This week, Attorney General William Barr joined Vice President Mike Pence in condemning the harrowing recent rise of “nationwide injunctions” as anti-constitutional judicial power grabs that disturb the carefully calibrated separation of powers system that the Constitution’s Framers so sagaciously devised.
In a Tuesday speech to the American Law Institute, Barr went after “improper use of nationwide injunctions against policies of all stripes” and said that the use of the injunctions to block policy gives district courts “unprecedented power.”
“One judge can, in effect, cancel the policy with the stroke of the pen,” he said. “No official in the United States government can exercise that kind of nationwide power, with the sole exception of the President. And the Constitution subjects him to nationwide election, among other constitutional checks, as a prerequisite to wielding that power.” …
He went on to emphasize the magnitude and increase of the injunctions, pointing out that the use of the rulings has increased dramatically since President Trump was inaugurated and contrasted the prevalence of the orders with those under Trump’s Democratic predecessor.
As a factual and historical matter, Barr is completely correct about the anti-constitutional remedy having only recently increased so dramatically in its judicial deployment. A much-discussed 2017 Harvard Law Review article by law professor Samuel Bray surveyed the entire history of the “nationwide injunction” and concluded the following:
Power in the American political system is pervasively divided — through federalism, through the separation of powers, and through the sprawling system of federal courts. A legal question is resolved through patience and the consideration of many minds. Which system is better, if starting from scratch, is a difficult question. The question of which system obtains in the United States is easy to answer: a fragmented, many-minds system. In a system like ours, there is no room for the national injunction.
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