Three-judge panels for nationwide injunctions suggested in legal circles

Federal judges’ nationwide injunctions have blocked twice as many Trump administration policies in two months as in the first three years of the Biden administration.

Legal experts and court watchers who have noted the increase suggest reining in district court judges by setting up a three-judge panel with wider regional authority to rule on federal matters. A three-judge system could help curtail forum shopping, in which legal advocates seek a favorable judge or a friendly court to bring their legal challenges.

“Assuming that both parties believe there should be some circumstances where nationwide injunctions are appropriate, one possible remedy … is for Congress to pass a law that takes those choices away from plaintiffs,” said Trey Mayfield, a lawyer with Chalmers, Adams, Backer & Kaufman LLC.

Supreme Court scholar Adam Feldman, creator of the Empirical SCOTUS blog, said three-judge panels could provide a “valuable check” in judicial proceedings, but shifting from a “historically accepted practice is generally easier said than done in the federal court system.”

“From an oversight perspective, there is a lot of value in a three-judge panel,” Mr. Feldman said in an email to The Washington Times. “This would also help provide more of a check from a policy perspective to ensure that the scope of these injunctions is not overly broad. With a unified government and a conservative Supreme Court, this could be the optimal time for this kind of shift.”

District court judges have long applied their rulings far beyond the boundaries of their jurisdictions. The first is thought to have been issued more than a century ago, but trial courts have increasingly used nationwide injunctions since the 1960s.

In President Trump’s first two months in office, judges issued about 30 nationwide injunctions against his policies, according to the Harvard Law Review. During President Biden’s first three years in office, judges issued 14 nationwide injunctions.

Lower courts have blocked Mr. Trump’s immigration policies, his ban on transgender service members and his initiatives to end diversity, equity and inclusion practices, among others.

“Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country!” Mr. Trump posted on Truth Social in March. “These Judges want to assume the Powers of the Presidency, without having to attain 80 Million Votes.”

“If [Chief] Justice [John G.] Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!” the president added.

Nationwide injunctions, also known as universal injunctions, have also stymied Democratic administrations. Lower courts issued nationwide injunctions against President Obama’s policy of giving millions of illegal immigrants legal protection from deportation and work authorization. A universal injunction was handed down on Mr. Biden’s student loan forgiveness initiatives and COVID-19 vaccine mandate.

Justice Elena Kagan, an Obama appointee, questioned the power of a single judge to block a national plan.

“It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process,” Justice Kagan said in a 2022 speech.

Legal experts say a three-judge panel used for Voting Rights Act challenges could help bridge the divide between Republicans and Democrats.

The move could prevent activists from going to favorable courts before judges likely to rule in their favor, blocking the president’s action nationwide.

The legal industry knows conservative advocates flock to the 5th U.S. Circuit Court of Appeals looking for favorable rulings. Liberal advocates rush to the 9th U.S. Circuit Court of Appeals.

Mr. Mayfield said Congress could authorize a panel comprising three randomly chosen nationwide judges.

“All cases seeking that relief under the same cause of action would be submitted to the same panel, and the panel’s decision on temporary injunctive relief would be controlling until a final decision on the merits was issued on the merits by the trial judge, subject to the normal appeals process,” Mr. Mayfield said.

Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said a three-judge panel would help ease tension over nationwide injunctions but added that it is not the only answer.

“It would help, but it still doesn’t resolve such issues as the government having to win everywhere injunctions are sought, while challengers only have to win once. Ultimately, there has to be a process that consolidates such challenges then expedites appeals from the court of first instance, however many judges are on it,” Mr. Shapiro said.

Republicans on Capitol Hill have proposed solutions to the increasing use of nationwide injunctions. Some have introduced legislation that would block lower court judges from issuing nationwide relief, making any injunction pertain only to the parties named in the case.

Any Senate legislation would require 60 votes to pass. At least seven Democrats would have to join the Senate’s 53 Republicans, an unlikely scenario.

Democrats in the past have backed legislation that would create the three-judge panel scenario. The Fair Courts Act of 2023 would have provided a three-judge panel to issue any relief with a nationwide effect.

The Voting Rights Act requires a three-judge panel to weigh the constitutionality of congressional maps. A circuit court appellate judge is usually assigned to a panel with two district court judges to consider voting rights concerns. Their ruling is then appealed directly to the Supreme Court.

A similar scenario could be used for matters involving requests for nationwide injunctions against the federal government.

Josh Blackman, a professor at South Texas College of Law, supports the idea of a three-judge panel and said its rulings would require Supreme Court review.

He said that would force the high court to take up critical national issues.

“The court should decide sooner rather than later,” Mr. Blackman said.

A 2024 Congressional Research Service report shows that Congress authorized three-judge panels as far back as 1910. In 1937, Congress required any constitutional challenge to be considered by a three-judge panel, but that lasted just a few years.

Critics found it difficult for administrative resources to have three judges weigh so many cases, and a required Supreme Court review placed a burden on the high court.

Any procedure for universal injunctions would have to be created by Congress, not the Supreme Court.

Meanwhile, the Supreme Court is expected to hear arguments Thursday on nationwide injunctions in a case involving a universal blockade against Mr. Trump’s move to end birthright citizenship.

The high court may address the use of nationwide injunctions by lower district court judges in their ruling, which is expected by the end of June.