//  10/31/18  //  Uncategorized

That’s the headline to an article of mine, co-authored with Sam Bray of Notre Dame Law School and published today in The Atlantic. We highlight the disquieting possibility that a single district court in Texas might soon enter an injunction prohibiting the enforcement of all or part of the Affordable Care Act across the entire country.

Something is very wrong with this picture. Under the Constitution, the federal courts are vested with the “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 non-parties or referee abstract political fights.

In a quiet shift over the last 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 last 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, it 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.

Here’s the whole thing. If you want to learn more, I’d encourage you to read Sam’s excellent Harvard Law Review article on national injunctions.

@nicholas_bagley


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