Dershowitz Challenges Supreme Court on Nationwide Injunctions

Clear Facts

• Alan Dershowitz criticized the Supreme Court for not addressing a crucial question in a case about nationwide injunctions.
• The case involves the use of universal injunctions by district judges, often used to block executive actions.
• Dershowitz suggests a legislative solution to the issue, proposing the creation of a new court to handle nationwide injunctions.

Harvard Law Professor Alan Dershowitz recently expressed his concerns regarding the Supreme Court’s handling of a pivotal case that could significantly alter the federal judiciary’s approach to nationwide injunctions. Dershowitz argued that the Court “failed to ask the hardest question” during their deliberations.

The Supreme Court is currently examining whether district judges should have the power to issue universal injunctions. These injunctions have been a favored tool among plaintiffs aiming to obstruct executive actions, particularly those initiated by former President Trump, thereby challenging the separation of powers.

Dershowitz highlighted a critical oversight by the Court, stating, “They failed to ask the hardest question. The hardest question is ‘What if you have one thing, the executive order, unconstitutional, and I’m enjoining it, and another judge in the next state saying, no, no, no, it’s perfectly OK, and you should continue to use it?’”

In the case under review, all four lower court judges deemed the executive action unconstitutional. However, Dershowitz attributed this uniformity to strategic judge shopping by plaintiffs.

“In this case, all four judges ruled that it was unconstitutional. That’s because, of course, the plaintiffs’ judge shopped and went to judges who they thought would give them favorable rulings,” he explained.

Dershowitz further emphasized the potential for conflicting judicial decisions, noting, “But if one judge combined everybody, you’re going to get many situations where you have one judge going one way and one the other way, and the court really didn’t deal with that.”

To address this complex issue, Dershowitz proposed a legislative remedy. He suggested, “Congress should pass a statute creating a new court like the FISA Court, five judges, and only they can issue nationwide injunctions.”

The backdrop to this legal debate includes the Supreme Court’s decision to pause the Trump administration’s expedited deportation efforts of Tren de Aragua members, invoking the Alien Enemies Act of 1798. This decision temporarily halted Trump’s executive order, which sought to use the statute to deport gang-affiliated Venezuelans, citing national security concerns.

As the nation awaits the Supreme Court’s ruling, the discussion around nationwide injunctions remains a contentious topic, with potential implications for the balance of power between the judiciary and the executive branch.

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