A House panel heard Tuesday from experts about curbing the ability of district court judges to impose nationwide injunctions, which have been a thorny problem for President Donald Trump’s agenda.
“This is not new, but it is not old. For 180 years of our nation, there were no such injunctions,” said Rep. Darrell Issa, the chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet, during the hearing.
“Only beginning in 1963 did district courts believe in relatively small amounts that they could do this without multiple plaintiffs from multiple circuits,” Issa, R-Calif., added. “From 2001 to 2023, the number grew to 96, but an incredible 64 of those occurred during only four years of President Trump, meaning more than half of all injunctions in this millennium, this century, was against President Trump in his first four years.”
“That used to seem like a lot, but during President Trump’s first nine weeks in office this year, he has already faced more nationwide injunctions than President Joe Biden did in his entire four years,” Issa continued.
Issa’s subcommittee held a joint rhearing with the House Judiciary Subcommittee on the Constitution and Limited Government.
Former House Speaker Newt Gingrich warned the House panel that the national judgments from a single lower court judge poses a “potential constitutional crisis.”
“Fifteen district judges effectively seized control of various executive branch duties in the first six weeks of the current presidency through nationwide injunctions,” Gingrich said during the hearing. “This is potentially a judicial coup d’état and clearly violates the Constitution and more than 200 years of American history.”
Gingrich noted that since Trump was inaugurated in January, lower courts imposed 15 nationwide injunctions of his policies. That’s compared to six against President George W. Bush in his eight years in office, 12 nationwide injunctions against President Barack Obama in his eight years, and 14 such injunctions against President Joe Biden during his single term in office.
However, Gingrich dismissed impeaching judges as a viable option. A realistic alternative, he argued, would be to eliminate the individual district courts.
On his way out of office, after losing the 1800 election, President John Adams appointed 12 federal judges with the goal of thwarting the presidency of his victorious rival Thomas Jefferson.
“President Jefferson concluded impeaching the judges would take too much time. He and the Congress simply abolished the courts in which they served in the Judiciary Act of 1802. This is a constitutional balance of power. The legislative and executive branches can reshape the judiciary branch. It is a useful reminder in considering the current situation.”
Democrats argued the outrage should be directed at Trump, not the judges.
Rep. Hank Johnson, the ranking member of the subcommittee on courts, ticked off a list of what he called “retaliatory” executive orders from “King Trump.”
“Trump acts first, he deports first. He revokes funding first. He blacklists law firms first, and then questions anyone who challenges him later,” Johnson, D-Ga., said. “Somehow, in spite of all this, we are here today to talk about the overreach of the federal courts, not the overreach of the executive branch official who is doing the overreaching.”
“Our Republican colleagues want us to believe that simply because the courts are exercising their Article 3 power of equitable relief to temporarily halt some of Trump’s excessive executive action, it is a sign of rot in our judicial system, that it is somehow our courts and judges, not our president, who have gone rogue and are overarching,” he added.
Paul Larkin, a senior legal research fellow at The Heritage Foundation, said that “the practice of issuing nationwide injunctions outside the confines of a certified nationwide class action is mistaken as a matter of law and unwise as a matter of policy.”
“As you know, it has happened to every administration over the course of this 21st century, from the George W. Bush administration to the present,” Larkin later added during the hearing. “Each party has been subject to this practice.”
Such injunctions can result in conflicting nationwide judgments, he added.
“You can wind up with injunctions going one way or another way because a court in Maine and a court in Alaska can come out the opposite way in a case,” Larkin said.
