Something is very wrong with this picture. Under the Constitution, the federal courts are vested with “judicial Power,” which has traditionally been understood to limit them to resolving disputes between the parties who appear before them. That makes sense in a democracy: Unelected judges shouldn’t adjudicate the rights of nonparties or referee abstract political fights.
In a quiet shift over the past 60 years, however, the courts have gradually assumed the power to enter national injunctions against federal statutes and regulations, at least under some (not very well-defined) circumstances. The trend has accelerated dramatically in the past three and a half years, as claims of executive overreach have proliferated.
The Supreme Court has not expressly ruled on the legality of these national injunctions, though it has recently shown some interest in the issue. In our judgment, the Court should curtail the practice.
The point is not a partisan one. (One of us is a Republican, the other a Democrat.) Before courts entered national injunctions against the Trump administration, they used them to thwart the Obama administration’s rule for overtime pay and its signature immigration policy, Deferred Action for Childhood Arrivals.
National injunctions are equal-opportunity offenders.
Read: A ruling against the Obama administration on immigration
On a legal level, they’re dubious. Under the Constitution, a plaintiff must have standing in order to sue, which means she has to show that the relief she seeks will remedy an injury that she’s suffered. She doesn’t have standing, however, to seek relief for someone who has not brought a lawsuit. That’s one reason the Supreme Court has insisted that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” And that’s why, in our assessment, a court oversteps its authority when an injunction does more than benefit the plaintiffs who have sued.
There is, in fact, a perfectly constitutional way to bring a large group of plaintiffs before a court. It’s called a class action, and it’s governed by a complex set of legal rules designed to protect plaintiffs who want to opt out. National injunctions sidestep those rules.
The policy worries run deeper. Although federal law is supposed to be the same across the land, the court system in the United States tolerates and even encourages some variation. When a dispute arises before an Oregon district-court judge, for example, she is obliged to follow the decisions of the Supreme Court and the Court of Appeals for the Ninth Circuit. She’s perfectly free, however, to disregard rulings from any other court.
As it turns out, federal judges often disagree with one another. That’s healthy. No single judge will get it right all the time, so it’s better to give many different judges a chance to wrestle with a tough legal question. If conflict persists, the Supreme Court can always intervene. By the time it does, its decision will be informed by the views of dozens of smart judges across the country.