U.S. Attorney General Jeff Sessions. Credit: Diego M. Radzinschi/ALM

U.S. Attorney General Jeff Sessions has railed against trial and appellate judges who’ve issued nationwide injunctions that check the Trump administration. Still, government lawyers failed to convince the U.S. Supreme Court this past term to make any grand announcement about the use of such injunctions.

Sessions on Thursday took another step, issuing formal guidance to civil litigation heads across the country that provide legal arguments prosecutors can use to rebut any effort to nationally enjoin administration policies. The talking points aren’t entirely new—Sessions and other Main Justice lawyers have advanced many of these arguments—but they are neatly collected in a single memo, which The National Law Journal posted below.

“Department litigators should remind courts that the constitutional limitations on their authority do not permit them to issue injunctions that extend beyond the parties to the case before them if such action is unnecessary to provide relief to the parties to the case,” the memo reads. Also: National injunctions restrict “organic development and discussion of the law.”

The memo points to U.S. Supreme Court Justice Clarence Thomas’s dissent in the travel ban ruling from June. Thomas, writing alone, expressed doubt about the power of federal district judges to issue nationwide injunctions.

“I am skeptical that district courts have the authority to enter universal injunctions,” Thomas wrote in the case Trump v. Hawaii. “These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with long-standing limits on equitable relief and the power of Article III courts. If their popularity continues, this court must address their legality.”

Lawyers for Hawaii—Hogan Lovells partner Neal Katyal led the team—argued in defense of the nationwide injunction in the travel ban case. “As the lower courts found, that remedy prevents the violations in full, redresses respondents’ injuries, and maintains the ‘uniform’ system of immigration that Congress and the Constitution demand,” Katyal wrote in a brief.

Sessions said in a statement Thursday:

“Increasingly, we are seeing individual federal district judges go beyond the parties before the court to give injunctions or orders that block the entire federal government from enforcing a law or policy throughout the country. This kind of judicial activism did not happen a single time in our first 175 years as a nation, but it has become common in recent years. It has happened to the Trump administration 25 times in less than two years. This trend must stop. We have a government to run. The Constitution does not grant to a single district judge the power to veto executive branch actions with respect to parties not before the court. Nor does it provide the judiciary with authority to conduct oversight of or review policy of the executive branch. These abuses of judicial power are contrary to law, and with these new guidelines, this department is going to continue to fight them.”

There’s a disclaimer at the end of Sessions’s memo that says, essentially, plaintiffs should not try to use the guidelines against the government in any court case.

The guidelines “are intended only for Department of Justice litigators and should not be relied upon by any party as a limitation on any department attorney’s authority to assert any argument in any particular case or as a standard against which the government’s arguments in briefs are to be measured.”


Read the full guidance memo here:


Read more:

Clarence Thomas, Alone, Asserts National Injunctions Are ‘Historically Dubious’

DOJ Policy Head Scolds ‘Dogged Determination’ to Enjoin Trump

SF Wins Sanctuary Fight Against Trump, but Court Tosses National Injunction

Appeals Judge: Don’t End Nationwide Injunctions. (But Here’s a Plan for Them.)

Jeff Sessions Rails Against ‘Super Legislator’ Judges