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JD Vance caused a firestorm on Sunday when he posted on X, formerly Twitter: “If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power." The vice president’s remarks came in response to the growing list of lower-court judges who have attempted to halt the new administration’s agenda with a slew of injunctions. They have directed Team Trump to release federal grants to nonprofits that the administration has frozen for auditing, for example, and blocked the administration from applying its interpretation of the 14th Amendment, according to which children born to illegal immigrants aren’t automatically entitled to US citizenship. Vance hit back at the judges for trying to restrict the president in his own sphere and overriding his decisions as to how best to carry out the law (the execute in the “executive branch”). As the Harvard law professor Adrian Vermeule put it an X post, reshared by Vance, “judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers”.
But the judges’ actions raise another vexing constitutional question: can a lower court with narrow local jurisdiction render so-called nationwide injunctions that purport to bind every American citizen? By seemingly refusing to comply, the Trump administration is effectively answering: no. In doing so, according to The New York Times, the Trumpians have triggered an unprecedented “constitutional crisis”. In recent years, as legal progressives have sought to limit presidential power when it’s held by the other side, it’s become a sort of truism that a lower court in Hawaii or, say, New Hampshire can put a stop to a federal policy covering the whole nation.
In fact, the argument isn’t obvious at all, and there is good reason to believe that America’s Founding Fathers would have been baffled by such gross assertions of judicial hegemony. Start with the constitutional text. The first clause of Article III of the Constitution reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Read that carefully once more. This so-called vesting clause has at least two notable elements.
First, the only court that shall be established is the US Supreme Court. All other lower courts exist solely at the discretion of Congress, as they have since the Judiciary Act of 1789 — one of the first statutes the First Congress passed. But something created by statute can be taken away by statute. The Federalist’s Sean Davis might have appeared to be trolling when he noted on X that “Congress would be well within its right to just eliminate” any lower courts. In fact, Davis was restating a basic fact about America’s constitutional structure. That precarious state of the lower courts should already tell us something about their authority to neuter executive-branch policy for the whole country.
Second, and more relevant, is what the “judicial Power” means as it is used in Article III of the Constitution. As the University of Chicago Law School professor Will Baude argued in a highly influential 2008 law-review article, “the judicial power is the power to issue binding judgments and to settle legal disputes within the court’s jurisdiction”.
The deepest question raised by this is the following: what is a federal court’s legitimate jurisdiction when it comes to issuing injunctions — a form of “equitable remedy” in legalese, meaning the court tells one party to perform some act (rather than award damages). In this case, for example, it’s courts ordering the executive branch that it has to automatically grant US citizenship to children born to unlawful migrants.
The answer is simple: when it comes to this kind of remedy, only the named parties to a particular lawsuit are bound by the judgment. So to follow our example: a lower court can only order the federal government to treat as an automatic citizen a specific infant born on US soil to an illegal mother from Honduras. Call him Baby Doe. But a lower court lacks the authority to force the executive branch to grant automatic citizenship to Baby Doe and all other similarly situated children nationwide.
“Nationwide injunctions applying to all people across a vast continental nation have no basis in the Anglo-American legal tradition.”
As then-Stanford law professor Jonathan Mitchell argued in a 2018 law-review article, an “injunction is nothing more than a judicially imposed non-enforcement policy” that “forbids the named defendants to enforce the statute” — or executive order — “while the court’s order remains in place.” There is no broader “writ of erasure” that permits a lower court to simply “strike down” a statute or an executive order.
Nationwide injunctions applying to all people across a vast continental nation have no basis in the Anglo-American legal tradition. Rather, the proper scope of a federal court’s power to issue such remedies is restricted to “the defendant’s conduct only with respect to the plaintiff”, as Samuel L. Bray, the Notre Dame legal scholar, argued in a 2017 law-review article
Sceptics of nationwide injunctions aren’t limited to the legal academy. They include Justice Clarence Thomas of the Supreme Court. As Thomas explained in his 2018 concurring opinion in the landmark Trump v. Hawaii case, historically, “American courts of equity did not provide relief beyond the parties to the case”, because “for most of our history, courts understood judicial power as fundamentally the power to render judgments in individual cases”. Presciently, Thomas concluded his opinion by warning: “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so”.
