Nationwide injunctions by federal judges have skyrocketed against the Trump administration, which has seen twice as many blocks on its policies in two months than the Biden administration saw in its first three years.
Legal experts and court watchers who have noted the increased use of injunctions are suggesting reining in district court judges by setting up a three-judge panel with wider regional authority to rule on federal matters. A three-judge system could help curtail forum shopping, in which legal advocates seek a favorable judge or friendly court to bring their legal challenges.
“Assuming that both parties believe there should be some circumstances where nationwide injunctions are appropriate, one possible remedy … is for Congress to pass a law that takes those choices away from plaintiffs,” said Trey Mayfield, an attorney with Chalmers, Adams, Backer & Kaufman LLC.
Supreme Court scholar Adam Feldman, creator of the Empirical SCOTUS blog, said the three-judge panel scenario could provide a “valuable check” in judicial proceedings, but shifting from a “historically accepted practice is generally easier said than done in the federal court system.
“From an oversight perspective, there is a lot of value in a three-judge panel,” Mr. Feldman said in an email to The Washington Times. “This would also help provide more of a check from a policy perspective to ensure that the scope of these injunctions is not overly broad. With a unified government and a conservative Supreme Court, this could be the optimal time for this kind of shift.”
District court judges have long issued nationwide injunctions, essentially applying their rulings far beyond the boundaries of their jurisdiction. The first is believed to have been issued more than century ago, but trial courts have increasingly used them since the 1960s.
In President Trump’s first two months in office, about 30 nationwide injunctions were issued against his policies, compared to 14 injunctions during former President Joseph R. Biden’s first three years in office, according to the Harvard Law Review.
Lower courts have blocked Mr. Trump’s immigration policies, his ban on transgender people in the military and his initiatives to end diversity, equity and inclusion practices, among other orders.
“Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country!” he posted on Truth Social in March. “These Judges want to assume the Powers of the Presidency, without having to attain 80 Million Votes.”
“If [Chief] Justice [John G.] Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!” the president added.
But nationwide injunctions, also known as universal injunctions, have stymied Democratic administrations, as well. Lower courts issued nationwide injunctions against President Barack Obama’s policy to give millions of illegal immigrants legal protection from deportation and work authorization. And President Joseph R. Biden saw a universal injunction handed down on his student loan forgiveness initiatives and COVID-19 vaccine mandate.
Even Justice Elena Kagan, an Obama appointee, pushed back on the power of a single judge blocking a national plan.
“It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process,” Justice Kagan said in a 2022 speech.
Legal experts say a three-judge panel, which is used for Voting Rights Act challenges, could help bridge the divide between Republicans and Democrats.
The move could avoid activists going to a favorable court in hopes to get a judge they know will rule in their favor, blocking the president’s action from taking effect nationwide.
For example, it’s well known in the legal industry for conservative advocates to flock to the 5th U.S. Circuit Court of Appeals looking for favorable rulings, while liberal advocates rush to the 9th U.S. Circuit Court of Appeals.
Mr. Mayfield said Congress could authorize a panel that is composed of three judges randomly chosen nationwide.
“All cases seeking that relief under the same cause of action would be submitted to the same panel, and the panel’s decision on temporary injunctive relief would be controlling until a final decision on the merits was issued on the merits by the trial judge, subject to the normal appeals process,” Mr. Mayfield said.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said a three-judge panel would help ease some of the tension over nationwide injunctions, but it is not the only answer.
“It would help, but it still doesn’t resolve such issues as the government having to win everywhere injunctions are sought, while challengers only have to win once. Ultimately, there has to be a process that consolidates such challenges then expedites appeals from the court of first instance, however many judges are on it,” Mr. Shapiro said.
The increasing issuance of national injunctions has prompted Republicans on Capitol Hill to propose solutions. Some have introduced legislation that would block lower court judges from issuing nationwide relief, making it so any injunction would pertain only to the parties named in the case.
However, any Senate legislation would require 60 votes to be approved — meaning at least seven Democrats would have to join the Senate’s 53 Republicans, an unlikely scenario.
In the past, Democratic lawmakers have backed legislation that would create the three-judge panel scenario. One proposal, known as the Fair Courts Act of 2023, would have provided a three-judge panel to issue any relief that would have nationwide effect.
Currently, the Voting Rights Act requires a three-judge panel to weigh the constitutionality of congressional maps. A circuit court appellate judge is usually assigned to a panel with two other district court judges to consider voting rights concerns. Their ruling is then appealed directly to the Supreme Court.
A similar scenario could be used for matters involving requests for nationwide injunctions against the federal government.
Josh Blackman, a professor at South Texas College of Law, supports the idea of a three-judge panel and said that the panel’s rulings would require mandatory Supreme Court review.
He said it would force the high court to take up important national issues.
“The court should decide sooner rather than later,” Mr. Blackman said.
According to a Congressional Research Service report in 2024, Congress authorized three-judge panels as far back as 1910. In 1937, Congress required any constitutional challenge to be considered by a three-judge panel. That lasted for just a few years.
The problem, critics found, was that it was difficult for administrative resources with having to have three judges weigh so many cases — and then all of them getting Supreme Court review places a burden on the high court as well.
Any move, though, to create such a procedure for universal injunctions would have to be created by Congress, not the Supreme Court.
Meanwhile, the Supreme Court on Thursday is expected to hear arguments on nationwide injunctions in a case dealing with a universal blockade against Mr. Trump’s move to end birthright citizenship.
It’s possible the high court will address the use of the nationwide injunctions by lower district court judges in their ruling, which is expected to come by the end of June.
