There Are Too Many Judicial Injunctions - Statecraft

Summary

Podcast Summary: Statecraft – "There Are Too Many Judicial Injunctions"

Episode Details:

Title: There Are Too Many Judicial Injunctions
Host: Santi Ruiz
Guest: Nick Bagley, Expert in Administrative Law, Former Special Counsel and Chief Legal Counsel to Michigan Governor Gretchen Whitmer
Release Date: February 19, 2025

1. Introduction to Judicial Review

[00:54]
Santi Ruiz opens the discussion by introducing the topic of judicial review, a concept that may sound complex but is essential to understanding the interplay between the judiciary and the executive branch.
Nick Bagley provides a foundational explanation:

“Judicial review is the power of the courts to review government action... the courts review acts of Congress for constitutional consistency and assess administrative actions by regulatory agencies.”
This sets the stage for exploring how judicial review has evolved and its current implications.

2. Historical Context and Evolution

[01:55]
Bagley delves into the history of judicial review in the United States, highlighting its origins with the Supreme Court’s role in constitutional review. He notes that initially, courts were hesitant to interfere with congressional actions and the executive branch, maintaining separate spheres of authority.

“The traditional role of the courts was to resolve private disputes... judicial review was narrow and circumscribed relative to what we have today.”
The evolution accelerated in the 20th century with the rise of the administrative state and the Administrative Procedure Act of 1946, which broadened the scope of judicial review over administrative agencies.

3. Recent Developments: Trump's Executive Orders and Judicial Injunctions

[03:58]
Ruiz brings the conversation to the present, discussing the flurry of executive orders issued during the Trump administration. These orders cover various areas, including federal worker buyouts, agency shutdowns, immigration enforcement, and funding for institutions like NIH.
She points out the immediate judicial response:

“A big pile of these have, to various extents, been immediately subject to injunctions to pauses from district court judges through this power of judicial review.”

4. Mechanics of Judicial Injunctions

[04:46]
Bagley explains the process following an executive order:

Issuance of Executive Order: Santi Ruiz describes these as directives that guide executive branch agencies.
Agency Action: Agencies implement the orders, often resulting in final agency actions.
Judicial Review: Under the Administrative Procedure Act, these actions are presumptively reviewable in court.
Lawsuits and Injunctions: Individuals or groups affected by agency actions can sue, leading to injunctions that pause or modify the implementation of the orders.

He remarks:

“Agencies are moving to implement the executive orders, and then are subject to review where lawsuits can challenge their compliance with the law or claim arbitrary and capricious behavior.”

5. Rise of Nationwide Injunctions

[06:27]
Ruiz seeks clarification on the nature of nationwide injunctions, to which Bagley responds:

“Nationwide injunctions are actually pretty new... Courts have become much more comfortable in issuing injunctions on a nationwide basis, extending the effect beyond the parties involved.”
He attributes this shift to increased political polarization and the strategic use of injunctions by attorneys general aligned with opposing political parties.

6. Critiques of Judicial Review

[12:17]
Bagley articulates his critical stance on the current state of judicial review:

“Judicial review can become a very serious impediment to the smooth functioning of government operations.”
He compares it to having "a three judge panel of lawyers" oversee business decisions, which can stifle effective governance.
Bagley highlights two problematic aspects:

Legal Overreach: Agencies exceeding their legal mandates.
Arbitrary Standards: Courts evaluating the reasonableness of agency actions, leading to excessive administrative burdens.

7. Reactions Across the Political Spectrum

[18:30] – [22:51]
The discussion explores the evolving political dynamics surrounding judicial review:

Conservative Legal Movement: Historically champions judicial review to limit administrative overreach. Recently, some conservatives, including members of the Trump administration, argue that judicial review itself is overreaching.
Left-Wing Perspectives: Some Democrats are beginning to question the extensive role of courts in governance, similar to Bagley’s views.
Bagley emphasizes:

“Judges setting policy through judicial review undermines democratic processes and trusts the political system less than necessary.”

8. Future Outlook and Potential Legal Challenges

[27:51] – [30:10]
Bagley forecasts the trajectory of judicial injunctions:

Supreme Court Involvement: Likely intervention through the shadow docket to address injunctions swiftly.
Legislative Inaction: Limited prospects for Congress to enact significant reforms due to political gridlock and competing interests.
Possible Permitting Reforms: Minor legislative changes focused on specific areas like permitting processes may occur, appealing across the political spectrum.

