Neil Gorsuch's Savage Rebuke...

Tyler O'Neil reportong for PJMedia

Neil Gorsuch Issues 

Savage Rebuke to Activist Judges and 

Nationwide Injunctions

On Monday, the Supreme Court allowed the Trump administration's public charge rule to go into effect, striking down a nationwide injunction from a New York judge. The rule allows the government to deny green cards to immigrants who receive public assistance and are therefore considered a "public charge."

In addition to the 5-4 decision allowing the rule to go into effect, Supreme Court Justice Neil Gorsuch issued a concurring opinion rebuking activist judges and their rush to apply "nationwide injunctions" against Trump administration policies.

"Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of 'nationwide,' 'universal,' or 'cosmic' scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case," Gorsuch wrote.

Indeed, since Trump's inauguration, judges at various levels have issued injunctions to stall or prevent administration policy opposed by liberal groups and Democratic attorneys general. This is an egregious abuse of judicial review, and Gorsuch called the judges out for it.

"Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III," he explained.

In the current case, Department of Homeland Security v. New York, four different courts issued injunctions: the Northern District of California prevented the policy in California, Oregon, Maine, Pennsylvania, and Washington, D.C.; the Eastern District of Washington issued a nationwide injunction; the District of Maryland issued another nationwide injunction; and the Northern District of Illinois prevented the policy from taking effect in Illinois. Federal circuit courts struck some of these down.

"Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit. The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here," Gorsuch noted.

"It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions," he wrote.

These nationwide injunctions create confusion and "tend to force judges into making rushed, high-stakes, low-information decisions."

"The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues," the Supreme Court justice insisted.

"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," Gorsuch explained.

Worse, it is possible that plaintiffs can win "conflicting nationwide injunctions."

"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. A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay," he noted. "And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari."

"What in this gamesmanship and chaos can we be proud of?" Gorsuch asked, pointedly.

Tyler O'Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.