When Congress Won’t Act, Should One Judge Be Able To Overturn Nationwide Orders?

For years, judges across the country have ruled on controversial immigration policies. But maybe they shouldn’t.

By Jill Ament and Alexandra Hart January 17, 2018 11:19 am|

As the nation waits for lawmakers to decide what to do, if anything, about DACA, a federal judge in California has decided not to wait for Congress.

Last week the judge, based in San Francisco, used a local case to issue a nationwide injunction – an order to keep the Trump administration from pulling the plug on DACA. The Department of Justice has asked the Supreme Court to intervene.  Whether you like DACA or not, a growing number of legal scholars are questioning the means to the end. Should a single judge be able to decide a question for a whole country?

Josh Blackman, an associate professor of law at South Texas College of Law in Houston, says this strategy is becoming more common.

“During the Obama presidency, Texas would seek nationwide injunctions in Brownsville and Lubbock and other places in Texas,” he says. “And now, during the Trump presidency, blue states are seeking nationwide injunctions in places like San Francisco and Brooklyn. This is no accident that the suits are being filed here.”

Blackman says nationwide policy can change overnight just by filing a case in a place where a judge is likely to agree. Texas Gov. Greg Abbott, then the state’s attorney general, used this tactic to challenge the Obama immigration policy known as DAPA in 2014. He chose to file in Brownsville, not Austin.

“At the time, there was basically only one judge in Brownsville who could have accepted the case,” Blackman says, “and he was someone who was known to be quite amenable to those sorts of challenges.”

He says he suspects the Supreme Court will take action to rein in this practice because, as things stand right now, the nationwide injunctions subvert the traditional legal system and force the Supreme Court to get involved in cases.

 

Written by Jen Rice.