American Bonaparte, American Kritarchy

Exploring the Limits of Executive Power in the American Republic under Trump

On February 15th, President Trump posted a famous quote to the top of his Truth Social feed. “He who saves his Country does not violate any Law.”

The quote is actually an English translation of a French maxim, “Qui sauve la patrie ne viole aucune loi,” commonly attributed to Napoleon Bonaparte. Whether the Emperor of France ever uttered those exact words, they certainly were Napoleonic in flavor. Napoleon was not just a man of bold action - he was a scion of the French Enlightenment, a man who felt compelled in his exile to philosophically justify his actions to posterity.

Consider the events of 13 Vendémiaire (October 1795). France’s new Directory government, facing a dangerous royalist uprising in Paris, called on the then 27-year old general Napoleon Bonaparte to put down the rebellion. As thousands of armed insurgents converged on the National Convention, Napoleon fired “a whiff of grapeshot” into the crowd. Hundreds were killed and wounded by the fifteen-minute barrage. The rebellion was crushed and Napoleon was hailed as the savior of the Directory. Royalist critics sneeringly nicknamed him “General Vendémiaire” for the Republican month of the incident and called him a butcher of civilians. Napoleon, however, embraced the title as an honor. He later claimed it as “mon premier titre de gloire” – “my first title of glory” – because he had preserved the Revolution. Years afterward, while in exile, Napoleon remained unapologetic about dispersing the crowd with cannon. He maintained that France had been in peril and that his duty was to the Republic: “I found the Constitution half-destroyed and could not save liberty by any other means.”

Four years later, on 18 Brumaire (9 November) 1799, Napoleon orchestrated a a coup d’état against the very Directory he had once saved. The newly-declared First Consul of the French Republic issued a public proclamation. “Citoyens, la Révolution est fixée aux principes qui l’ont commencée; elle est finie.” “Citizens, the Revolution is now established on the principles that began it; it is finished.”​ His takeover had fulfilled the Revolution’s mission. Napoleon had enacted, not a coup against the Revolution, but a coup for it. By his success, the original goals of the French Revolution had been secured (or so he claimed). In Napoleon’s view, France needed strong, unified leadership to avert collapse: “I believe it my duty to accept command… for the national glory acquired at the cost of [our soldiers’] blood,” he wrote.

After five years as First Consul, Napoleon took the dramatic step of converting the Republic into an Empire. In May 1804, responding to a plot against his life and pressure from allies in the government, the Senate petitioned Napoleon to assume the title of Emperor. A plebiscite overwhelmingly approved the change. On December 2, 1804, in a lavish ceremony at Notre-Dame Cathedral in Paris, Napoleon crowned himself Emperor Napoleon I. In his message to the French Senate, Napoleon justified his coronation as the only means to institutionalize the Revolution, making sure that its gains would be permanently safeguarded against royalist treachery and revolutionary chaos by a stable Bonaparte dynasty. “For the good of the country, we must above all instill confidence in the present and security in the future,” he explained.

Even in exile on St. Helena, Napoleon continued to insist that he had always acted for the benefit of France, not himself. “Everything I did, I did for France’s greatness. Can that be a sin?” he wrote in his memoirs. True, he had been ruthless in seizing power — but Europe was in turmoil, and only a figure of his caliber could lead France. “They wanted me to be another Washington,” he told British visitors, “but Washington’s task was easy – he built a new nation across the ocean. I had crowned heads arrayed against me and the tumult of an old world to contain… I would have loved to enjoy private life and the quiet of a constitutional reign, but fate placed me amid incessant crises… Britain made me an Emperor against my will by refusing to make peace when I was First Consul.”

I feel you, bro. I just wanted to play video games.

Trump Channels Napoleon

More than a few commentators have said something similar of Trump. Had Trump simply been allowed to stay in power in 2020, his second term would have been no more radical than his first. But he wasn’t allowed to stay in power, and his second term is more radical: “2024 Trump is far different from 2020 Trump,” cautions The New Yorker.

Indeed. In the first two months of his second term, Trump has made more use of his executive power than in the entire four years of his first. A full accounting of the impact his executive orders, policy memorandums, and presidential proclamations would tire even dedicated Woe readers, but these seven policy decisions in particular stand out as central to his plans:

1. Trump’s Termination of Climate Funding Programs (EO 14154, 1/20/2025).
   With this executive order, President Trump moved to dismantle federal climate funding initiatives, most notably the $20 billion Greenhouse Gas Reduction Fund established under the Biden-era Inflation Reduction Act. The administration, acting with guidance from the Department of Government Efficiency (DOGE), terminated grants to organizations like the Climate United Fund, citing inefficiency and misalignment with American energy priorities.

