in which many people can band together as a “class” to pursue a legal claim, and if a judge certifies the class, he or she may impose an injunction protecting the class.

“Putting the kibosh on universal injunctions does nothing to disrupt Rule 23’s requirements,” Justice Samuel Alito wrote in a concurring opinion.

He warned, however, that “district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23.”

If judges do so, Alito warned, “the universal injunction will return from the grave under the guise of ‘nationwide class relief,’ and today’s decision will be of little more than minor academic interest.”

Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, told The Daily Signal that he suspects “these same judges will simply willy nilly certify classes of plaintiffs to get around this, ignoring the strict criteria that applies through the federal rule on class certification.”

“The Justice Department will then be right back in the courts of appeal, but this time disputing the legitimacy of the judges’ class certifications,” he noted.

The Administrative Procedure Act

The Administrative Procedure Act of 1946 also provides a way for district court judges to block administration policies.

A footnote in Barrett’s ruling notes that “nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.”

Under 5 U.S. Code Section 706, a court reviewing federal agency action “shall … compel agency action unlawfully withheld or unreasonably delayed; and hold unlawful and set aside agency action, findings, and conclusions to be” in one way or another “not in accordance with law.”

The Supreme Court has not laid out clear precedent about the limits of courts’ ability to vacate agency action under the Administrative Procedure Act. If left-wing groups bring such lawsuits against the Trump administration, these cases may end up before the nation’s highest court.

Defying the Supreme Court

District court judges may also flatly defy the Supreme Court’s clear ruling against nationwide injunctions. It sounds insane, but I frankly can’t rule it out because it has already happened.

Last week, Massachusetts-based District Judge Brian Murphy openly defied the court. He had issued a temporary injunction on April 18, blocking the Trump administration from deporting illegal aliens to South Sudan. He issued a follow-up order on May 21, clarifying and enforcing the injunction.

The Supreme Court struck down his April 18 order on June 23, but he issued another order that same day, stating that the May 21 order remained in effect.

The Department of Homeland Security condemned Murphy’s “unprecedented defiance” of the Supreme Court, but his action makes a perverse kind of sense in the context of a judicial insurrection where judges take upon themselves the authority of the president of the United States.

An Ongoing Issue

While Trump v. CASA likely puts an end to nationwide preliminary injunctions at the district court level, Justice Brett Kavanaugh noted in his concurring opinion that the question remains whether “a major new federal statute, rule, or executive order can be enforced throughout the United States during the several-year interim period until its legality is finally decided on the merits.”

Kavanaugh noted that district courts may “grant or deny the functional equivalent of a universal injunction.” Nonprofits and the government may appeal the cases all the way to the Supreme Court, and he urged that the court “cannot hide in the tall grass.” On these issues, “it is often important for reasons of clarity, stability, and uniformity that this court be the decider.”

Kavanaugh noted that Trump v. CASA “will require district courts to follow proper legal procedures” when considering orders, and that’s a clear step toward sanity.

But mark my words, the judicial insurrection is far from over.