Analysis-As judges stymie Trump with nationwide orders, pressure builds on US Supreme Court

By Andrew Chung

WASHINGTON (Reuters) -Republican President Donald Trump and his Democratic predecessor Joe Biden may not agree on much, but there is one issue on which they have been united: The need to blunt a powerful weapon that federal judges have been deploying at a quickly rising clip. 

Top lawyers for each president separately urged the U.S. Supreme Court to limit the authority of judges to issue nationwide - or "universal" - injunctions that can stop a government policy in its tracks. 

"This court should declare that enough is enough," Sarah Harris, serving at the time as the Trump administration's acting U.S. solicitor general, told the justices in a March 13 filing seeking to unshackle his executive order to restrict automatic U.S. birthright citizenship. 

Elizabeth Prelogar, the solicitor general under Biden, less than three months earlier in a New Year's Eve bid to unblock an anti-money laundering law frozen by a federal judge, told the justices that these orders are causing "substantial disruption."

The power of a single judge to issue a nationwide injunction has become pivotal in the question of whether Trump can quickly implement his aggressive agenda, pushing the limits of presidential power. Several cases either already awaiting action by the Supreme Court or heading toward nine justices involve such a judicial order.

"No president likes them, whether that's a Democratic president or Republican president, because they're really a method of cabining executive power," said University of Virginia law professor Amanda Frost, who has studied these judicial remedies.

The pressure on the Supreme Court or Congress to limit these injunctions is building. Trump on March 20 called the situation "toxic" and urged the Supreme Court to act. 

Trump and fellow Republicans have escalated their attacks on judges who have impeded his executive actions - to purge federal workers, shutter agencies, slash federal funding, bar transgender people from military service, target perceived enemies and broadly roll back workplace diversity programs, among others.

The president's call for Congress to impeach U.S. District Judge James Boasberg, who issued an order to halt the swift deportation of alleged Venezuelan gang members after Trump invoked a little-used 1798 law, drew an extraordinary rebuke from U.S. Chief Justice John Roberts. The stakes are escalating, with Boasberg on Thursday suggesting Trump's administration had violated his order.

The validity and origins of nationwide injunctions are hotly debated by legal experts. 

Instead of granting an injunction that offers relief to a specific plaintiff who sued - the more common scenario - these nationwide orders halt the government from executing a policy against everyone, extending beyond the parties in a specific case. Judges often justify their use to address what they perceive as broader harm and to maintain uniformity of the law nationally.

Republicans and Democrats alike have railed against the ability of a single federal judge to exert such power, claiming it distorts the litigation process and politicizes the judiciary. Yet such injunctions have proven useful to members of the opposition party in curtailing what they see as presidential overreach.

According to a tally by Georgetown University law professor Stephen Vladeck, since Trump returned to office in January federal district courts have issued preliminary orders and injunctions - both universal and more limited - in 69% of cases in which plaintiffs requested such relief. 

'A BIPARTISAN SCOURGE'

Republicans in Congress, controlling both the House of Representatives and Senate, have introduced legislation intended to curtail universal injunctions. 

"They are a bipartisan scourge," University of Notre Dame law professor Samuel Bray told the Senate Judiciary Committee during a hearing on the issue on Wednesday. "In the long term, the real loser from the universal injunction is our democracy."

Frost said in an interview that universal injunctions are not appropriate in every case. And yet Trump is the "poster child" for why they should remain available, Frost added, because he is unilaterally issuing sweeping changes to the law.

Eliminating these injunctions, Frost said, "would allow the president to blatantly violate constitutional rights" for the months or years it takes to get to the Supreme Court.

Three different judges blocked nationwide Trump's executive order that would deny citizenship to babies born on U.S. soil based on the immigration status of their parents, agreeing with the various plaintiffs that Trump's order likely violates the citizenship clause of the Constitution's 14th Amendment that provides that anyone born in the United States is a citizen.

Limiting injunctions to protect only the individuals who sue would force other parents to prove their own lawful status in order for a baby to be deemed a citizen, and some "kids would be born without status" until a Supreme Court decision on the matter comes, Frost said.

Justice Sonia Sotomayor, dissenting in 2018 to the court's endorsement of a travel ban Trump imposed in his first term targeting several Muslim-majority countries, said the nationwide injunction in that matter was necessary to provide complete relief to the plaintiffs. 

In the past, Democrats expressed dismay when judges used these injunctions or similar orders to frustrate Biden's policies, including on a path to citizenship for immigrant spouses of U.S. citizens and on student debt relief. 

A federal judge in Texas also attempted to order the abortion pill mifepristone - approved by federal regulators in 2000 - off the market, a decision Biden's administration successfully appealed at the Supreme Court.

At Wednesday's Senate hearing, Democrats said that any limits on such injunctions imposed by Congress should take effect in four years when the next president takes office, lest the legislation be used simply to insulate Trump's actions. 

'A RELATIVELY NEW PHENOMENON'

The origins of universal injunctions in the U.S. legal system is contentious. 

"As best I can tell, universal injunctions are a relatively new phenomenon," conservative Supreme Court Justice Neil Gorsuch wrote in a 2024 decision that let Republican-governed Idaho enforce a ban on transgender care for minors. 

Some legal scholars contest this conclusion. 

"Justice Gorsuch is viewing the history too narrowly," said Stanford Law School professor Mila Sohoni, who wrote an academic paper on the topic. 

Sohoni cited a handful of cases in the 1920s, 1930s and 1940s in which courts offered universal relief or relief that applied beyond the plaintiffs in a case. 

"In 1913, the Supreme Court itself issued an injunction that protected non-party newspaper publishers nationwide," Sohoni said. 

It is undisputed that nationwide orders have been accelerating in the past two decades. A 2024 Harvard Law Review study found that they were overwhelmingly issued by judges appointed by presidents of the party opposite to the one in power. 

Trump's administration in filings to the Supreme Court has complained that more universal injunctions were imposed against his policies in February alone than against Biden's administration during the first three years of his presidency.

Sohoni said that is "not all that surprising given the breakneck speed and sweeping scope of (Trump's) executive orders and other diktats." Trump has signed more than 100 executive orders in just 10 weeks, compared to 162 during Biden's four-year term.

Monica Haymond, an expert in legal procedure at Northwestern University Pritzker School of Law, said nationwide injunctions can efficiently stop executive actions that are deemed likely unlawful, but they also can be misused and delay rules passed by democratically accountable institutions. 

"Taking that power away from the courts will mean they have fewer ways to prevent harm. But nationwide injunctions can also cause harm," Haymond said. "I think the answer to the question whether courts should have the power to issue nationwide injunctions comes down to whether you trust the judicial process writ large." 

(Reporting by Andrew Chung in Washington; Editing by Will Dunham and Amy Stevens)