Nationwide injunctions: A needed check on agency power grabs

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Recently, a federal judge in Florida struck down the Centers for Disease Control and Prevention's mask requirement for mass transit. There were countless legal and factual errors in the judge's decision, but critics seem to be focusing on the nature of the ruling, arguing that it is unconstitutional for a single judge to stop a federal policy nationwide.

The so-called nationwide or "universal" injunction has been a thorn in the side of at least the last few administrations. For President Barack Obama, federal judges in Texas blocked various policies regarding the environment, health care and more. For Donald Trump, immigration policies such as the travel ban and many other measures were held up by individual judges, often in blue states.

Now, it is COVID-19 mitigation measures being struck down by judges in red states.

For most of us, something just feels wrong with many of these nationwide injunctions. It doesn't seem fair that a single judge could block a policy that applies to citizens across the country. It also seems undemocratic to allow a judge who wasn't elected by the people to override the will of elected officials in Congress and the White House. It's especially galling when litigants seeking to block federal policies can shop for ideologically friendly judges who might be out of the legal mainstream.

But not everything that is bad is unconstitutional. Sometimes reform is better than abolition.

This is not merely hypothetical. For 75 years, American administrative law has been governed by a super-statute called the Administrative Procedure Act. The APA governs how federal agencies, like the CDC, issue regulations.

Typically, Congress will pass a law authorizing a federal agency to issue regulations — such as the CDC's mask mandate — and then that agency will develop rules in its area of expertise. This is how virtually every important federal regulation has been adopted — on clean air and water, highway safety, banking, pharmaceuticals and more.

Importantly, delegations of power from Congress are not blank checks. Under the APA, federal judges have the authority to "set aside" an agency's regulations if they exceed Congress' mandate or are otherwise "arbitrary and capricious." In other words, Congress delegates power to agencies knowing that there is a judicial check on excessive uses of that power.

If the Supreme Court were to say that it's unconstitutional for a judge to block federal actions nationwide, then real judicial review would not be possible.

The irony is that critics of nationwide injunctions complain that judges are substituting their judgment for that of Congress and the executive branch. But a decision to make this kind of review unconstitutional would also substitute judges' views for those of Congress and the White House. It was Congress and the executive branch that set up the judicial review process in the first place.

This is not to say that nationwide injunctions should be common. They should be exceedingly rare. But the goal should be to reform, not abolish, nationwide relief. To avoid the "single judge" problem, some scholars have proposed laws to require that challenges like the mask case go to special three-judge courts or straight to a circuit court.

To avoid the "shopping for judges" problem, Congress could require that these cases are randomly assigned.

These changes should be on Congress' agenda. But if five justices of the Supreme Court say that this type of review is unconstitutional, then those options would be moot.

Criticize the mask mandate case all you want — the decision deserves criticism. But finding it unconstitutional would do away with a lot more than this one decision.