AG Barr: 'Nationwide Injunctions Undermine the Democratic Process; Violate Constitutional Principles'

By Susan Jones | May 22, 2019 | 6:05 AM EDT

Attorney General William Barr (Photo by Chip Somodevilla/Getty Images)

( - In a speech to the American Law Institute on Tuesday, Attorney General William Barr warned against "the novel and growing use of nationwide injunctions."

To make his case, Barr used President Obama's Deferred Action for Childhood Arrivals (DACA) program as an example of executive action, never passed by Congress, that gave legal status to aliens brought to this country as children.

What Obama implemented by executive action President Donald Trump tried to wind down by executive action, but two district judges in California and New York prevented Trump from ending DACA by issuing nationwide injunctions.

"This saga highlights a number of troubling consequences of the rise of nationwide injunctions," Barr said:

"First, these nationwide injunctions have frustrated presidential policy for most of the president’s term with no clear end in sight. We are more than halfway through the president’s term, and the administration has not been able to rescind the signature immigration initiative of the last administration, even though it rests entirely on executive discretion."

Barr noted that the Justice Department has tried for more than a year to get the Supreme Court to review the lower courts’ decisions keeping DACA in place, but so far, the Supreme Court has not granted any of the requests, and is not likely to until mid-2020 at the earliest -- right before the next presidential election.  "It is hard to imagine a clearer example of the stakes of nationwide injunctions," Barr said.

“Second, these injunctions have injected the courts into the political process,' Barr said. "The first injunction from the Northern District of California came down on January 9, 2018, in the middle of high-profile legislative discussions. Hours earlier that same day, President Trump allowed cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress over the DREAM Act, border security, and broader immigration reform.

“Of course, once a district judge forced the Executive Branch to maintain DACA nationwide for the indefinite future, the president lost much of his leverage in negotiating with congressional leaders who wanted him to maintain DACA nationwide for the indefinite future. Unsurprisingly, those negotiations did not lead to a deal.”

"So what have these nationwide injunction wrought?" Barr asked. "Dreamers remain in limbo, the political process has been pre-empted, and we have had over a year of bitter political division that included a government shutdown of unprecedented length. Meanwhile, the humanitarian crisis at our southern border persists, while legislative efforts remain frozen as both sides await the courts’ word on DACA and other immigration issues."

Barr called it unfortunate that the "new status quo of a DACA policy supported only by injunction has persisted."

He went on to highlight five ways in which nationwide injunctions are inconsistent with the American legal system:

-- They violate the separation of powers. (The attorney general argued that courts have no authority to “strike down” laws, but only to resolve disputes among parties. But today, he said, courts have assumed the role of gatekeeper, with a judge acting as a one-man Council of Revision. "That not only embraces a judicial role that the Framers rejected, but also diminishes the constitutional prerogatives of Congress and the Executive," Barr said.)

-- Nationwide injunctions inflate the role of individual district judges within the Judiciary, giving a single judge the unprecedented power to render irrelevant the decisions of every other jurisdiction in the country.

-- Nationwide injunctions undermine public confidence in the Judiciary. When a single judge can freeze policies nationwide, plaintiffs go court shopping. Thus, requests for nationwide injunctions flooded Texas district courts in the Obama Administration, while similar requests have landed in California and New York in the Trump Administration.

-- Nationwide injunctions create unnecessary and unhelpful emergencies. Here, Barr noted that when a nationwide injunction constrains a significant executive policy, the Justice Department has little choice but to seek emergency relief. "No one benefits from emergency litigation — not the Government, not the plaintiffs, not the courts. But the alternative is for the government to wait months or years for appeals to run their course before the Executive may implement its policy at all."

-- Nationwide injunctions conflict with the nation's litigation system, treating the first case as if it will be the last, unlike the Supreme Court, which issues nationwide rulings following earlier efforts by the lower courts.

Barr concluded:

To end where I began, I raise the problem of nationwide injunctions as a matter, not of partisanship, but the rule of law. One can easily imagine a future Administration’s policies — say, on climate change or employee rights — freezing under nationwide injunctions for years on end.

Imagine, for example, if a new Administration were to abandon a “zero tolerance” policy on immigration offenses only to see a district court order it back in place. One could draw up countless other scenarios. I do not want to see any of them.

Nationwide injunctions undermine the democratic process, depart from history and tradition, violate constitutional principles, and impede sound judicial administration, all at the cost of public confidence in our institutions and particularly in our courts as apolitical decision-makers dispassionately applying objective law.

The Justice Department will continue to oppose nationwide injunctions, as we have across administrations of different ideological perspectives. I hope you will make your voices heard on this issue too. At a time of deep differences on so many legal and policy issues, this is one area where lawyers and citizens should agree.

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