We always knew it would come to this. Federal district courts are trying to impede the Trump Administration by issuing injunctions that make it impossible for the executive branch to do its work. On the one hand, this is clearly unconstitutional and cannot be allowed to go on. On the other, we probably want to avoid a constitutional crisis. What to do?

Heritage has come out with a very interesting report, authored by Paul Larkin and GianCarlo Canaparo, on just this topic, making a legal case against nationwide injunctions.

They target the specific problem of nationwide injunctions: these are injunctions that prevent the federal government from enforcing laws, executive orders, or agency rules against anyone, not just the plaintiffs who brought the case. This practice reached its peak during Trump's first administration but apparently continued during Biden's presidency, and has already resurfaced with a vengeance just one month into Trump's second term. According to Larkin and Canaparo, these judges have effectively created a "Unitary Judiciary Theory" that parallels the Unitary Executive Theory, a nice turn of phrase. They note that nationwide injunctions effectively allow any one of the 600+ federal district judges to function temporarily like the Supreme Court.

The memo's central constitutional argument is compelling: nationwide injunctions exceed the constitutional authority of federal courts for several reasons. The first is that Article III limits federal courts to deciding "Cases" and "Controversies" between specific parties, not issuing broad policy pronouncements. Secondly, they argue that nationwide injunctions blur the crucial distinction—enshrined in the language of the Constitution—between "Laws" (created by Congress) and "judgments" (issued by courts).

They also cite two Supreme Court precedents (Williams v. Zbaraz and United States v. Mendoza) which they argue established principles that directly contradict the validity of nationwide injunctions. In Williams v. Zbaraz (1980), the Court ruled that a district court lacked jurisdiction to invalidate the federal Hyde Amendment when only the Illinois abortion funding law was being challenged. The Court held that a district court cannot grant relief on issues not in dispute or unnecessary to remedy the plaintiff's specific injury – establishing that courts must limit relief to matters directly before them.

In United States v. Mendoza (1984), the Court unanimously rejected the application of non-mutual offensive collateral estoppel against the federal government. In other words, the Court held that the government cannot be precluded from relitigating an issue it lost in a previous case with different parties. The Court emphasized that allowing such preclusion would severely hamper the development of federal law through the normal process of "percolation" in multiple courts, force the government to appeal every adverse ruling regardless of strategic considerations, and inappropriately empower individual district courts to set nationwide policy.

These two rulings together establish that federal courts cannot extend judgment benefits to non-parties or prevent the government from relitigating issues in different courts with different parties. This, the authors argue (convincingly, to this correspondent's mind) that these principles directly contradict the practice of nationwide injunctions.

The report's recommendation is that until and unless Congress explicitly authorizes nationwide injunctions through legislation, this constitutionally dubious practice should be rejected by the courts. Hopefully, they listen…

Policy News You Need To Know

#Academia — The row over the suspension of federal funds to Columbia over antisemitism continues. It's a good debate to have, and the Trump administration have picked a particularly juicy target. For example, the inestimable Chris Rufo reports today about a pro-Hamas Columbia professor who received $100 million in government grants for "research" "showing" that Alzheimer's is caused by racism. Yep.

#Academia — Speaking of the crazies at Columbia, for some reason the Democrats have granted Republicans the gift of deciding to die on the hill of pro-Hamas activist and Columbia grad student Mahmoud Khalil. CIS's George Fishman clarifies that aliens do not have the same First Amendment rights as US citizens.

#Academia — Speaking of academia more generally: AEI's Preston Cooper has an interesting new report out on the trends in college tuition and financial aid from 1990 to today. The bottomline: "While the sticker price of college rose $13,717 in real terms between 1989–90 and 2019–20, the net tuition students pay after financial aid rose just $4,526. However, the net tuition received by institutions rose by a greater amount ($8,128). This is because institutions captured increases in external financial aid, such as Pell Grants, instead of passing those increases through to students." In other words, government has been plowing ever more money into the giant maw of academia. And what has the American public gotten out of that?

#CR — As you know and as we predicted yesterday, Chuck Schumer caved and announced late last night his intent to advance the House CR, which means that unless an asteroid hits it should pass tonight.

#Reconciliation #DOGE — Meanwhile, Axios reports that President Trump has opened the door for Senate Republicans to try to find "waste, fraud, and abuse" in Medicaid, while emphasizing that benefits won't be "touched." Hmm.

SEE ALSO: The Political Consequences of Medicaid Cuts

#DOGE — This may be the most important policy-related news in a very long time: DOJ is filed a motion to vacate the consent decree in Luevano v. OPM, which prevents the Executive Branch from using merit-based procedures to recruit civil servants. Every single country that has an effective civil service recruits it through some sort of blind merit-based exam. The one at the US State Department used to be quite notorious for its difficulty! But we also have the historical examples of Britain, France, and, famously, China, which first came up with this system over two millennia ago.

#DOGE — R Street's Nan Swift has written a forceful piece arguing that "DOGE doesn't think big enough." What she means is that, instead of going after fraud and abuse, it should think about eliminating entire government functions. But isn't that the whole point of DOGE? To provide a kind of political free lunch, that is to say, to reduce overall spending through efficiency (whether or not that's possible, or to the extent Elon believes, being a separate question) without having to make these kinds of tough choices.

#Tariffs — We just want to quote this from reporter Matt Zeitlin, because it's the best summary we've seen of the past 24-48 hours of what's going on with the trade war and the stock market panic: "Finance types around Trump desperately telegraphing they want the trade wars to end, people actually close to Trump saying it’s not gonna happen."

#NewRight — One of the key questions about the transition was relating to Lina Khan's FTC. Would the new FTC be taken over by traditional Republicans, highly skeptical of antitrust enforcement, or would it be taken over by young guns from the New Right, who like the idea of antitrust? In great part, it turns out, it's the latter, and CEI is not happy.

#Reconciliation — Here is American Compass's Oren Cass arguing against extending TCJA tax cuts.

Friday Essays

It won't surprise you to learn that we very much appreciated this column by Ross Douthat from last weekend on why "US conservatives should fall in love with France." While your correspondent is biased, it's nevertheless true that his case is very convincing and that, as always, he writes it extremely well.

Everyone is buzzing about this chart-filled essay from the FT's John Burn-Murdoch showing that "recent results from major international tests show that the average person’s capacity to process information, use reasoning and solve novel problems has been falling since around the mid 2010s."

Very perceptive essay by Matt Feeney at UnHerd on how the DEI regime, and its attendant bureaucracies, made actual discussion of race issues impossible.

Comprehensive review essay by Peter Hitchens at First Things on the by-now-strongly-established link between chronic marijuana use, mental illness, schizophrenia, psychosis, and violence.

Fascinating article by Brad Pearce in Commonplace on SEL, an innovative American manufacturing company, which makes computerized power relays; SEL "has now grown into one of the largest employee-owned companies in the United States, while transforming the small city where it was founded, Pullman, Washington." Those are the kinds of companies we need to see a lot more of for America to have its hoped-for manufacturing renaissance.