IE 11 is not supported. For an optimal experience visit our site on another browser.

How a Trump-appointed judge reignited a major debate over power in the courts

Are we comfortable placing such power in the hands of individual, unelected district judges — especially in an age when the federal courts often look just as polarized as the country?
Photo illustration: Image of Judge Kathryn Kimbell Mizelle in a blue frame next to an image of a woman at an airport with the mask partially covering her mouth.
The problem with Mizelle’s ruling is not its nationwide scope.MSNBC / Getty; US Federal Government

On Monday, Tampa, Florida-based federal District Judge Kathryn Kimbell Mizelle threw out the mask mandate the Centers for Disease Control and Prevention had imposed on all interstate transportation hubs — including commercial airports and airplanes — to suppress the spread of Covid. Mizelle’s analysis, such as it is, focused on two distinct holdings — that the CDC lacked the statutory authority to impose such a mandate (because wearing a mask is unrelated to “sanitation,” a dubious piece of statutory interpretation, to say the least) and that, in any event, the CDC had taken procedural shortcuts in adopting the mandate that also rendered it invalid. Because her decision purports to vacate the entire CDC rule, it has nationwide effect — meaning that, by Monday afternoon, most major airlines and transportation services were no longer enforcing mask requirements.

There has been robust debate over the merits of Mizelle’s ruling, which the Biden White House says it will appeal. But in some corners, it has also rekindled a broader running debate over “nationwide injunctions.”

There has been robust debate over the merits of Mizelle’s ruling, which the Biden White House says it will appeal. But in some corners, it has also rekindled a broader running debate over “nationwide injunctions” — rulings by district courts that block the federal government from enforcing its policies anywhere in the country. In fact, nationwide injunctions have long been a bogeyman — the wrong symptom of the right disease. In this context, the problem with Mizelle’s ruling isn’t its nationwide scope; it’s that we let a single judge (let alone one rated “not qualified” by the American Bar Association) have this much power to be this wrong in the first place.

An “injunction” is a judicial order that compels the defendant to take (or not take) certain action toward the plaintiff. What makes such an order powerful is that a noncomplying defendant can be held in contempt by the court that issued the order — which can include escalating fines and, in extreme cases, confinement until the contempt is “cured.” What makes a “nationwide” injunction different isn’t its nationwide scope; even an ordinary injunction can apply to the parties anywhere in the country. Rather, a “nationwide” injunction is one that compels the defendant to take (or not take) the challenged action against anyone, including those who aren’t plaintiffs.

This is why it’s more accurate to call such relief a “universal” injunction; the misleading “nationwide” term has, unfortunately, been more common. So if I challenge a federal policy, an ordinary injunction bars the government from enforcing that policy only against me; a nationwide injunction bars the government from enforcing that policy against anyone — whether or not they joined me in the lawsuit.

There are scattershot historical examples of such relief, but until recently, they were fairly rare. Part of that is because they were seldom necessary. A party seeking to challenge a federal policy on a nationwide basis could seek to certify a nationwide class of plaintiffs — and file a class-action suit on behalf of all those similarly situated, such as all nationwide air travelers. Then, an injunction barring the government from enforcing its policy against the class of plaintiffs would necessarily bar it from enforcing its policy on a nationwide basis. But the Supreme Court in recent decades has made it far more difficult to bring such suits, and it has also tamped down on other forms of relief that made it easier to challenge federal policies on a nationwide basis.

That’s why universal injunctions became far more common late in the Obama administration and then throughout the Trump administration — when they became a lightning rod. Former President Donald Trump’s supporters, some of them in the Justice Department, repeatedly complained not only that district courts were abusing their powers by issuing so many such orders but also that the uptick in universal injunctions were evidence that judges appointed by Democratic presidents were out to get Trump.

In a series of concurring opinions, Justices Clarence Thomas and Neil Gorsuch echoed these objections. Indeed, the rise of universal injunctions has repeatedly been offered as the principal (if incomplete) defense of the Supreme Court’s increasingly frequent issuance of unsigned, unexplained orders on its emergency docket — some of which froze such injunctions.

But something funny happened when President Joe Biden took over in January 2021. The same commentators, judges and justices who had viewed universal injunctions as lawless when they were issued against Trump started supporting them (or, at least, no longer publicly objecting) when they were issued against Biden.

The very first time that the Biden administration asked the Supreme Court to stay a universal injunction, the court refused — with only Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. And the only time the court has agreed to freeze universal injunctions against a Biden administration policy, Thomas and Gorsuch were two of the four justices to dissent. If your approach to universal injunctions depends upon which president’s policies they’re blocking, then your objection isn’t to universal injunctions at all.

Technically, Mizelle’s ruling vacating the CDC’s mask mandate isn’t a universal injunction; it’s a vacatur of a rule under the Administrative Procedure Act. But it has the same effect — barring the government from enforcing the rule against anyone (not just the plaintiffs in this specific case) anywhere in the country. That’s why Mizelle herself devoted at least part of her analysis to explaining why she was setting aside her prior skepticism of universal injunctions (analysis that is, charitably, unconvincing).

From 1937 to 1976, Congress required any suit challenging federal policies on a nationwide basis to be brought before special “three-judge” district courts.

And yet, if Mizelle is right that the CDC mandate is unlawful, why shouldn’t that decision have nationwide effect? Otherwise, not only would the government be barred from enforcing the unlawful mandate against the small cohort of plaintiffs in that case, but anyone else seeking to benefit from that decision would also have to bring a suit. Simply put, the issue in the CDC mask mandate case isn’t the nationwide scope of the relief Mizelle awarded; it’s the fact that she awarded any relief in the first place.

Which bring us back to the central question: Are we comfortable placing such power in the hands of individual, unelected district judges — especially in an age when the federal courts often look just as polarized as the country?

For a long time, the answer was no. From 1937 to 1976, Congress required any suit challenging federal policies on a nationwide basis to be brought before special “three-judge” district courts — so that any relief would require the assent of at least two judges (the court could divide 2-1) and so that decisions by that court could be immediately and expeditiously appealed to the Supreme Court. And the court, unlike in virtually every other case, had to hear the appeal.

Congress repealed that reform in 1976 — in response to complaints that it was both unnecessary and wildly inefficient. But perhaps the time has come to put it back on the table — and to ask whether we really are comfortable with having the Judge Mizelles of the world effectively supervising federal policy for the near future. Reasonable minds may disagree about the answer to that question, but whatever the answer is, it has vanishingly little to do with the propriety of universal injunctions in the abstract.