2. Trump’s Reassertion of Border Security Authority (EO 14159, 1/20/2025): This EO ordered the immediate suspension of all immigration processing for undocumented entrants and redirected federal resources to expedite wall construction along the southern border. Building on prior policies, the order sidestepped judicial and congressional constraints, claiming that unchecked migration constitutes a national emergency under Article II authority.

3. Trump’s Executive Action on Birthright Citizenship (EO 14160, 1/20/2025). This order denies automatic citizenship to children born in the United States to foreign nationals who are either unlawfully present or in the country temporarily. This action directly challenges longstanding judicial interpretations dating back to United States v. Wong Kim Ark (1898), which have broadly affirmed birthright citizenship for children born on U.S. soil. The White House has contended that the original meaning of the amendment has been distorted and must be corrected in order to preserve the political and civic integrity of the nation.

4. Trump’s Reorganization of USAID (EO 14169, 1/20/2025). Established by Congress in 1998, the United States Agency for International Development (USAID) has long functioned as the federal government’s lead entity for “humanitarian aid” and “foreign development assistance.” Under the guidance of the Department of Government Efficiency (DOGE), the Trump administration placed USAID staff on leave, disabled its public communications, and suspended its overseas operations.

5. Trump’s Initiation of Federal Workforce Reduction (OPM Memorandum, 1/20/2025): The administration ordered federal agencies to identify and prepare for the termination of probationary employees. The memorandum required agencies to compile lists of workers with less than one to two years of service—estimated at 200,000 nationwide—for review by the Office of Personnel Management, targeting those deemed non-essential under the Department of Government Efficiency’s guidance. This action has reignited debates over the Civil Service Reform Act of 1978 and the limits of presidential power in directing agency staffing.

6. Trump’s Suspension of Federal Financial Assistance (OMB Memorandum M-25-13, 1/27/2025). In a sweeping directive, the White House sought to freeze large categories of federal spending previously authorized by Congress. These include funds designated for domestic infrastructure projects, diversity and equity initiatives, and international aid. This policy calls into question the 1974 Impoundment Control Act and the scope of presidential authority in budgetary matters.

7. Trump’s Invocation of the Alien Enemies Act (Presidential Proclamation, 3/15/2025). Passed in 1798, the Alien Enemies Act allows the president to detain or deport the natives and citizens of an enemy nation without trial. The president can invoke the Alien Enemies Act in times of “declared war;” that has happened three times - during the War of 1812, during the First World War, and during the Second World War. It can also be invoked when a foreign government threatens or undertakes an “invasion” or “predatory incursion” against U.S. territory. That has happened just once - in 2025, when Trump invoked it to deport more than 200 Venezuelan migrants without immigration hearings.

How has Trump justified this dramatic exercise of Presidential power? Speaking at DPAC in 2023, he positioned his platform as a matter of national preservation: "We have no choice. If we don’t do this, our country will be lost forever… This is the final battle. They know it. I know it. You know it. Everybody knows it. This is it. Either they win, or we win, and if they win we no longer have a country."

But if Trump is a would-be American Bonaparte, he will have to do more than speak in trance-like mantras, because he must contend with an army far fiercer than any the tricorn-wearing marshal ever faced. He faces an army of judges.

The Empire that Never Ended Strikes Back

With the House and Senate under Republican control, Trump’s opponents have turned to judicial action to slow or stop Trump’s muscular exercise of executive power — and it has worked.

The Associated Press maintains a Trump Executive Order Lawsuit Tracker. As of today (March 21) it is tracking 101 lawsuits. In 37 of these lawsuits, the courts have fully or partially blocked Trump’s EO; in 23, the courts have left the EO in effect; and in 63, the decision is still pending.

Every single one of the major policy initiatives I mentioned above has been blocked by a district court case:

1. Washington vs. Trump: Judge John C. Coughenour (U.S. District Court, Western District of Washington, Reagan appointee) issued a Temporary Restraining Order (TRO) on January 23 (extended to a Nationwide Preliminary Injunction (NPI) on February 6), halting EO 14160 (“Protecting the Meaning and Value of American Citizenship” as unconstitutional. He called Trump’s actions to end Birthright Citizenship a violation of the 14th Amendment and threat to the rule of law.

