This article is the second in a two-part series examining the judicial branch and the problem of nationwide injunctions. You can read part one, here.
What remedies are available when federal judges effectively subsume powers constitutionally delegated to the executive branch?
Supreme Court
First, the Supreme Court could step in and limit district courts’ authority to issue nationwide injunctions. This seems to be what the Trump administration is hoping for.
At least four Supreme Court justices – Thomas, Gorsuch, Alito and Kavanaugh – have already expressed misgivings about nationwide injunctions.
In an emergency appeal to the U.S. Supreme Court on March 13, 2025 over President Trump’s executive order ending “birthright citizenship” for illegal aliens, acting Solicitor General Sarah M. Harris asked the court to limit lower courts’ authority to issue such injunctions.
“[This Court should] declare that enough is enough before district courts’ burgeoning reliance on universal injunctions become further entrenched,” she wrote. “Only this Court’s intervention can prevent universal injunctions from becoming universally acceptable.”
Harris added,
For what it’s worth, the Biden administration also argued that universal injunctions imposed by federal district courts were “inconsistent with longstanding limits on equitable relief and the power of Article III courts.”
Impeachment
Second, Congress has the power to impeach federal judges. Article I of the Constitution says that the House of Representatives “shall have the sole Power of Impeachment” with the Senate granted “the sole Power to try all Impeachments.”
Article III of the Constitution stipulates that federal judges shall “hold their Offices during good Behaviour.” But what exactly does “good behavior” entail? That’s up for Congress to deliberate.
Members of Congress have already introduced articles of impeachment against federal judges who have ruled against the Trump administration’s policies in recent weeks.
Jurisdiction Stripping
Third, the Constitution expressly delegates judicial power to the U.S. Supreme Court, but every federal district and appellate court is created by an act of Congress. Under the Constitution, the judicial power is granted to “such inferior Courts as the Congress may from time to time ordain and establish.”
Therefore, Congress has ultimate authority over our nation’s federal district and appellate courts, and could “strip jurisdiction” from these courts, rendering them unable to hear controversies over certain classes of cases – like those relating to abortion, immigration, or “transgender” procedures, for example.
Additionally, Congress could restrict the ability of federal courts to issue nationwide injunctions. A bill to do so, the No Rogue Rulings Act, has already passed the House Judiciary Committee.
The Executive Option
Finally, as a last resort, the Trump administration could ignore orders from a federal court in defense of its own constitutional power.
This has occurred twice in American history. In 1832, the Supreme Court overturned the conviction of a missionary living among the Cherokee Nation. After Georgia’s governor refused to release the missionary, President Andrew Jackson refused to intervene, supposedly remarking, “[Chief Justice] John Marshall has made his decision, now let him enforce it.”
In 1861, President Abraham Lincoln suspended the writ of habeas corpus. Chief Justice Roger Taney, however, issued a writ of habeas corpus and commanded General George Cadwalader to produce John Merryman, a Maryland farmer, in court. General Cadwalader and President Lincoln ignored Taney’s order, with President Lincoln maintaining that he could suspend habeas corpus despite the court’s order.
As Alexander Hamilton wrote in Federalist No. 78, federal judges have “neither FORCE nor WILL, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.”
While presidents are hesitant to ever defy a federal court order, every federal judge who issues a nationwide injunction blocking the president from exercising his constitutionally provided powers makes this option more likely.
Since January 20, the American people have wrestled with an important question: Are we governed by a duly elected president of the United States who earned 78 million votes, a large majority in the Electoral College and all the swing states, and therefore has the prerogative to issue executive orders and set policies; or are we governed by unelected, essentially unaccountable federal judges from courtrooms across the nation?
We may soon find out an answer to that question.
Related articles and resources:
Biden-Appointed Judge Blocks Trump Ban on ‘Transgender’ Service Members
Trump Victory Likely Cements Conservative Supreme Court for Decades to Come
‘Supreme Court Reform’ is Code for Putting More Liberals on the Bench
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