That day has not yet come, but it might soon enough, as the clash between the second Trump administration and legal progressives reaches a crescendo.
unherd.com
Meanwhile, talk of the administration ushering tyranny by defying nationwide injunctions is overblown, to put it generously. Throughout US history, presidents have contested the scope and the binding nature of the “judicial Power”. As the Yale scholar professor Keith Whittington laid out in his 2009 book, Political Foundations of Judicial Supremacy, the debate over who exactly has the last word when it comes to interpreting and enforcing the Constitution goes back to the beginnings of the republic.
But the judges’ actions raise another vexing constitutional question: can a lower court with narrow local jurisdiction render so-called nationwide injunctions that purport to bind every American citizen? By seemingly refusing to comply, the Trump administration is effectively answering: no. In doing so, according to The New York Times, the Trumpians have triggered an unprecedented “constitutional crisis”. In recent years, as legal progressives have sought to limit presidential power when it’s held by the other side, it’s become a sort of truism that a lower court in Hawaii or, say, New Hampshire can put a stop to a federal policy covering the whole nation.
In fact, the argument isn’t obvious at all, and there is good reason to believe that America’s Founding Fathers would have been baffled by such gross assertions of judicial hegemony. Start with the constitutional text. The first clause of Article III of the Constitution reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Read that carefully once more. This so-called vesting clause has at least two notable elements.
First, the only court that shall be established is the US Supreme Court. All other lower courts exist solely at the discretion of Congress, as they have since the Judiciary Act of 1789 — one of the first statutes the First Congress passed. But something created by statute can be taken away by statute. The Federalist’s Sean Davis might have appeared to be trolling when he noted on X that “Congress would be well within its right to just eliminate” any lower courts. In fact, Davis was restating a basic fact about America’s constitutional structure. That precarious state of the lower courts should already tell us something about their authority to neuter executive-branch policy for the whole country.
Second, and more relevant, is what the “judicial Power” means as it is used in Article III of the Constitution. As the University of Chicago Law School professor Will Baude argued in a highly influential 2008 law-review article, “the judicial power is the power to issue binding judgments and to settle legal disputes within the court’s jurisdiction”.
The deepest question raised by this is the following: what is a federal court’s legitimate jurisdiction when it comes to issuing injunctions — a form of “equitable remedy” in legalese, meaning the court tells one party to perform some act (rather than award damages). In this case, for example, it’s courts ordering the executive branch that it has to automatically grant US citizenship to children born to unlawful migrants.
The answer is simple: when it comes to this kind of remedy, only the named parties to a particular lawsuit are bound by the judgment. So to follow our example: a lower court can only order the federal government to treat as an automatic citizen a specific infant born on US soil to an illegal mother from Honduras. Call him Baby Doe. But a lower court lacks the authority to force the executive branch to grant automatic citizenship to Baby Doe and all other similarly situated children nationwide.
“Nationwide injunctions applying to all people across a vast continental nation have no basis in the Anglo-American legal tradition.”
As then-Stanford law professor Jonathan Mitchell argued in a 2018 law-review article, an “injunction is nothing more than a judicially imposed non-enforcement policy” that “forbids the named defendants to enforce the statute” — or executive order — “while the court’s order remains in place.” There is no broader “writ of erasure” that permits a lower court to simply “strike down” a statute or an executive order.
Nationwide injunctions applying to all people across a vast continental nation have no basis in the Anglo-American legal tradition. Rather, the proper scope of a federal court’s power to issue such remedies is restricted to “the defendant’s conduct only with respect to the plaintiff”, as Samuel L. Bray, the Notre Dame legal scholar, argued in a 2017 law-review article
Sceptics of nationwide injunctions aren’t limited to the legal academy. They include Justice Clarence Thomas of the Supreme Court. As Thomas explained in his 2018 concurring opinion in the landmark Trump v. Hawaii case, historically, “American courts of equity did not provide relief beyond the parties to the case”, because “for most of our history, courts understood judicial power as fundamentally the power to render judgments in individual cases”. Presciently, Thomas concluded his opinion by warning: “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so”.
That day has not yet come, but it might soon enough, as the clash between the second Trump administration and legal progressives reaches a crescendo.
Anti-Trump judges sparked a legal crisis
unherd.com
Meanwhile, talk of the administration ushering tyranny by defying nationwide injunctions is overblown, to put it generously. Throughout US history, presidents have contested the scope and the binding nature of the “judicial Power”. As the Yale scholar professor Keith Whittington laid out in his 2009 book, Political Foundations of Judicial Supremacy, the debate over who exactly has the last word when it comes to interpreting and enforcing the Constitution goes back to the beginnings of the republic.