2. ASAP vs Trump: Judge Deborah L. Boardman (U.S. District Court, District of Maryland, Biden appointee) issued an NPI on February 5 blocking EO 14160 for denying citizenship to children of undocumented or temporary-status parents, calling it a violation of the 14th Amendment.

3. New York vs Trump: Judge Paul A. Engelmayer (U.S. District Court, Southern District of New York, Obama appointee) issued a TRO on February 7 blocking DOGE staff from accessing sensitive Treasury data, citing privacy laws.

4. ACLU vs. Trump: Judge Joseph N. Laplante (U.S. District Court, District of New Hampshire, Bush appointee) issued an NPI on February 10, 2025 blocking EO 14160 from ending birthright citizenship, calling it “wildly unconstitutional.”

5. AIDS Vaccine Advocacy Coalition v. Trump: Judge Amir H. Ali (U.S. District Court, District of Columbia, Biden appointee) issued a TRO on February 13 blocking a funding freeze tied to USAID’s suspension under EO 14149, ordering $2 billion disbursement.

6. ACLU v. Trump: Judge Haywood S. Gilliam Jr. (U.S. District Court, Northern District of California) issued an NPI on February 14 blocking the suspension of immigration processing under EO 14159.

7. Rhode Island vs. Trump: Judge John J. McConnell Jr. (U.S. District Court, District of Rhode Island, Obama appointee) issued an NPI on February 25 blocking a funding pause on federal grants under OMB Memorandum M-25-13.

8. Washington vs. Trump: Judge James L. Robart (U.S. District Court, Western District of Washington) issued an NPA on February 27 enjoining the administration from using emergency powers to bypass judicial and congressional constraints in EO 14159.

9. NCON vs. OMB: Judge Loren AliKhan (U.S. District Court, District of Columbia, Biden appointee) issued an NPI on March 6 blocking the funding freeze directed by OB Memorandum M-25-13.

10. Sierra Club v. DHS: Judge Randy Crane (U.S. District Court, Southern District of Texas) issued TRO on March 10 halting the redirection of federal funds to expedite border wall construction under EO 14159.

11. American Federation of Government Employees v. OPM: Judge William Alsup (U.S. District Court, Northern District of California, Clinton appointee) issued an NPI on March 13 reversing the mass firings of 25,000 federal workers ordered by the Office of Personnel Management under Memorandum M-25-20.

12. ACLU v. Trump: Judge James E. Boasberg (U.S. District Court, District of Columbia, Obama appointee) issued a TRO on March 15 halting the Trump administration’s attempt to deport 238 Venezuelan men via the presidential invocation of the Alien Enemies Act. The Judge found this likely violated Due Process protection.

13. Global Health Council v. USAID: Judge Deborah L. Boardman (U.S. District Court, District of Maryland, Biden appointee) issued an NPI on March 17 ruling that EO 14169 violated the separation of powers. Her injunction went even further than that in AIDS Vaccine, blocking the dissolution of USAID and ordering the government to reinstate core USAID functions.

14. Immigrant Defenders Law Center vs. DHS: Judge Andre Birotte (U.S. District Court, Central District of California) issued an NPI on March 18 ruling that the use of the Alien Enemies Act violated the Immigration and Nationality Act.

15. NTEU vs. OPM: Judge Amy Berman Jackson (U.S. District Court, District of Columbia) issued an NPI on March 19 blocking further terminations under the OPM Memorandum and ordering agencies to pause all reviews of probationary employees.

16. Climate United Fund v. EPA: Judge Tanya S. Chutkan (U.S. District Court, District of Columbia, Obama appointee) issued an NPI on March 19 preventing the ETPA from canceling $14 billion in grants for green-energy projects given under Biden EO 14008 and rescinded under EOs 14161 “Unleashing American Energy”.

The nationwide scope of these 16 cases has essentially put the entirety of the Trump administration policies on hold. It is worth pointing out how shocking that is. We are a nation of 345 million people with 160 million registered voters. Of those 160 million voters, 81.3 million voted for Trump to be President in 2024.

In contrast, there are only 677 District Court judges. Not one of them was elected; all are political appointees. A mere 7 cases with nationwide preliminary injunctions would have bene enough to unilaterally shut down all seven of Trump’s major initiatives… but just to make sure, each policy was attacked in at least two and sometimes three venues (hence 16 cases).

