Updated September 12, 2019: On Wednesday, September 11, the Supreme Court issued a stay of Judge Tigar's national injunction. Two justices dissented from issuing the stay.
On September 9, U.S. District Court Judge Jon Tigar reinstated a national injunction blocking a rule that would make ineligible any asylum seekers who first passed through another country without applying for U.S. asylum there. The rule could affect tens of thousands of migrants and refugees and make it extremely difficult for many to obtain asylum.
Earlier this summer the U.S. Ninth Circuit Court of Appeals limited the universal injunction to the states for which the Ninth Circuit had jurisdiction. Namely, California and Arizona. On remand, and despite criticisms about the increasing use of universal injunctions, Judge Tigar reinstated his nationwide injunction. Judge Tigar wrote that “there is a robust jurisprudence supporting the issuance of nationwide injunctions, especially in immigration cases.” He argued the most plausible reading of the Ninth Circuit’s decision left him the option to choose this route.
The 9th Circuit disagreed. The next day, September 10, the 9th Circuit again limited the injunction to California and Arizona.at the request of the Trump Administration.
The Trump Administration has prioritized the issue of nationwide injunctions. Attorney General William Barr called for an end to nationwide injunctions in a September 5 Wall Street Journal op-ed. Nor are these sentiments new. In a May speech at the American Law Institute, Attorney General Barr said that national injunctions are “perverse.” Rather than having an issue litigated fully in lower courts, with multiple jurisdictions weighing in before being taken up by the Supreme Court, national injunctions from district courts create an all or nothing fight in one local jurisdiction.
Vice President Mike Pence also made known the Administration’s view in a Federalist Society event last May, when he said the Trump Administration would “seek opportunities” to put the question of national injunctions before the Supreme Court. Sure enough, on August 26th, Noel Francisco, the solicitor general, asked the Supreme Court to lift Judge Tigen’s injunction. The solicitor general asked this after the Ninth Circuit limited the injunction to California and Arizona on appeal, and prior to Judge Tigar reissuing the national injunction. On September 11, the Supreme Court issued a stay of the injunction.
Attorney General Barr and the Trump Administration are not alone in questioning the frequency of national injunctions. The Obama Administration ran into issues with national injunctions during President Obama’s second term. And they are increasing. According to The New York Times, judges in liberal-leaning jurisdictions have issued a national injunction blocking a Trump Administration policy once a month, on average, during President Trump’s term.
Some current Supreme Court justices may be sympathetic to limiting the authority of district court judges to issue national injunctions. As Attorney General Barr noted in his op-ed, Justice Clarence Thomas offered a blunt criticism of judicial injunctions in Trump v. Hawaii in 2018. Justice Thomas wrote in a concurring opinion that if district courts continue to issue nationwide injunctions at this rate, “this court is dutybound to adjudicate their authority to do so.”
As Judge Tigar’s order on September 9 demonstrates, however, district court judges are still within their authority to issue nationwide injunctions. The fight over this particular injunction demonstrates how divisive they can be.