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Ba-Bam!... If you've wondered where federal district judges get their authority to issue universal injunctions. Hint: there is no such authority. They just do it. Witness: A universal injunction is what we call an order from a court enjoining the government in a way that goes beyond the parties to the case but applies nationwide or, in some cases, universally to enjoin the government. Senator: Is it sometimes referred to as a nationwide injunction? Witness: Yes, it is. Senator: What’s the statutory basis for a federal judge issuing an order that affects people other than the parties before the court? Witness: I’m not aware of a statutory basis, Senator. Senator: There is no statutory basis, is there? Witness: No, Senator. Senator: What’s the United States Supreme Court opinion that interprets the Constitution in a way that allows a federal district court judge to do this? Can you name that case? Witness: I’m not aware of one, Senator. Senator: There isn’t one, is there? Witness: I’m not aware of one, Senator. Senator: Explain to me how this works. How can a federal judge issue an order that affects everybody else other than those in front of him or her? How is that possible? Witness: It shouldn’t be possible, Senator, but district courts do it all the time, I think on the theory that courts need to enjoin a federal policy from going into effect, and they often will enjoin it nationwide so all non-parties are protected by that injunction. Senator: I thought that if you wanted to affect parties who aren’t in court, you had to file a class action. Witness: That’s correct, Senator. Senator: So why don’t federal judges, instead of issuing a universal injunction with no legal basis, tell the plaintiff, "Look, you gotta go file a class action if you want to impact parties who aren’t subject to my court?" Witness: Senator, the Department of Justice makes that argument all the time in our briefs. I think in many cases class actions would be inappropriate; the plaintiffs couldn’t satisfy Rule 23 to establish a class. Senator: So they couldn’t? Witness: Correct. Senator: So they prefer to ask for a universal injunction? Witness: Yes. Senator: Does this encourage forum shopping? Witness: Yes, Senator. Not only does it encourage forum shopping but also district shopping and filing multiple strategic lawsuits to find one judge that will enjoin a single policy nationwide. If you have five lawsuits, only one of those five cases needs to be successful. Senator: Okay, we’ve established that there’s no basis in statute and no basis in Supreme Court precedent for universal injunction. How about common law? This universal injunction is basically an equitable remedy. Did this exist in common law courts in England, on which our law is based? Witness: I don’t believe so, Senator. The government has cited cases from the Supreme Court saying courts are bound by the scope of relief that a court in equity would have granted back in England before the founding, and courts at that time would grant relief only to the parties in the case, not beyond that. Senator: A universal injunction as a remedy is unknown in English common law, is it not? Witness: I haven’t done the research that far back, but I’m not aware of it. Senator: I have. It’s unknown. It wasn’t part of equity. Only about 27 universal injunctions were issued in the 20th century. Does that sound about right? Witness: That sounds about right, Senator. Senator: But 86 of them were issued against President Trump in his first term, is that correct? Witness: I don’t know the specific number, but there was a high number. Senator: And so far in President Trump’s second term, 30 universal injunctions have been issued against him, have they not? Witness: Senator, I don’t have the specific number, but that sounds about right. Senator: The universal injunction has become a weapon against the Trump administration, has it not? Witness: Yes. Senator: Tell me again in my last ten seconds: What’s the basis for universal injunction in Article III? I read Article III, which defines judicial power. Where does it mention universal injunction? Witness: It does not, Senator. It says courts are to decide the case or controversy before them, which is based on the parties to the case. Senator: So Congress could act and say, "Look, federal judges, you can render a decision to a plaintiff or a defendant, but you can’t impact people outside of your courtroom other than through a class action." That’s why God created class actions, isn’t it? Witness: Yes, Senator. ~Donald Trump For President