And of the 16 cases above, 5 are in the District of Columbia, where just 702,000 of our 345 million Americans live there. In other words, one district representing 0.2% of the American population shut down 5 of the President’s 7 major policy initiatives. The other 2 were shut down by a single judge in Maryland.

This is no way to run a Republic! The Framers of the Constitution expected Congress to be the most important body in the nation. But the contemporary evolution of the two party system in conjunction with the filibuster rules has left Congress perpetually deadlocked.

America seems to have only three options left for government: an elected autocrat; a unionized bureaucracy; or an unelected kritarchy of judges — and right now the kritarchy is winning.

The Basis (or Lack Therefore) for National Injunctions

Many people are surprised to learn that the U.S. Constitution makes no mention anywhere of any power of judicial review.

Article III, Section 2, merely states “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made… [and] to Controversies between two or more States…” That’s it. It doesn’t define what the judicial power consists of. Nowhere does it say that the justices of the SCOTUS can rule an act of the Executive or the Legislature unconstitutional.

How, then, did the Judicial Branch come to be so powerful that a District Court judge representing 700,000 people can unilaterally and immediately halt the entire federal government before even holding a trial? (That’s what a preliminary injunction is - an injunction before a trial.)

1803: The Supreme Court Rules the Supreme Court Rules

It is by now well-known that the Court’s power of judicial review was assigned to the Court by the Court itself. The case was the famous Marbury v. Madison (1803), a landmark decision under Chief Justice John Marshall. It was a minor dispute over a judicial appointment by outgoing President John Adams, which the new administration (under Thomas Jefferson and Secretary of State James Madison) refused to honor.

Chief Justice Marshall ruled that a portion of the Judiciary Act of 1789, which expanded the Court’s original jurisdiction, was unconstitutional because it conflicted with Article III’s limits on that jurisdiction. While humbly pleading that the Court didn’t have jurisdiction in the particular, he did so by asserted that "it is emphatically the province and duty of the judicial department to say what the law is," establishing that the Supreme Court could invalidate laws inconsistent with the Constitution. Very clever, Justice Marshall was.

A number of the Founding Fathers, most notably Thomas Jefferson, strongly opposed Marbury, arguing it gave unelected judges undue power. They saw Congress or the people, via amendments, as the proper check on unconstitutional laws. But Jefferson, like the Anti-Federalists who had opposed the Constitution itself, lost the fight; today it is taken for granted that the Judicial Branch gets to “say what the law is”.

Given that the Constitution doesn’t say that federal judiciary can engage in judicial review, it is not at all surprising that it also contains no explicit provision authorizing “nationwide” or “universal” injunctions by District Court Judges. As with judicial review, it’s just a power that the judiciary gave to itself.

Now, Article III §2 does extends the federal judicial power to cases “in law and equity”, implying that federal courts could issue traditional equitable remedies (like injunctions) when resolving cases. Early Congresses confirmed this by empowering federal courts to issue writs and equitable relief in the Judiciary Act of 1789​.

But the traditional equitable authority assigned to the judiciary generally exercised inter partes (between the litigants) rather than erga omnes (against the world)​ Until the 20th century, even the Supreme Court provided relief only to the named plaintiffs, not to everyone in the nation affected by a law. This didn’t change until over a hundred years after Marbury.

1913: The Supreme Court Decides It Can Issue Nationwide Injunctions

In 1913, the U.S. Supreme Court decided it could issue injunctions with nationwide effect.

The case Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), involved a challenge to a federal law by two New York newspapers. Congress had passed a provision in the Post Office Appropriation Act of 1912 requiring newspaper publishers to disclose the names and addresses of their editors and owners, and to label any paid content as “advertisement,” as a condition for mailing at second-class (subsidized) postage rates​. The publishers viewed this as an unconstitutional interference with freedom of the press and sued the Postmaster General (executive official) to block enforcement of the law​.

While the case was pending, the Supreme Court took the unusual step of granting a temporary injunction halting enforcement of the law not just against the plaintiff newspapers, but against any newspaper nationwide. In October 1913, the Supreme Court issued an order “restraining [the Postmaster General and his agents] from enforcing or attempting to enforce the provisions of said statute, and particularly restraining them from denying to [the appellants] and other newspaper publishers the privileges of the mail” under the new law​.

