October 14, 2022
The classic educational video, “I’m Just a Bill,” tells the story of an idea – requiring buses to stop before crossing railroad tracks – that is proposed as federal legislation and (spoiler alert) approved by Congress, signed by the president, and becomes a law.
Unfortunately for Bill, a presidential signature is often not enough. If a sequel were made, it would likely feature a lawsuit being filed immediately after passage before the newly minted law could go into effect. Then, a judge would file an injunction preventing the law from going into effect until the lawsuit plays out months, or perhaps years, later.
There is some controversy over this practice, which is very common when new federal regulations are enacted as well. The common scenario is that a law or regulation is enacted and an advocacy organization sues in a district court in one of the states (presumably one where they think they will get a sympathetic hearing). The group not only challenges the constitutionality or legality of the policy, but also asks the judge to issue an injunction, or an order that the policy cannot be enforced.
What is somewhat unique recently is that the injunction is typically nationwide. So, a single judge with a narrow geographic jurisdiction is able to preclude a legislative or administrative policy across the country. Criticism of this practice is common on both sides of the partisan divide because judges can block any president’s action, or any law, if they can convince a federal judge that doing so is necessary to prevent harm while the legal challenge goes forward.
As summarized in a recent review of the practice, there is an important principled critique of it:
Skeptics, such as U.S. Supreme Court Justice Neil Gorsuch, caution that “the routine issuance of universal injunctions is patently unworkable” for two reasons. First, courts place federal policies on hold through “rushed, high-stakes, low-information decisions” rather than “careful deliberation.” Second, the process might favor parties challenging federal actions, as these plaintiffs can sue in any district court and can present the case multiple times across the country. Conversely, once the federal government suffers “a single loss,” often at the hands of a single judge, the challenged policy stalls.
If the judge’s decision is not well-grounded in the facts and existing legal principles, the government is forced to seek review of the injunction in higher courts if a statute or regulation is even to be operative. That aside from the fact that the government also has to defend the legality of the statute or regulation as well.
That scenario is currently playing out in real life in Utah. In 2020, the Utah Legislature enacted a law regulating abortion in the state. That law went into effect when the U.S. Supreme Court ruled earlier this year that the U.S. Constitution reserved to the states the ability to regulate abortion.
As in the federal system, state courts may also issue injunctions as they consider the constitutionality of a law enacted by the legislature. So, in Utah, Planned Parenthood filed a lawsuit and asked for an injunction so they could continue to perform abortions while their lawsuit was pending. A district court judge in Salt Lake issued that injunction so, currently, the law is not being enforced.
Utah’s law is different from federal law in that an injunction can be issued simply if the case raises serious issues. Federal law requires that the judge determine that the party seeking the injunction is likely to win the case before they issue an injunction. The state requirement is clearly a lower hurdle. There is another unique state feature, though, that allows a case like this one to be expedited.
After the injunction was issued in the Planned Parenthood case, the Utah Attorney General’s office asked the Utah Supreme Court to directly take the case which it agreed to do. In other words, rather than the case being fully heard at the district level, and then again on appeal before it would have the chance to be appealed to the Utah Supreme Court, the state’s highest court expedited the process by allowing the case to come immediately before them without further consideration at the district or appeals court levels.
As a matter of policy, it is clearly appropriate to have access to injunctive power. A person affected by an unconstitutional or illegal policy should not have to suffer irreversible effects while they wait for the legal process to weigh their challenge to the policy. On the other hand, when an injunction can be issued affecting all people in every state based on incomplete or rushed reasoning, this could create an unnecessary hurdle to representative lawmaking.
When the standard for granting an injunction is too lax, as it may be in Utah, a potential response could be to tighten the standard so that injunctions can be issued only when there is a clear indication that the underlying lawsuit is likely to be successful.
The possibility of direct appeal to the Supreme Court as in Utah’s case might be viable at the state level, but logistically difficult in federal courts. This is an issue that could use some attention (and perhaps reform) that ensures that lawmaking is still done by the representative branches. The goals of that reform should be to ensure that enacting policies does not become so encumbered with judicial obstacles that the judiciary becomes a de facto part of lawmaking, while also allowing the courts to redress real constitutional or legal abuses.
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