Limiting nationwide injunctions
You have almost certainly noticed that the federal courts are busy issuing injunctions on many of Trump’s directives, even ones that seem to have solid legal underpinnings. What is to be done?
The federal courts are under the aegis of Congress:
Article III of the Constitution grants Congress the power to establish lower courts. Congress has used this power in the past to create and abolish entire judicial branches and has passed legislation limiting a federal court’s ability to issue various injunctions.
Congress would be within its constitutional authority to prohibit federal district courts from issuing national injunctions. Alternatively, Congress could establish a three-judge panel or other lower court responsible for issuing national injunctions so that this power could no longer be wielded by a single, rogue judge.
The problem:
There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide…If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. …
Once they have identified a federal action to challenge, it is not difficult for public interest groups to recruit a plaintiff in friendly jurisdictions. Beyond the fundamental unfairness of this sort of forum shopping, these groups seek national injunctions by presenting a single, carefully selected circumstance to be ruled on, then demand universal relief applicable to every person in the country.
What has Congress done? The House has passed H.R.1526 (No Rogue Rulings Act of 2025):
(a) … no United States district court shall issue any order providing for injunctive relief, except in the case of such an order that is applicable only to limit the actions of a party to the case before such district court with respect to the party seeking injunctive relief from such district court and non-parties represented by such a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.
“(b) If a case is brought by two or more States located in different circuits challenging an action by the executive branch, that case shall be referred to a three-judge panel selected pursuant to section 2284, except that the selection of judges shall be random, and not by the chief judge of the circuit. The three-judge panel may issue an injunction that would otherwise be prohibited under subsection (a), and shall consider the interest of justice, the risk of irreparable harm to non-parties, and the preservation of the constitutional separation of powers in determining whether to issue such an order.
It was referred to the Senate Judiciary Committee, where they’ve been holding hearings. My guess is that the problem is the need to get sixty votes for cloture, or to end the filibuster in general. The latter would set a bad precedent, but it’s pretty clear that the Democrats will be ending the filibuster if they ever obtain a Senate majority.
Then there’s SCOTUS, another route to the same end – depending on what it decides. Here’s the case in question:
The case, Trump v. CASA, Inc., reached the Justices after a lower court barred the Trump administration from enforcing an executive order related to birthright citizenship. The Court is now set to decide for the first time whether this sweeping form of relief passes constitutional muster.
The oral argument on this case already occurred about three weeks ago.
And that’s where we stand at present.
A victory, of sorts…but not to be pooh-poohed given the current climate…
“Supreme Court sides with Trump admin in permitting DOGE access to Social Security data”—
https://nypost.com/2025/06/06/us-news/supreme-court-sides-with-trump-admin-in-permitting-doge-access-to-social-security-data/
+ Bonus:
Was the mega-spat all because of Isaacman?
And an anti-Musk imbecile in the administration?
“White House staffer went on a revenge tour against Elon Musk, fanning flames with Trump — while bragging about Tesla stock drop”—
https://nypost.com/2025/06/06/us-news/white-house-staffer-went-on-a-revenge-tour-against-elon-musk-fanning-flames-with-trump-while-bragging-about-tesla-stock-drop/
I hope the congressional bill passes. Even if the Supreme Court decides against nationwide injunctions, the decision might apply only to the type of case before the court.
I have a question on the topic that I haven’t seen discussed. If the plaintiff is asking for relief that would be universally applicable once a final judgment issues in the plaintiff’s favor, wouldn’t it logically follow that an injunction granting the same relief preliminarily should likewise be universal (assuming a valid analysis of the injunction factors, especially likelihood of success on the merits)? For example, a final judgment declaring that such-and-such a practice is facially (not merely as-applied) unconstitutional.
I don’t understand why ending the filibuster would set a bad precedent. I agree that the Democrats will end the filibuster the first chance they get (when they have 51 votes in the Senate, the House, and the White House). As much as I believe the Democrats are evil, they know how to use power and the Republicans don’t. It’s put up or shut up time. Propose a Constitutional amendment to require 60 votes in the Senate to pass legislation. If the Democrats balk, end the filibuster now and pass laws cutting spending, ensuring fair elections, and a reasonable immigration policy. The alternative is the Democrat agenda: rampant voter fraud, DC and PR as states, a packed Supreme Court, punitive taxes on the productive, amnesty (and citizenship) for 20-30 million illegals, and more free stuff for everyone! The Democrats will NEVER support a Constitutional amendment to require the filibuster and all their huffing and puffing about the filibuster protecting minority rights is hypocritical. Call their bluff and then blow up the filibuster and pass popular bills on party line votes. The irony is that Republican priorities are actually popular–yet the Republicans will dither away their advantage and we’ll be stuck with unpopular Democrat mandates. Republicans are going to “principle” themselves into a permanent minority in a socialist state.