In other words, the Court put the statute’s enforcement on hold across the board until it could decide the case on the merits. Legal scholars have highlighted this as the first universal injunction in U.S. history – the order protected not only the named publishers but “other newspaper publishers” similarly situated​.

The Court’s interim order did not come with a full opinion at the injunction stage, but implicitly it recognized that if the law were unconstitutional, preventing its enforcement temporarily for all publishers was necessary to preserve the status quo and avoid irreparable harm to First Amendment rights.

When the Supreme Court decided the merits in early 1914, it ultimately upheld the law, finding the disclosure requirements a permissible condition on postal subsidies that did not violate the First Amendment​. Because the law was upheld, the nationwide injunction dissolved and the government was free to enforce the statute thereafter.

At the time the injunction was issued (1913), President Woodrow Wilson’s administration complied with the Court’s order. The Post Office, under Postmaster General Albert Burleson, held off on enforcing the disclosure requirements against any newspaper while the injunction was in place. There was little public controversy about this injunction – likely because it was temporary and the case was expedited.

While Lewis Publishing is cited today s evidence for the power of the court to issue broad injunctive relief against federal statutes even in the absence of an explicit constitutional provision, the government had actually assured the Court it would voluntarily suspend enforcement nationwide while the case was under review. Justice Clarence Thomas has recently suggested the so-called “nationwide injunction” was actually an agreed-upon stay, not a unilateral judicial decree​. Oops.

1963: US Appeals Court Rules It Can Issue Nationwide Injunctions, Too

Legal scholars generally cite Wirtz v. Baldor, 337 F.2d 518 (D.C. Cir. 1963), as the first modern example of a “national injunction” against the federal government​.

Wirtz arose from a challenge to executive action under the Walsh-Healey Public Contracts Act, a New Deal-era law requiring federal contractors to pay prevailing minimum wages. In 1963, Secretary of Labor W. Willard Wirtz set a new nationwide “prevailing wage” determination for manufacturers of electrical motors and generators. A group of companies in that industry, led by Baldor Electric Co., sued to overturn the wage determination, arguing that the Secretary had not followed proper procedures (in particular, the companies were denied access to the data underlying the wage survey)​

The case was heard in federal court in Washington, D.C. A U.S. district judge initially agreed with the companies and set aside the Secretary’s wage determination, effectively forbidding its enforcement. The government (Secretary Wirtz) appealed. On December 31, 1963, the U.S. Court of Appeals for the D.C. Circuit issued its decision, holding that the Secretary’s wage determination was indeed invalid for failing to disclose data and allow a fair hearing, in violation of the Administrative Procedure Act and the statute’s requirements​

The D.C. Circuit remanded the case to resolve whether at least one plaintiff had standing, but crucially it authorized a nationwide injunction once standing was established. The appellate panel directed that the district court “enjoin the effectiveness of the Secretary’s [wage] determination with respect to the entire industry” if any plaintiff was found to have standing​

This instruction was notable – the relief was not limited to the particular companies who sued, but covered all employers in the motor and generator industry nationwide (and by extension, all their workers). Judge J. Skelly Wright, writing for the court, implied that when a federal administrative action is found unlawful, a court has power to vacate it universally. Because the case was not a class action, the explicit justification was that the plaintiffs’ injury could not be remedied without invalidating the entire wage determination. Any lesser relief (for example, exempting only the named companies from the wage rule) would have been unworkable, since the wage determination by its nature set one uniform rate for all federal contractors in that industry​.

The D.C. Circuit’s decision thus reflected a nascent view that the inferior federal courts had the power to order nationwide relief where it is required, a principle that later cases would cite.

Following the D.C. Circuit’s ruling, the government was given 60 days to seek Supreme Court review, during which the injunction was stayed​. In 1964, Secretary Wirtz opted not to pursue the appeal to the Supreme Court (no certiorari petition is recorded, suggesting the administration acquiesced). Instead, the Labor Department began the process of issuing a new wage determination under improved procedures, as the court had invited​.

By this point, President Lyndon B. Johnson had assumed office (after November 1963) – his administration complied with the court’s decree without public incident. There was no noted objection from the President about the scope of the injunction; the focus remained on curing the procedural defects. And so the first nationwide injunction by a court of appeals went into effect, blocking an executive branch regulation across the country.

Its legacy grew slowly – such broad injunctions remained rare for a time​ - but it set a precedent that courts could, when warranted, bar enforcement of a federal policy beyond the particular plaintiffs in the case.