He concludes:

“Changing the foundational rules of administrative law is difficult... However, we might see narrower reforms, particularly in permitting processes, even if broader changes remain elusive.”

Notable Quotes

Nick Bagley on Judicial Review’s Traditional Role:

“[Judicial review] was narrow and circumscribed relative to what we have today.”
([01:55])
Bagley on Administrative Overreach:

“Judicial review can become a very serious impediment to the smooth functioning of government operations.”
([12:17])
Bagley on Nationwide Injunctions:

“Nationwide injunctions are actually pretty new... Courts have become much more comfortable in issuing injunctions on a nationwide basis.”
([06:27])
Bagley on Political Dynamics:

“Judges setting policy through judicial review undermines democratic processes and trusts the political system less than necessary.”
([18:30])

Conclusion

In this thought-provoking episode, Nick Bagley and Santi Ruiz dissect the complexities of judicial review and its profound impact on the functioning of the executive branch, especially in the context of the Trump administration’s use of executive orders. They explore the historical evolution, current challenges, and potential future of judicial injunctions, highlighting concerns about overreach and the delicate balance between judicial oversight and effective governance. The conversation underscores the increasing politicization of the judiciary and the urgent need to rethink administrative law to ensure the smooth operation of government in a polarized political landscape.

Subscribe to Statecraft at www.statecraft.pub to receive interview transcripts and more insightful analyses directly to your inbox weekly.

Transcript

Unknown Speaker (0:00)

Foreign.

Santi Ruiz (0:03)

Hi, this is Santi Ruiz. Welcome to Statecraft. We're doing an emergency podcast today with friend of the pod, Nick Bagley. Nick is an expert in administrative law. He served as special counsel and chief legal counsel to Michigan Governor Gretchen Whitmer. We've had him on a couple times for conversations on how bureaucracy is breaking government and whether the courts broke environmental review with a recent decision. Nick, thank you for joining.

Nick Bagley (0:28)

I'm happy to be here.

Santi Ruiz (0:30)

We brought you on to explain a concept that I think to lay audience can sound kind of scary. So judicial review. We're going to talk about judicial review today. And it sounds like legalese, but my impression is judicial review is not especially complicated. Most people are familiar with this at a kind of basic civics level. Will you explain just before we get into the big political controversy of the day, what's judicial review?

Nick Bagley (0:54)

Yeah. So judicial review is the power of the courts to review government action. And this is not actually the traditional office of the courts. The traditional role of the courts was to resolve private disputes. So if I punched you, you could sue me for a battery and I'd potentially owe you money and a jury would hear our dispute. But over time, judges started playing a more central role in superintending what it is that the government does. It started out really with constitutional review. So the idea that the courts review an act of Congress and could decide whether that act of Congress was consistent with the Constitution, that kind of constitutional review, of course, still happens today. But probably the more important kind of judicial review for the day to day functioning of the government comes through. We might think of administrative review, a review of what an administrative agency or a regulatory agency does. A lot of our biggest and highest profile fights arise in connection with that kind of judicial review.

Santi Ruiz (1:55)

Will you say a little bit more about that order of events? That first, judicial review in the American context mostly meant reviewing congressional actions, congressional decisions to determine whether they're constitutional. And then only later we kind of added in executive branch review.

Nick Bagley (2:12)

The story is complicated. And you know, the 19th and 20th, 19th century in the United States when it comes to judicial review, looked very different than it does today. But the basic picture was really from the very beginning of the republic, the US Supreme Court asserted the power to decline to apply laws that it believed that the courts believed were inconsistent with the Constitution. The idea being that the Constitution is higher law and it would sort of trump any congressional enactment that flew in the face of that higher law. In practice, the federal courts were very ginger about reviewing acts of Congress and striking them down as unconstitutional, but it would do so from time to time. On the administrative side, the courts were even more hesitant to interfere with the day to day operations of the federal government. There was an idea that just like the executive branch can't say, hey, that court opinion, I disagree with it, I'm just going to overturn it. The executive branch doesn't sit to review the work of the Supreme Court. Well, there was an idea that actually the courts likewise couldn't sit to superintend the decisions of the executive branch. And that meant that each of the branches were kind of kept in a tighter sphere. They were kept in what they called their separate spheres. There were still opportunities for the courts to say when a government agent might have gone too far in certain narrow circumstances. But that kind of judicial review tended to be fairly narrow and circumscribed relative to what we had today. And it really wasn't until the 20th century, the rise of the administrative state, the adoption of the Administrative Procedure act in 1946, that we get something that looks like the kind of review that we are used to today.