In many instances of governmental over-reach, there’s a “mutually assured destruction” component that used to keep both sides in check.
Recently, that’s not been the case. The Democrats have done whatever the heck they want because a) I think they truly believed they’d rigged the system to the point that they’d never be out of power again and b) They don’t believe the tactics they use against the Republicans will ever be used against them.
The court rulings for example. They can get activist leftist judges to stymie the
Trump agenda because they know if the roles were reversed, the Republicans could judge shop all they want, they would not be able to find enough activist Republican judges to do their bidding. Conservative judges, by nature, tend to rule on the law regardless of their personal beliefs. That’s kind of what defines them as conservative. Democrats know this and are taking advantage of it.
They can play the “lawfare” game all they want with little fear of turn-about under the next democrat president.
Maybe this era will piss enough conservative judges off to turn that situation around in the future…but I doubt it. Again…part of the difference between conservatives and liberals: Conservatives try to preserve the foundation (the process) while liberals only care about getting the results they want. Liberals only care about “due process” (or separation of powers, or precedent, or even constitutional rights) when it serves their purposes.
@Chad King (and general comment on the post)…
I would just end the filibuster rule anyway. The Senate by its very nature (2 reps per state regardless of state population) is counter-majoritarian. Why the contrived add-on?
“I would just end the filibuster rule anyway. The Senate by its very nature (2 reps per state regardless of state population) is counter-majoritarian. Why the contrived add-on?”
For a long, long time, the filibuster was only used to prevent highly controversial bills from being passed by a small majority when a large minority of the states opposed it. It was especially used sparingly when it meant those filibustering had to remain on the floor speaking to keep it going.
When the changed it to the “gentleman’s rule” that all one party had to do was refuse to vote to end debate and didn’t actually have to continue…you know…debating…things started going downhill.
Now it’s not used to stop controversial things except by Republicans. When in power the democrats are still able to implement most of their agenda (and court appointments) because Republicans lack the fortitude to actually play the game the way the Democrats do. When Republicans are in power, the Dems filibuster anything and everything except perhaps naming bridges after other Democrats.
So we’ve inevitably ratcheted further and further to the left government-wise.
I also think the Republican leadership kind of like being in the minority…then they can just cry “we can’t do anything because we’re in the minority” whereas, they have no excuses for their inaction when they have the majority…except, of course, the filibuster, which they could change if they wanted to…see “lack of fortitude” above.
The thing is, Republican leadership really doesn’t want to do any of the things that the people who elected them want, they like the feeding trough to be open and insider trading, and the cool perks they can get by agreeing to give big business and big pharma and big agro and big (fill in the blank) what they want rather than giving the little people what we demand.
But I digress.
Ending the filibuster would take fortitude. Something Republican leadership finds in short supply.
The filibuster, like any other Senate rule, is set aside under Senate Rule XX any time 51 votes want to, and this happens more often than most of us realize. Its use is purely theatrical. It’s a device for the majority party’s leadership to avoid accountability to its public position. As long as it continues to fool people it will be a rule.
There are other ways besides Rule XX that are sometimes used, they may tie whatever they want to pass to something that only requires 51 votes.
Niketas:
Of course it’s a rule that can be suspended by a vote. I don’t think anyone here disputes that. It’s not a law or anything of the sort.
The point, however, is that the rule has a reason behind it – to make it harder to pass something in the Senate without significant bipartisan support. The idea is that parties should be discouraged from passing transformational legislation by a simple majority, and that this benefits BOTH parties in the end if (and only if) both parties understand and want those benefits.
It’s been suspended for judicial nominations and it doesn’t apply to budget bills that can be passed through reconciliation. I have little doubt that Democrats would vote in a heartbeat to end it for all bills if they could get 51 votes to do so. When Biden was president they tried, but Manchin and Sinema wouldn’t come along and so it didn’t pass.
Sailorcurt:
The Democrats failed to pass their radical agenda, for the most part (HR1; DC statehood) during the Biden years because they couldn’t do away with the filibuster. Republicans certainly blocked them, as did Manchin and Sinema.
Republican Senate majorities in recent decades have been small, often very small. These majorities have always contained enough RINOs (Collins, Murkowski, etc.) to block the suspension of the filibuster and sometimes to block transformative legislation even if the filibuster was suspended. And if a RINO like Collins no longer is Maine’s senator, I believe that Maine would elect a Democrat and so primarying Collins would have done no good. Alaska is more complex; please see this and also this.
I agree that I oversimplified things a bit. I tend to be a bit cynical if you’ve never noticed.