Jeff Sessions Doesn’t Like Nationwide Injunctions, Except When He Does

Attorney General Jeff Sessions has an article at National Review denouncing so-called "nationwide injunctions." The article—adapted from a speech to the Federalist Society—argues that courts shouldn't be allowed to issue injunctions that outright ban the government from enforcing a law anywhere in the country.

But Sessions doesn't really believe that. He doesn't believe it because nobody does, except perhaps a few especially cranky law professors. There are important debates to be had about the drawbacks of nationwide injunctions. (For example, they can incentivize "forum-shopping," in which allied plaintiffs file similar cases in multiple jurisdictions in the hope that at least one will obtain a favorable injunction.) But when these arguments spill out of legal academe into the public sphere, it's almost always just because someone is mad that his agenda has been frustrated.

As recently as 2015, Republicans were all about nationwide injunctions. They cheered when a judge blocked the Obama administration's rule raising the minimum pay for overtime exemption, while left-leaning groups complained about judicial overreach. The same thing happened when another judge issued a nationwide injunction striking down the Deferred Action for Parents of Americans program. "Thankfully, over a year ago, Judge Andrew Hanen in the United States District Court for the Southern District of Texas issued an injunction that stopped the Obama Administration from proceeding with its lawless immigration system," proclaimed one Republican senator. His name: Jeff Sessions.

It's fun to dunk on Sessions, but here's the thing: Whatever your politics, nationwide injunctions aren't your friend or your enemy. They're just one tool in a judge's kit, albeit a particularly big and smashy one. The handiwork can be progressive, conservative, libertarian, eco-anarchist, whatever. Objecting to them on consequential grounds only leads back to hypocrisy.

Less hypocritical are objections to nationwide injunctions on formal grounds—that is, arguing that they represent an improper usurpation of a legitimate executive or legislative power. But this doesn't get you very far, either.

It's true that nationwide injunctions are inherently more "political" than those that are more limited in scope, in that they fully halt the implementation of policies produced by political processes. But although American judges have long recognized that interfering with political decisions is dangerous, sometimes that's their job. Virtually nobody believes that the courts shouldn't step in if, tomorrow, Congress and the president enacted a law—say, abolition of trial by jury—that violates a clearly established constitutional right.

Sessions suggests that in such a case, courts should issue injunctions which only block the government from enforcing the unconstitutional law against the person who brought the claim to court. But does anyone think that Sessions would apply that same logic to, say, a law mandating universal gun confiscation? Of course not, and for good reason. When the rights a person considers crucial are at stake, the inadequacy of limiting courts to "plaintiff-protective" injunctions becomes obvious—which is why people tend to apply the argument only to rights they politically disfavor.

When a democratic government violates individual rights, our system relies on courts to correct the violation. In the course of doing that, judges have to make, well, judgments about how severe the violation is and how dramatic a remedy is needed to correct it. In the great majority of cases where a politician complains about a nationwide injunction, what he's really doing is second-guessing the judge's judgment, not making a principled argument about what remedies should be available.

Such second-guessing is everyone's right, but there's already a way to do it that doesn't eliminate a power that almost everyone supports: appeal. Precisely because of their broad scope, appellate courts usually subject nationwide injunctions to intense scrutiny, and they have a pretty good record of catching the egregious ones.

Some of Sessions' arguments are transparently silly. He says, for example, that such injunctions are illegitimate because they prevent the government from enacting the policies its constituents prefer. But the crux of the American constitutional order that his speech praises so vigorously is that no amount of popular or political support entitles a law to judicial deference if it violates the Constitution. If Sessions doesn't like that, maybe he should quit his job and go be attorney general of Wales, where they don't have judicial review.

Otherwise, he should just quit whining, and go file his appeals. For better or worse, that's what we pay him to do.