1973: US District Court Affirms It, Too, Can Issue Nationwide Injunctions

The first known instance of a district court (single trial judge) issuing a nationwide injunction against executive action occurred in the early 1970s. In Harlem Valley Transportation Association v. Stafford, 360 F. Supp. 1057 (S.D.N.Y. 1973), Judge Marvin Frankel of the Southern District of New York confronted a challenge under the National Environmental Policy Act (NEPA). The plaintiffs – a coalition of environmental and civic groups – sued the Interstate Commerce Commission (ICC) and the Department of Transportation, claiming the federal government was approving railroad line abandonments without preparing the Environmental Impact Statements (EIS) that NEPA required​.

Essentially, this local New York association objected to a rail closure in their region, but their lawsuit contended that the ICC’s nationwide procedures for abandonments violated NEPA, affecting rail line discontinuances all over the country​

In June 1973, Judge Frankel agreed to issue a preliminary injunction and its scope was sweeping. During the hearing, the question arose whether relief should be confined to the rail line at issue or the geographic area of the plaintiffs, rather than the entire country. However, both the Justice Department and the ICC acknowledged that any injunction in this case “would ‘affect the [agency] in the entire scope of its authority and jurisdiction.’”

Because the ICC’s abandonment procedures were uniform nationwide, halting one abandonment effectively meant halting all. Judge Frankel proceeded to enjoin the ICC from approving any rail abandonments anywhere in the United States unless and until it complied with NEPA by implementing proper environmental review. This far-reaching order marked the first time a lone district judge had halted a federal policy on a nationwide basis (outside of a class action context). As one commentary observed, it was a “truly ‘preliminary national injunction.’”​ The injunction brought to a standstill the ICC’s abandonment decisions across the country.

In his opinion, Judge Frankel justified the broad scope by the nature of the claim: NEPA was a procedural statute meant to be applied uniformly, and selective enforcement would undermine its purpose. He noted that limiting relief just to the plaintiffs’ locality made little sense when the agency’s violation (failing to do environmental impact studies) was systemic. Thus, a nationwide injunction was needed to ensure that all communities – not just the Harlem Valley – would get the benefit of NEPA’s protections during rail closures​.

This reasoning foreshadowed later cases where courts felt that once an agency rule or practice is found illegal, vacating or enjoining it in its entirety is the proper remedy under the APA (to prevent an unlawful rule from remaining in effect anywhere)​

The Nixon administration, via the ICC, complied with Judge Frankel’s injunction but also appealed the decision. The U.S. Court of Appeals for the Second Circuit affirmed the district court’s judgment in Harlem Valley v. Stafford, 500 F.2d 328 (2d Cir. 1974), agreeing that NEPA required the ICC to change its abandonment procedures. Following this, the ICC revised its policies to integrate environmental considerations before allowing rail lines to be abandoned.

President Nixon himself did not publicly weigh in on the injunction’s breadth; instead, the matter was treated as a legal compliance issue. The Supreme Court did not grant review, so the Second Circuit’s decision (and the nationwide relief) stood. This episode established a precedent that a single district judge could, in an appropriate case, enjoin a federal agency’s practices nationwide.

2025: The Judges Take Control

After Harlem Valley, other district courts in the late 1970s and 1980s occasionally issued nationwide injunctions – for example, courts enjoined broad enforcement of new regulations under environmental and labor laws – though the practice was still infrequent​.

It remained relatively rare for most of the 20th century – courts often preferred to limit relief to the parties, and Congress even required special three-judge courts for certain nationwide injunctions in earlier eras to check judicial power. From 1963 to 2008, there were only 37 nationwide injunctions total - less than 1 per year for 45 years.

However, in the 21st century, nationwide injunctions have become much more common, especially in high-stakes policy disputes. The Obama administration had 12 nationwide injunctions in eight years; the first Trump administration was hit with 64 in four years​; the Biden administration faced 14 nationwide injunctions in four years; while the second Trump administration has been hit with 37 nationwide injunctions in two months.

That means Trump’s administration has endured 45 years of judicial activism in two months. We are watching a Constitutional crisis develop in real time.

