A.G. William Barr's defiant address at ALI Annual Meeting

When a trial judge issues a decision it binds the parties alone.  But if an administrative rule or action is enjoined it is often held to be nationwide by District Judges. That forces the government to appeal or acquiesce.  In the 1980's the Reagan administration adopted a policy of non-acquiescence in rulings by federal courts striking aspects of DHHS policies intended to reduce the number of people receiving Social Security disability benefits.  That forced individuals adversely affected by the policy to appeal, or resort to class actions which federally funded Legal Services agencies were barred from undertaking.

Attorney General Barr sees a converse problem: single judges blocking a President's signature policies. - gwc

At American Law Institute Annual Meeting William Barr, A.G. denounces issuance of nationwide injunctions by District Judges
***This saga highlights a number of troubling consequences of the rise of nationwide injunctions:

First, these nationwide injunctions have frustrated presidential policy for most of the President’s term with no clear end in sight.  We are more than halfway through the President’s term, and the Administration has not been able to rescind the signature immigration initiative of the last Administration, even though it rests entirely on executive discretion.  The Justice Department has tried for more than a year to get the Supreme Court to review the lower-court decisions ordering us to keep DACA in place.  But the Court has not granted any of those requests, and they languish on its Conference docket.  Unless the Court acts quickly and decisively, we are unlikely to see a decision before mid-2020 at the earliest­—that is, right before the next presidential election.  It is hard to imagine a clearer example of the stakes of nationwide injunctions. 

Second, these injunctions have injected the courts into the political process.  The first injunction from the Northern District of California came down on January 9, 2018, in the middle of high-profile legislative discussions.  Hours earlier that same day, President Trump allowed cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress over the DREAM Act, border security, and broader immigration reform.  Of course, once a district judge forced the Executive Branch to maintain DACA nationwide for the indefinite future, the President lost much of his leverage in negotiating with congressional leaders who wanted him to maintain DACA nationwide for the indefinite future.  Unsurprisingly, those negotiations did not lead to a deal.

So what have these nationwide injunction wrought?  Dreamers remain in limbo, the political process has been pre-empted, and we have had over a year of bitter political division that included a government shutdown of unprecedented length.  Meanwhile, the humanitarian crisis at our southern border persists, while legislative efforts remain frozen as both sides await the courts’ word on DACA and other immigration issues.

Third and finally, these nationwide injunctions inspire unhealthy litigation tactics.  Last May, Texas and others sued for a nationwide injunction against the DACA policy—in essence, to enjoin the government from complying with the other nationwide injunctions.  These States were fighting fire with fire.  For their Attorneys General as advocates, that is understandable.  But if we consider how things ought to work, it is perverse.  Rather than an orderly pattern of litigation in which the Government loses some cases and wins others, with issues percolating their way through the appellate courts, we have an inter-district battle fought with all-or-nothing injunctions.

Fortunately, Judge Hanen spared us the pain of dueling injunctions.  Unfortunately, however, the new status quo of a DACA policy supported only by injunction has persisted.