Remarks as Prepared for Delivery

Thank you for the introduction, Dean Morrison. I’d also like to thank ACUS for inviting me to speak, and Deputy Attorney General Rosen for his important remarks and leadership on this issue.

As Dean Morrison mentioned, I am the Assistant Attorney General of the Office of Legal Policy at DOJ. I am grateful to be here to discuss the Department of Justice’s position on nationwide injunctions.

Across administrations of both parties, the Department of Justice has taken the position that nationwide injunctions are improper. The Obama Administration argued forcefully against them, just as the Trump Administration does now. Nationwide injunctions are problematic because they reach beyond the case or controversy that is actually before the court. The Department has argued that nationwide injunctions—which go beyond what is necessary to provide complete relief to the parties in the case—violate Article III of the Constitution and exceed time-honored limitations on equitable remedies.

But I’d like to set that aside for a moment and talk about the practical implications of nationwide injunctions. Many proponents of nationwide injunctions make a fairly utilitarian argument: they are justified, say the proponents, because they provide a necessary check on the Executive and Legislative branches.

The point today is that if you care about balanced checks on the elected branches, you should oppose unlawful nationwide injunctions. There are several reasons for this.

First, nationwide injunctions threaten to undermine the judiciary’s role in our constitutional system by depriving its decisions of their public legitimacy. The Judicial Conference has noted that “[d]eference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges.” But nationwide injunctions threaten this public confidence. As we heard from the Deputy Attorney General, nearly one-third of the nationwide injunctions issued against this Administration have come from district courts in California. This forum-shopping could lead the public to conclude that these decisions are more political than legal. That should not be the case. As Alexander Hamilton wrote in Federalist No. 78, the “complete independence of the courts of justice is particularly essential in a limited Constitution.” Put another way, judges must be independent arbiters of the law, not political actors. But the prevalence of such extraordinary remedies issued after flagrant forum-shopping makes it difficult to sustain the public confidence on which the judicial power depends.

Second, nationwide injunctions are a check with little “balance.” Consider that the Constitution established only one court — the Supreme Court — and it does not require that we have lower federal courts at all. It took legislation to establish them. To quote Hamilton again, he asserted “that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two [branches].” Certainly the Framers of the Constitution, the 1789 Judiciary Act, and other court-structuring legislation never envisioned a system of over 1,000 district judges each wielding a Supreme-Court-like, nationwide, unilateral power to displace their colleagues and cancel federal law and policy. And I put the question to you: is it an appropriate or constitutional “balance” of the branches to have each of over 1,000 district judges be a complete check on the President of the United States and the U.S. Congress, or is that instead the proper constitutional role of the Supreme Court?

Third, nationwide injunctions spark a frenzied litigation process that deprives courts of a full opportunity to explain their rulings. In our tradition, judicial orders are generally written so they may persuasively articulate the court’s reasons for its ruling. This statement of reasons engenders respect for the courts and their decisions, and it is part of what makes them such an effective check on the elected branches. But nationwide injunctions spark a rush to and through the courthouse, and to and through the appellate process. Often this occurs on a deficient or non-existent record, with expedited briefing and expedited decision-making. If the nation’s most pressing legal questions are now to be decided on a rushed or emergency basis, a predictable consequence will be a watering down of the courts’ ability to carefully deliberate and to persuasively articulate the reasons for their decisions. This threatens one of the core reasons that courts are an effective check in the first place.

Finally, appropriately tailored injunctions can already be an effective check on the elected branches. For one thing, targeted injunctions often adequately redress the plaintiff’s alleged injury—all that’s needed to resolve the case or controversy before the court. For another, they do not preclude uniformity of federal law. Nationwide or class-wide answers can arise through many different means: Supreme Court review, agreement among the lower courts, class certification, or even the government’s voluntary cessation where it considers uniform enforcement important—or piecemeal enforcement impracticable. Proponents of nationwide injunctions have been too concerned about immediacy and too quick to dismiss the effective, lawful remedies that are already available.

In sum, I hope that our discussion today can wrestle with these fundamental issues. Thank you again for having me.

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