Ever since President Obama politicized Washington using his pen rather than doing the heavy lifting to convince Congress to pass his priorities, the presidential Executive Order has become the White House's mainstay of governance.
EOs result from the President's authority under the Constitution, particularly Article II, which outlines the executive branch's powers and powers delegated by Congress through legislation. EOs are typically used to implement policies, direct federal agencies, or clarify how laws should be enforced.
EOs come with restrictions, though. The Supreme Court can strike them down if they overstep constitutional bounds, or Congress can pass laws to counter them, though that's rare given the President’s veto power. They're also limited to the executive branch's scope; for instance, a President cannot rewrite tax law without Congressional approval.
The main bottleneck to presidential executive orders is the vast network of federal district judges, who are, by definition, supposed to be apolitical and neutral. However, organizations that challenge executive orders know how to court-shop and file complaints with their favorite judge.
Even this wouldn't ordinarily be an issue. A judge's ruling against an EO should only impact the district in which the judge presides. The United States federal judiciary has 677 district court judges (across 94 districts, including territorial courts like those in Puerto Rico and Guam). These are lifetime appointments under Article III of the Constitution.
The problem is that many federal judges deem the underlying challenge and their judgments so critical to "ensuring uniform relief" that they enter "nationwide injunctions," expanding the reach of their orders to all 677 district courts. Even the nine Appeals Courts do not have such a reach. Under our Constitution, only the decisions of the Supreme Court are of nationwide importance.
Until now, numerous interests, both liberal and conservative, have frowned on nationwide injunctions. However, since nothing of consequence has occurred, these judges continue to issue them.
A notable example of a nationwide injunction during the Biden administration occurred on December 7, 2021, when U.S. District Judge R. Stan Baker of the Southern District of Georgia issued a nationwide injunction blocking the enforcement of President Biden's COVID-19 vaccine mandate for federal contractors and subcontractors. This mandate, stemming from Executive Order 14042 signed on September 9, 2021, required employees of federal contractors to be fully vaccinated by January 18, 2022.
Seven states—Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia—along with the Associated Builders and Contractors, sued, arguing the mandate exceeded federal authority and violated procurement laws. Judge Baker's ruling halted the mandate nationwide, not just for the plaintiffs, citing the need for uniform relief. The Eleventh Circuit later upheld the injunction in August 2022 but narrowed its scope to the plaintiff states and parties, allowing enforcement elsewhere unless blocked by other courts.
During Donald Trump's first administration, U.S. District Judge James L. Robart of the Western District of Washington issued a nationwide temporary restraining order (TRO) blocking key parts of Executive Order 13769, often called the "travel ban" or "Muslim ban." Signed on January 27, 2017, the order suspended entry for 90 days for nationals from seven predominantly Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—halted the U.S. refugee program for 120 days and indefinitely barred Syrian refugees. The state of Washington, later joined by Minnesota, challenged the order, arguing it harmed residents, businesses, and universities by disrupting travel, family reunification, and economic activity.
Judge Robart's TRO halted enforcement of the order nationwide, not just in Washington or Minnesota, citing the need for uniform immigration policy and the likelihood of irreparable harm to affected individuals. The ruling came after chaos at airports, with detentions and deportations already underway. On February 9, 2017, the Ninth Circuit Court of Appeals unanimously upheld the injunction, keeping it in place while legal challenges continued. The Trump administration eventually replaced the order with revised versions, and the Supreme Court later allowed a modified version of the ban to proceed in June 2018. Still, Robart's action remains a textbook case of a nationwide injunction from that period.
Three conservative Supreme Court justices have criticized this abuse of federal judicial power, citing their scope and impact on the separation of powers. Justice Neil Gorsuch has been particularly vocal. In a 2019 concurrence in Department of Homeland Security v. New York, he called them a "modern invention" that risks turning district courts into "one-judge vetoes" over national policy, arguing they bypass the traditional class-action process and disrupt the executive's ability to govern.
Justice Clarence Thomas has echoed this skepticism. In his 2018 concurrence in Trump v. Hawaii—the travel ban case—he questioned the constitutional and historical basis for nationwide injunctions, suggesting they exceed Article III's "case or controversy" limit and encroach on executive authority. He argued they weren't common until the mid-20th century and warned of "forum shopping," where plaintiffs pick sympathetic judges to derail policies.
Even Justice Brett Kavanaugh, in a 2020 statement respecting the denial of a stay in Barr v. East Bay Sanctuary Covenant, flagged the issue, noting how these injunctions can create chaos by halting policies before higher courts weigh in, as seen with Trump's asylum restrictions. Chief Justice John Roberts has been more reserved but signaled unease in Trump v. Hawaii, emphasizing the Court's role in resolving such disputes over lower courts issuing sweeping relief.
Now, these justices have an opportunity to end nationwide injunctions forever. After a federal judge issued a nationwide injunction against Trump's EO on birthright citizenship, the Trump administration filed an emergency motion with the Supreme Court not only challenging the legalities of the order regarding birthright citizenship (that would come later) but complaining that the nationwide injunction was harmful and too broad.
In a victory for the Trump administration (and future presidents), the Court granted certiorari in Trump v. Washington, one of three related cases (Trump v. CASA Inc. and Trump v. New Jersey being the others), consolidating them to address both the scope of the nationwide injunctions and, potentially, the underlying constitutional question of the executive order's validity.
For the first time in decades, the Roberts Court may eliminate the cancer of nationwide injunctions once and for all. This could be the single most momentous decision this court season.
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