Conservative states are succeeding in getting friendly federal judges to issue broad—often nationwide—injunctions reining in federal government actions, thwarting key parts of President Barack Obama’s agenda and imperiling some aspects of Hillary Clinton's platform.

The tactic—amplified by the 4-4 deadlock in the Supreme Court—has already frozen Obama’s immigration policy, is limiting his efforts to protect transgender rights and could hamstring Clinton’s planned executive actions on immigration, labor and environmental issues if she wins the White House.


The shorthanded Supreme Court is expected to start adding new cases to its docket as soon as Thursday, with the new term set to open Monday. But many legal experts say that if the high court remains split down the middle on key issues, the more important action will be in the lower courts, where the red-state-led onslaught is playing out..

In its waning days, the Obama administration is continuing to push back against the conservative legal assault, with the Justice Department repeatedly opposing nationwide injunctions and pressing judges to rein in their rulings.

"With so many conservative judges being called on to rule against second-term Obama administration actions, it has become white hot, this issue of judges' discretion to issue nationwide relief," said Jamison Colburn, a Penn State law professor and former Environmental Protection Agency lawyer. "It has become a complete slugfest."

Nonetheless, some liberal legal activists seem reluctant to deplore the conservative states' tactics. The reason: civil rights and immigrants' advocates have long visited the courtrooms of federal judges to seek sweeping rulings looking to alter federal policy across the country.

"A single case involving a single judge can issue an injunction against nationwide laws or policies and they have always done that. That's the way our legal system works," said Nina Perales of the Mexican American Legal Defense and Education Fund. "It's almost as if conservatives figured this out after progressives did....It's really not new."

Many liberal activists grumbled after lawyers for the state of Texas maneuvered to get their 26-state challenge to Obama's immigration policy in front of staunchly conservative U.S. District Court Judge Andrew Hanen in Brownsville. Those activists and the Justice Department have also complained about the sweeping way in which his injunction blocked Obama’s 2014 immigration changes in 16 other states that support the president’s actions.

Perales said she strongly disagrees with the substance of Hanen's ruling, but not his power to issue it. Nor does she begrudge the conservative states for their choice of where to bring the case. "We're in the business, our civil rights organization, of putting together law reform litigation, finding an appropriate place to file and, hopefully, working that issue up to the Supreme Court," she said.

But the Senate’s refusal to confirm a replacement for the late Justice Antonin Scalia has altered the legal landscape. Normally, an injunction issued by a single judge and backed by a single appeals court can be quickly blunted by the Supreme Court. A majority of the court might agree or disagree, with either result providing at least a tentative resolution until the issue can be heard by the justices. But the current 4-4 ideological divide on the Supreme Court makes it harder to win a stay, particularly in polarizing cases.

"Our current deadlock ups the ante a lot," said Will Baude, a law professor at the University of Chicago. "If the Supreme Court remains deadlocked for a while, there's every reason to expect to see more of these injunctions and the lower courts are going to have to sort out a little the law of these injunctions and how they work.”

One prominent attorney who worked in both Republican and Democratic administrations warns that the conservative states' campaign threatens to cause havoc in federal government policymaking.

"You take more lawsuits based on policy differences and combine that with nationwide injunctions and you have a real, additional basis for paralysis of government action," said Andrew Pincus, a lawyer at the Justice Department during the Reagan administration and general counsel at the Commerce Department during the Clinton administration. "You'd hope this would make people realize that we need a fully-functioning Supreme Court in order to resolve these issues, but some people may see a short-term benefit here, which would be a shame."

Indeed, the successes conservative states are having through the court system could even affect Republican senators' strategy on filling the Supreme Court vacancy. If conservatives see themselves with an upper hand over the legal system as a result of the Supreme Court's ideological deadlock, they could be less inclined to approve a new high-court nominee.

"In the short run, it means more incentive to hold out and keep the seat open because Republicans might look at how they're doing in the lower courts and think, 'We're doing pretty well here,' " said Baude.

So far, the immigration suit has been the biggest victory for conservative states. Another win for conservative states came last month when U.S. District Court Judge Reed O'Connor granted 11 states' request for a nationwide injunction against Obama administration guidance on accommodations for transgender students.

The Justice Department has urged O'Connor to "clarify" his order by limiting it in several respects. Obama administration lawyers said a broad reading of the judge's order would "raise separation of powers concerns" by seeming to prohibit the Justice Department from arguing its view of discrimination law in courts around the country.



The Justice Department also asked the judge to limit his injunction to the 11 states pressing the legal challenge. The states are fighting a narrowing of the injunction, with a hearing on the issue set for Friday morning in O'Connor's Wichita Falls, Texas, courtroom.

The Education Department transgender policy, conveyed not through a new regulation but through informal "guidance," was upheld by a federal appeals court in a North Carolina case in April, but O'Connor's order could be seen as in conflict with the 4th Circuit ruling since the law in that circuit backs the administration's stance. (Last month, the Supreme Court voted 5-3 to put relief on hold for the transgender student, with Justice Stephen Breyer joining the conservative justices as a "courtesy.")

