Attorney General William Barr has delivered a major speech to the American Law Institute on the subject of nationwide injunctions. An excerpt:
While the DACA case provides a stark example of the trend in nationwide injunctions, at this point, it is hardly an outlier. Since President Trump took office, federal district courts have issued 37 nationwide injunctions against the Executive Branch. That’s more than one a month. By comparison, during President Obama’s first two years, district courts issued two nationwide injunctions against the Executive Branch, both of which were vacated by the Ninth Circuit. And according to the Department’s best estimates, courts issued only 27 nationwide injunctions in all of the 20th century.
Some say this proves that the Trump Administration is lawless. Not surprisingly, I disagree. And I would point out that the only case litigated on the merits in the Supreme Court—the so-called “travel ban” challenge—ended with President’s policy being upheld. But my aim today is not to debate the merits of any particular policy; it is to discuss the improper use of nationwide injunctions against policies of all stripes. Specifically, aside from the particular oddities of the DACA case, I want to highlight five ways in which nationwide injunctions are inconsistent with our American legal system.