SCOTT DETROW, HOST:
During the U.S. Supreme Court's arguments this week on birthright citizenship, one legal concept took center stage - nationwide injunctions. This is when a single federal judge blocks the president from implementing a certain policy, and they have been front and center in the news this year as various groups have sued to block orders and other actions by the Trump administration.
Long before this week's arguments, though, one law professor had argued that these injunctions are a serious problem. Nicholas Bagley is a law professor at the University of Michigan and a former chief legal counsel to Michigan Governor Gretchen Whitmer. He's made this case in articles in The Atlantic and elsewher, and joins me now. Welcome to ALL THINGS CONSIDERED.
NICHOLAS BAGLEY: I'm very happy to be here.
DETROW: Nationwide injunctions - what is the general purpose of them from a court's perspective? What do they do?
BAGLEY: Yeah, from a court's perspective, when they encounter a law or a policy that they think is unconstitutional or illegal and they think that the president has exceeded his authority or an agency has overstepped - in those cases, a nationwide injunction is a way to put that policy or that law on ice as to the entire country. And what that does is it prevents the policy from taking effect and hurting anybody who might be subject to the policy in the meantime.
DETROW: You're a Democrat. You're a progressive, right?
BAGLEY: Yep.
DETROW: Many progressives around the country have been grateful to these injunctions for stopping what they see as illegal and dangerous actions taken by the Trump administration. And yet you are continuing to make the case that, actually, this is a flawed system. Walk me through your thinking.
BAGLEY: Well, so nationwide injunctions are useful if you are an opponent to the person who sits in the White House - there's no doubt about that - and especially if you're concerned about the kind of brazen unconstitutionality that characterizes a lot of President Trump's actions. Then, you know, it's pretty hard to make the argument you should drop this weapon.
But the thing about nationwide injunctions is they're equal-opportunity offenders. When Biden was president, Democrats were deploring all of the nationwide injunctions that would issue from single-judge courthouses in Texas - really out of Amarillo, Texas, in many cases. And so if they were a problem during the Biden administration, you want to pause and think before defending them just because they're opportunistically useful against Donald Trump.
DETROW: You know, I've done a lot of legal coverage of stuff related to President Trump when he was running for office again, when he was back in office. And I feel like I would often come across this situation where people are making these legal arguments that kind of assume that everything is being done within the usual guardrails. And yet, in the specific instance we're talking about, it's President Trump operating way outside those guardrails. Your argument takes that into consideration. You're saying even if somebody is doing something that many experts say is wildly unconstitutional, you're still sticking in this lane that this is not the way to deal with that.
BAGLEY: If somebody is behaving wildly unconstitutional, should we then encourage the courts to behave in a way we think is long-term counterproductive and, in fact, exceeds the court's authority? You know, one way to think about it is that right now, I think there's a good case that our democracy has misfired and that the traditional checks on executive branch action have weakened. Nationwide injunctions aren't a terribly good response to that. They don't, you know, encourage you to vote for better presidents. They actually don't do as much to restrain out-of-line presidential action as the traditional course of judicial lawmaking.
And in the meantime, you know, if you endorse them, they're going to come back to bite you the next time you take office and, in perfectly good faith, seek to exercise your powers to protect the American public. So, you know, look, it's an awkward time to defend nationwide injunctions if you're a Democrat. But Trump really is temporary, and when he's gone, we want to make sure that we're thinking hard about the kinds of structures that best enable us to govern effectively.
DETROW: I'd love to get your response to something that Justice Ketanji Brown Jackson asked the government during arguments about this.
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KETANJI BROWN JACKSON: It seems to me that your argument says, we get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, et cetera. And I don't understand how that is remotely consistent with the rule of law.
DETROW: What did you make of that point?
BAGLEY: I think it's a bit overstated, to be honest. I mean, it is true that not getting a nationwide injunction means that during the time that a particular issue is getting litigated, there will be people who could be harmed by an unconstitutional or unlawful policy, so that trade-off is real. But at the same time, lots of people are going to be protected not because of an injunction that a judge enters, but because the courts themselves will develop precedent that binds - in the circuits in which the Courts of Appeals sit and finally at the U.S. Supreme Court when they issue a decision that will apply nationwide. And as to those court decisions, the Trump administration will abide by them.
What that means is that, you know, as these cases progress, there will be people who aren't able to take advantage of the very first judgment that's entered. But as precedent accrues and accumulates, as we get more decisions from Courts of Appeals and the U.S. Supreme Court, people really will be able to take advantage of those precedents, and eventually, the question will be resolved for everyone. Most of them will never have to file a lawsuit, and that's true even if universal injunctions are taken off the table.
DETROW: And you think, when it comes to the steadiness of the law, that's a trade-off that's worth it than a more thorough airing?
BAGLEY: It's a trade-off that's worth it. You know, we have a system that allows the hard legal questions to percolate in a bunch of different circuits before we get a conclusive resolution of the question. Nationwide injunctions short circuit that regular process. What they do is they say, the first judge to enter a nationwide injunction - that's the only decision that matters. And immediately, the federal government then has to take an appeal up to the Court of Appeals and, if it loses there, immediately up to the Supreme Court. So really important questions - questions that are hard, questions that divide legal scholars, that divide judges - those questions can be rocketed up to the Supreme Court on really thin briefing very quickly.
It also gives a huge incentive to partisan actors to file these lawsuits because all they have to do is win once. You file in a hospitable courthouse where you think you might draw a judge that's ideologically aligned, and boom, you win. And all of a sudden, every single major policy that any president of either political party makes is subject to a judicial referendum by the most ideologically motivated judges on the bench, and that seems like a really bad way to run a judicial system.
DETROW: That is law professor Nicholas Bagley. Thank you so much.
BAGLEY: Happy to do it.
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