This Note will explain the constitutionality and legal scope of the executive order as a political tool of the president. It will then discuss the rise of nationwide injunctions and the judicial system’s changing attitudes toward such injunctions as a viable judicial tool. Next, it will explain the series of executive orders passed by President Donald Trump—which together constituted the Muslim ban—and the nationwide injunctions issued by district courts in response to these orders, culminating in the Trump v. Hawai’i Supreme Court decision. Finally, it will discuss the legislation for which Trump v. Hawai’i paved the way: The Injunctive Authority Clarification Act of 2018, which sought to prohibit courts from issuing nationwide injunctions.

Ultimately, this Note will argue that Trump v. Hawai’i was decided correctly, but that the consequences of the decision as they relate to expanding executive power and the case’s procedural history have serious implications for the future of judicial lawmaking. This Note will critically analyze arguments on both sides of the issue of whether nationwide injunctions should be prohibited. Additionally, this Note argues that while nationwide injunctions have positive effects, those effects are outweighed by the incentives they create for forum shopping and the judicial territorial clashes they create that undermine judicial decisionmaking. Finally, this Note argues that prohibiting nationwide injunctions entirely, as the Injunctive Authority Clarification Act would have done, is not the proper solution. Instead, nationwide injunctions should be limited in some way, such as allowing only district- or circuit-wide injunctions.

It was a dark time for the United States. Hopelessly outnumbered and outgunned, the federal troops at Fort Sumter surrendered to Confederate forces on April 13, 1861. Four days later, Virginia politicians voted to secede, and the Commonwealth militia mobilized to seize federal positions throughout the state. Terror swept through Washington, D.C., which suddenly found itself “on a military frontier.” Then things got worse. The Maryland state legislature announced a special session to decide whether to follow Virginia’s example. Riots by Confederate sympathizers exploded across Baltimore as word got out that the federal government was trying to bring in reinforcements by train. Mobs in Maryland blocked Massachusetts’s troops from reinforcing the pathetically under-defended capital. Authorities in Baltimore burned the city’s main railroad bridges—an act that “looked like plain treason” and left the government in Washington “defenseless and cut off from the rest of the North.”

Federal agencies make an astounding number of policy decisions, engaging in more lawmaking and adjudication than Congress and the federal courts. These policy judgments range from the seemingly trivial, such as the size of holes in swiss cheese, to matters of life-and-death importance, such as how to limit power plant emissions of sulfur dioxide, nitrogen oxides, and mercury. According to the statute books, over 1100 Senate-confirmed presidential appointees are supposed to run these agencies and direct these policy decisions, comprising a small but critically important component of a federal workforce of over 2.5 million employees. Yet filling these top-level positions in the federal administrative state is cumbersome, inconsistent, and at times controversial. New administrations are often quick to select the cabinet but take much longer to staff the next few layers. Appointee tenure is short, leading to many new openings a year or two later. Then agency officials flee government service near the end of an administration. Vacancies, particularly if frequent and lengthy, may have detrimental consequences for the modern administrative state. They contribute to agency inaction, foster confusion among nonpolitical employees, and undermine agency legitimacy. More surprising is that vacancies also can have beneficial repercussions for agency performance.

Since the attacks of September 11, 2001, the Bush Administration has made frequent dramatic appeals to the president’s commander in chief power, arguing that his decisions as military commander in chief in the global war on terror cannot and should not be second-guessed by the other branches of government. The “cannot” comes from Article 2 of the Constitution, which assigns the commander in chief authority solely to the president. Presumably this is what Mr. Bradbury, quoted in the epigraph above, means when he asserts that under the law of war the president is always right. The “should not” comes from elementary common sense. It seems self-evident that legislators and judges lack institutional competence to kibitz commanders about military matters. Their meddling would invite disaster. In its strong “cannot” form, the argument holds that it would be unconstitutional to enforce otherwise-valid laws that constrain the commander in chief’s pursuit of the war—a separation of powers argument for what has come to be known as the “commander in chief override” of other laws. In its weaker “should not” form, the argument holds that other branches of government, particularly courts, must adopt an extremely deferential stance toward the commander in chief’s decisions. Lawyers and legislators simply do not backseat drive on the battlefield.