"There is no principle of judicial economy that authorizes one district court to impose its view of the law upon another, and justice is not inhibited when district courts disagree," Justice Department lawyers wrote in a filing earlier this month. "Plaintiffs cannot plausibly allege that they suffer any harm when Defendants participate in litigation that does not involve their states."

O'Connor has not yet ruled on the request to refine the scope of his injunction, but has acknowledged he may need to shy away from impacting other cases already in litigation.

Two days after O'Connor issued his injunction in the case over transgender discrimination policy, Texas and four other states filed a new suit before him challenging new Obama administration regulations requiring health providers to offer or refer patients for gender reassignment surgery when needed. That case also seeks a nationwide injunction against the federal government policy.

Texas and 20 other states ripped a page from the same playbook last week when they and private employers filed a pair of suits challenging a new Labor Department rule that could dramatically increase the number of workers entitled to overtime. The state-led case appears to seek an order blocking the new policy nationwide. The suits were filed in Sherman, Texas, where they were nearly certain to be assigned to U.S. District Court Judge Amos Mazzant.

Mazzant, a former federal magistrate, was nominated by Obama in 2014 as part of a deal with Republican Sens. John Cornyn and Ted Cruz. The judge has an unusual resume for an Obama appointee: In 2004, he ran unsuccessfully for the state bench as a Republican then was appointed to a judgeship by Gov. Rick Perry (R-Texas).

Like Clinton, GOP nominee Donald Trump is planning a flurry of executive actions if he becomes president. That creates the possibility liberal states could try to win similar injunctions to blunt his policies. Legal experts say that scenario is less likely because his win would likely coincide with a Republican electoral sweep that could ease Trump-backed legislation and perhaps even confirmation of a new Supreme Court nominee.

However, a Clinton victory — particularly one where Democrats don't take control of the Senate — could lead to more legal conflict. Clinton has already said she plans immigration executive actions more aggressive than the ones Obama took.

A 4-4 Supreme Court could effectively give Texas and other GOP-led states the upper hand if they can persuade judges to block Clinton's plans on immigration or other contentious issues.

Asked if the flurry of suits will continue if Clinton wins, Texas Attorney General Ken Paxton—a Republican—indicated he plans to keep pursuing such actions no matter who becomes president.

"Of course, the unconstitutional overreach of the federal government is bigger than any one President. No matter who is in the White House, I will always do everything in my power to protect the sovereignty of Texas and freedom of Texans," Paxton said.

In recent years, the Supreme Court hasn't issued a clear ruling on the proper scope of an injunction, particularly one against the federal government. However, two decades ago in a case involving Navy petty officer Keith Meinhold's challenge to the Clinton Administration's don't ask, don't tell policy, the justices signaled some discomfort with sweeping judicial orders.

In 1993, U.S. District Court Judge Terry Hatter Jr., issued a nationwide injunction against the military discharging gay service members. The Justice Department took the issue to the Supreme Court, which narrowed the injunction to protect only Meinhold. The justices, as is usual on stay orders, offered no specific rationale for their action.

In a 2008 case over rules for timber sales on federal lands, the Justice Department under President George W. Bush opposed a nationwide injunction. "The Court has thus recognized that, as a general matter, recurring legal issues involving the federal government should be subject to relitigation in different circuits," then-solicitor general Paul Clement wrote. (The high court's ruling never addressed the issue.)

The appeals courts themselves are actually divided on the proper scope of a judge's injunction, according to Michael Morley, a law professor at Barry University in Orlando.

"The D.C. Circuit tends to favor nationwide injunctions, while the New York-based 2nd Circuit and Richmond-based 4th Circuit prefer narrow injunctions blocking a federal law with respect to specific people," Morley said.

Some legal experts already see the potential for similar legal clashes in the environmental area, particularly as litigation plays out over an Obama administration rule known as the Waters of the United States, or WOTUS for short. The Cincinnati-based 6th Circuit is wrestling with the issue right now.

If it the 6th Circuit blesses the administration's rule, opponents of the policy are likely to revive suits in other parts of the country, teeing up questions about whether a single judge in those states could try to block the policy nationwide, notwithstanding the 6th Circuit's ruling.

"Even if you get a Justice Department win in the 6th Circuit, they could wind up going around the country playing whack-a-mole," Colburn said.

In the wake of Scalia's unexpected death in February, White House officials and Obama himself lamented the possibility that deadlocks in the shorthanded court could lead to the administration's policies being enforced in parts of the country and not in others.

"Because we didn't have a ninth justice, right now, in Arkansas the rule is different than it is in Tennessee, and that's not how you want the United States of America to operate," Obama said, referring to a banking and sex discrimination-related case the justices deadlocked on, 4-4, in March.

However, the immigration case demonstrated that the shorthanded court poses an even greater danger to executive branch prerogatives. Instead of federal agencies being able to enforce their policies in only part of the country, they can be ordered by a single judge and appeals court not to carry out those policies anywhere in the nation.

It's the kind of result that might have Obama regretting his 2014 taunt aimed at Republicans planning to challenge him over various executive actions: "So sue me!"