Beth Williams, head of the U.S. Justice Department’s Office of Legal Policy, on Thursday denounced “limitless” nationwide injunctions that she said were being employed with “dogged determination” against President Donald Trump.
Williams, in a speech at the American Bar Association’s “ABA Day,” said courts issued an average of only 1.5 nationwide injunctions per year against the Reagan, Clinton and George W. Bush administrations, and 2.5 per year against the Obama administration, according to Justice Department estimates.
“In President Trump’s first year in office, however, judges issued a whopping 20 nationwide injunctions—an eightfold increase,” said Williams, a former Kirkland & Ellis partner. “This matches the entire eight-year total of such injunctions issued against President Obama during his two terms. This enormous increase should draw alarm.”
Williams, confirmed to the policy post in August, echoed earlier criticisms by U.S. Attorney General Jeff Sessions. The “rash of limitless injunctions,” Williams said, upsets the constitutional balance and respect for the three co-equal branches of government. Injunctions should be limited to the parties before the court, she said.
“That is not a partisan problem; it can be used—and has been used—against presidents of both parties,” Williams added. “But the dogged determination with which it has been employed against this president has thrown the problem into sharp relief.”
Courts have issued nationwide injunctions against such Trump administration policies as its phaseout of Deferred Action for Childhood Arrivals, threats to eliminate federal grants to sanctuary cities, attempts to reinstate the transgender military service ban, separation of refugees from their families and rollback of contraceptive insurance coverage rules.
Williams said she is “hopeful” that the U.S. Supreme Court soon will rule that judges must limit injunctions to the parties in the cases before them and not apply the nationwide.
Her hope comes less than two weeks before the Supreme Court hears arguments April 25 in Trump v. Hawaii, a challenge involving the Trump administration’s executive order banning foreign nationals from predominantly Muslim nations from entering the United States.
U.S. Solicitor General Noel Francisco has asked the justices to decide, among other issues, whether the lower court’s global injunction against the travel ban is impermissibly overbroad.
“Lower courts increasingly grant categorical injunctive relief barring enforcement of federal policies everywhere at the behest of individual litigants,” Francisco wrote in his brief. “That practice not only is inconsistent with settled constitutional and equitable rules, but also disserves the orderly, evenhanded development of the law.”
He urged the justices to “reject that deeply misguided practice and reiterate that injunctions should be tailored to redress the plaintiffs’ own cognizable, irreparable harms.”
“A nationwide injunction is appropriate. Where a policy is facially invalid, courts have the authority to enjoin it in full,” Katyal wrote in March. “A nationwide injunction in this case would prevent the splintering of immigration enforcement and ensure that respondents are accorded complete relief.”
The American Bar Association itself, in an amicus brief in the case, urged the justices not to embrace the Justice Department’s push to restrict injunctions to the plaintiffs’ own alleged harms.
“The government’s distaste for global injunctions is understandable. But the rule the government invites this court to adopt has no basis in this court’s precedent, which has long recognized the broad remedial discretion federal courts enjoy in redressing executive actions that transgress statutory or constitutional bounds,” ABA president Hilarie Bass wrote in an amicus brief, filed with a team from Wilmer Cutler Pickering Hale and Dorr.
The justices in December blocked the preliminary injunction against the travel ban issued by a federal district court and affirmed by the U.S. Court of Appeals for the Ninth Circuit. The travel ban is now fully in effect pending the court’s decision in Trump v. Hawaii.