Where you stand depends on where you sit. Given the stark divide between the two largest political parties in America right now, this phrase has possibly never been more apt. As one group takes power and attempts to implement their policies, the opposition does whatever they can to thwart their plans. Over the past decade or so, this has increasingly come through the courts and national injunctions.
S.1099, a bill proposed by Senator Josh Hawley on March 26, 2025, is another in a long line of legislation created to attempt to limit the ability of federal courts to issue injunctions that apply to the entire nation. The details are not yet public, but the goal is clear.
Are national injunctions too overpowered, or do they serve as an effective check on overreaching executive orders? The answer to that will often depend on who gets asked.
Injunction Junction, What's Your Function?
In the simplest of terms, an injunction is a court order that means "don't do that." This can include restraining orders, protection against copyright infringement, and overturning or blocking laws a court considers as potentially unconstitutional.
A national, or universal, injunction applies beyond the parties involved in the lawsuit. There's some variation when determining what meets the criteria to be considered a national injunction, but the Congressional Research Service (CRS) calls national injunctions "injunctions against the government that prevent the government from implementing a challenged law, regulation, or other policy against all relevant persons and entities whether or not such persons or entities are parties participating in the litigation."
While the application of a national injunction can be traced back to 1913, its use became much more prevalent during the Barack Obama presidency. These court orders continued to play a significant role in reining in what some considered presidential overreach in his and subsequent administrations. The first Trump administration saw nearly half of all universal injunctions issued since 1963.
There's speculation that the increase is a reaction to the rise in the number of executive orders issued during these terms and the inability of Congress to pass laws and regulations as intended. President Obama issued 277 executive orders during his two terms. Depending on the source, there were between 12 and 19 national injunctions issued against his orders. Some were targeted at his immigration policies.
President Joseph Biden issued 162 executive orders and faced between 14 to 26 national injunctions.
President Trump made 220 executive orders during his first term and encountered between 55 and 86 universal injunctions. He's leaned heavily on executive orders since the start of his second term, with over 100 signed within the first 100 days. Many of these have pushed the boundaries of executive power. Predictably, these have been met with a wave of injunctions questioning their constitutionality.
In addition to Senator Hawley's bill, Iowa Senator Chuck Grassley, sits on the powerful Senate Judiciary Committee, has also introduced his own bill. He also led a hearing on Wednesday, April 2, regarding limiting national injunctions to the parties involved directly in a lawsuit.
Impeaching Is Hard to Do
As indicated by the past 15 years or so, national injunctions can serve as an effective check on executive orders that may be unconstitutional. Some make the argument that a single person shouldn't be able to thwart the will of the president, but others see it as an integral part of the system of checks and balances the Founding Fathers created to keep America from having an executive act as a king.
Some lawmakers who are fed up with what they consider obstruction through national injunctions have suggested that federal judges who issue them should be impeached. However, impeachment is not meant to be a political tool. Instead, impeachment is only intended for high crimes and misdemeanors, essentially meaning bad behavior.
The process of impeaching and removing a federal judge involves a vote in the House of Representatives and a trial in the Senate, with the Senators acting as jurors. With a requirement of a supermajority for removal (67 votes for the full Senate), this remains improbable.
Limiting the reach of national injunctions, however, is within the purview of Congress, provided the law does not violate the separation of powers or another constitutional provision. It is not something that can be done through executive order.
Related Resources
- What Is the Unitary Executive Theory? (FindLaw's Law and Daily Life)
- Separation of Checks and Balances Under the U.S. Constitution (FindLaw's U.S. Constitution - Article I)
- What Does It Take To Impeach a Federal Judge? (FindLaw's Courtside)