The Problems with American Kritarchy

Justice Clarence Thomas, in a 2018 concurrence in Trump v. Hawaii (2018), wrote that universal injunctions as a whole are “legally and historically dubious,” lacking roots in traditional equity . He noted that English courts at the time of the founding “did not have the power to grant injunctions against the King” and rarely issued orders benefitting non-parties​. Nationwide injunctions “assume a position of authority over the governmental acts of [a] co-equal department” that Article III simply does not confer​.

The Supreme Court’s own reticence in early cases underscored this: in Scott v. Donald (1897), the Court refused to approve an injunction against a state law’s enforcement upon “others in like case”, calling such relief “too conjectural to furnish a safe basis” for equitable power​.

Similarly, in Frothingham v. Mellon (1923), the Court warned that broad relief would force it to oversee another branch’s conduct without clear constitutional warrant. Courts are supposed to decide concrete cases, not act as unelected lifetime super-legislatures vetoing policies at large.

Still, most people today have come to expect that the Supreme Court will, from time to time, be called upon to block some act of executive or legislative overreach, and it seems unlikely that the Court will remove that power from itself.

But even if one grants that the Supreme Court ought to be able to issue a nationwide injunction, District Courts certainly ought not be able to do so. To allow a single district judge issuing an injunction binding the federal government’s actions nationwide is, bluntly, an arrogation of power to the judiciary far in excess of anything justifiable by Constitutional law, legal theory, or Anglo-American history.

Nationwide injunctions short-circuit the normal process of percolating legal issues through multiple cases and circuits. Typically, different courts might rule differently on a contested policy, and the disagreement would eventually be resolved by the Supreme Court. But if the first court to rule issues a nationwide ban, it freezes the legal question, preempting other courts (and other plaintiffs) from adjudicating it.

Attorney General William Barr, among others, has argued that this phenomenon prevents issues from benefiting from multiple judicial viewpoints and essentially allows one judge to dictate the law for the whole country​.

Nationwide injunctions at the district level can also produce conflicting nationwide orders: e.g. one judge enjoins an executive rule nationwide while another judge in a different case declines to – leaving the government in an impossible position. No matter what it does, it’s violating a court order!

The availability of nationwide relief at the district level also incentivizes litigants to forum shop by seeking out a sympathetic judge or circuit to quickly halt a federal program. Evidence shows patterns such as challenges to Obama-era policies being filed in Texas courts (which often enjoined those policies nationwide), while challenges to Trump-era policies frequently went to courts in California or Hawaii; of the dozens of nationwide injunctions against Trump administration initiatives in his first term (2017–2020), a large number came from a tiny handful of judges in districts seen as plaintiff-friendly​.

If any of the 600+ federal trial judges can issue universal orders, advocacy groups will strategically file in districts where they have the best odds, undermining the random, neutral assignment of justice.

Frequent nationwide injunctions also force the Supreme Court to intervene on an emergency basis to stay or undo those injunctions, thus consuming the Court’s shadow-docket attention and distorting the Court’s role. During the Trump years, the Supreme Court repeatedly stayed broad injunctions by lower courts (e.g. involving the travel ban, border wall funding, and asylum rules)​.

Justice Thomas has explicitly invited the Supreme Court to review the permissibility of such injunctions “if their popularity continues”, signaling that he believes the high court must rein them in. Justice Gorsuch has quipped that the increase of nationwide injunctions in recent years “is not normal” and “not an innovation we should rush to embrace”, partly because it allows plaintiffs to win far more relief than their own case would normally merit​.

With two Supreme Court justices calling for reform, there is some cause for hope that it will be settled before the US government collapses into endless litigation. A number of solutions are being floated. All start with an assumption that traditional equity limits should apply - an injunction should ordinarily protect only the plaintiffs before the court.

Professor Samuel Bray has argued that courts should require class-action certification if truly broad relief is warranted​. In other words, a nationwide remedy would only be appropriate if the litigants had already certified a class of all affected persons. Justice Thomas has suggested that universal injunctions be forbidden unless Congress expressly authorizes universal relief in the enacting statute.

Both sound like good ideas. Perhaps there are other, better approaches I did not uncover in my research. Whatever the case, something must be done.

America’s judges have proven unwilling and unable to restrain themselves from becoming would-be kritocrats. The Republic cannot function under their black-robed dictatorship. The judicial system, as it stands, is broken; and because the law is what the courts say it is, the law itself is broken.

In revolutionary France, he who saved his country broke no law. In contemporary America, he who tries to save his country will find the law already broken—just not by him.

Contemplate this on the Tree of Woe.