Attorney General Jeff Sessions has slammed what he called the “activist” practice of judges issuing nationwide injunctions purporting to bind federal officials across the country and sometimes around the globe. Full appeals court to hear case on injunction against Trump sanctuary policies

The full bench of the federal appeals court based in Chicago has agreed to consider whether a District Court judge went too far in imposing a nationwide ban against enforcement of Trump administration policies seeking to block so-called sanctuary cities from receiving Justice Department grants.

In April, a three-judge panel of the 7th U.S. Circuit Court of Appeals upheld the nationwide injunction that the city of Chicago obtained against the policy. However, one judge, Daniel Manion, said he would have narrowed the injunction to protect only Chicago.


Attorney General Jeff Sessions, who has railed against nationwide injunctions as a power grab by the judiciary, asked the entire bench of the 7th Circuit to rein in the injunction. On Monday, the court said in an order that a majority of its active judges had voted to consider doing just that.

The en banc court could consist of as many as 13 judges: the court’s 11 active judges plus the two senior judges on the original ruling. The overall set of judges leans heavily in the Republican direction, with 11 GOP appointees and two Democratic appointees.

There is no reason to expect the judges will vote along party lines, however. All three judges who voted earlier this year to uphold the ruling in Chicago’s favor, including the one who said he would narrow it, are Republican appointees.

The April ruling rejected efforts by the Justice Department to impose new grant conditions requiring that cities, counties and states cooperate with immigration enforcement efforts in order to get so-called Byrne Justice Assistance Grants.

In a strongly worded opinion, Judge Ilana Rovner said that allowing federal agencies to add conditions to grant funds without explicit congressional authority could lead toward “tyranny.”

“The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement,” Rovner wrote, in an opinion joined by Judge William Bauer. “But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power.”

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The narrower dispute going before the full bench of the 7th Circuit will solely involve whether U.S. District Court Judge Harry Leinenweber, based in Chicago, was right to apply his ruling nationwide, even though the city was the only plaintiff in the suit before him.

In a speech last year, Sessions slammed what he called the “activist” practice of judges issuing nationwide injunctions purporting to bind federal officials across the country and sometimes around the globe.

“Forgive me for feeling strongly about this,” the attorney general said at the time. “Today, more and more judges are issuing nationwide injunctions and in effect single judges … are making themselves superlegislators for the entire United States. … A single judge’s decision can enjoin the entire federal government from acting. It’s an extreme step. Too often, district court judges are doing it without following the law.”

Sessions has repeatedly complained that the Trump administration has been swamped with such injunctions, but he has acknowledged that they began to pick up under President Barack Obama. At least one such order, a Texas federal judge’s 2015 injunction blocking Obama’s expansion of protection for certain illegal immigrants, won praise from Sessions while he was a senator. However, it’s unclear whether he ever explicitly endorsed the nationwide element of the ruling.

Judges and activists on the right and left have defended the nationwide injunction practice as appropriate in at least some cases, in order to prevent disparate treatment in different parts of the country, particularly in immigration-related cases.

The Supreme Court has never issued a detailed opinion on the validity of nationwide injunctions, but one expert said there was some chance the grant-related dispute could wind up getting the justices to square up to the issue.

“If the Supreme Court does not reach the scope of the injunction in the travel ban case, this is the most likely vehicle for the question to reach the Court,” UCLA law professor Sam Bray said in an email, referring to the president’s disputed executive order banning entry into the United States by nationals of several countries, most of them majority-Muslim. “The Seventh Circuit’s decision to rehear en banc suggests growing judicial concern about national injunctions.”

Even if the 7th Circuit lifts the nationwide injunction in the case about grants to cities with sanctuary policies, the Trump administration policies may still not take effect. That’s because another federal judge, based in San Francisco, also blocked the policies nationwide. His order is on appeal to the 9th Circuit.