By Bill Chizek @Adobe Stock
“A Republic, if You Can Keep It”
That prophetic warning came from Benjamin Franklin, who would be aghast today at what is going on with our constitution: injunction dysfunction.
The goal of the Judicial Relief Clarification Act of 2025 (JRCA), introduced by Judiciary Committee Chairman Chuck Grassley (R-Iowa), is to rein in judicial injunctions like the ones currently hampering President Donald Trump’s popular MAGA agenda. According to a Judiciary Committee Majority, the Act would “limit federal court orders to parties directly before the court, ending the practice of universal injunctions.” Injunctions can be controlled, but with great difficulty.
American Greatness reports that Sen. Grassley will hold a hearing Wednesday to discuss his “legislative solutions to the bipartisan problem of universal injunctions.”
The proposal comes from a slew of district court rulings and orders blocking multiple key Trump administration objectives, including efforts to end birthright citizenship and end DEI initiatives, terminate federal grants, and use a wartime law to deport criminal illegal immigrants.
Over the weekend, Grassley wrote: “… these nationwide injunctions have become a favorite tool for those seeking to obstruct Mr. Trump’s agenda.”
In NRO. Andrew McCarthy addresses judicial overreach. And no, McCarthy isn’t advocating, as Andrew Jackson did, that if the courts make decisions, enforcing them should be left to the courts. Courts, in theory, are the nonpolitical branch of our government. The role of the courts is to say what the law is, not to enforce it.
It is not for them to make policy; the prerogative is given to the political branches accountable to the people whose lives are affected. The judge’s burden is to dispose of cases or controversies — justiciable claims of concrete harm brought by a plaintiff allegedly aggrieved by the defendant — by saying what the law is. Because a court merely interprets the law within the four corners of the dispute, it settles the legal rights of the parties and nothing more.
Taking a Bipartisan Stand
None other than Justice Elena Kagan, the Supreme Court’s most formidable progressive voice, asserted: “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
Nationwide injunctions, concurs McCarthy, run roughshod over the separation of powers, the Constitution’s structural safeguard of liberty and self-governance.
McCarthy argues that the court system is skewed, that the judges are too activist.
But the surge of injunctions emerged seamlessly from other long-standing anomalies. The progressive administrative state has overrun federalism: in particular, Madison’s conceit (in Federalist No. 45) that there must be a divide between internal and external governance, such that diverse states and local communities regulate “numerous and indefinite” matters closest to home, with the central government limited to the “few and defined” imperatives of nationhood — defense, diplomacy, sound currency, and commerce that are truly interstate and international. This has marginalized healthy pluralism and self-determination in favor of top-down, one-size-fits-all rule.
Senator Chuck Grassley (R., Iowa) perhaps makes the best legislative proposal.
He would follow the Constitution and, consistent with Congress’s control over the jurisdiction of the lower federal courts, resolve that judges’ decisions are limited to affecting the parties to the lawsuit. Plaintiffs who sought a nationwide injunction would have to comply with the rules governing class action lawsuits, which include significant hurdles for class certification. Because they are exactingly regulated, class actions often take years to play out. Alas, today’s tribal politics stifle potential legislative reform: Sure, Democrats seethed when Obama and Biden were blocked by injunctions, but their base would mutiny if they were seen as unshackling Trump; Republicans would respond in kind if a Democrat retook the White House in 2028.
Are our supine legislators spurning responsibility?
In American Greatness, Grassley gives several examples:
- When President Obama usurped the legislative branch’s constitutional prerogatives with his Deferred Action for Childhood Arrivals program, Congress did nothing.
- When judges usurped legislative and executive authority, blocking the president’s travel moratorium and his attempt to rescind Obama’s lawless executive action on DACA, Congress did nothing—no criticism of the judges responsible, no threat of hearings, nor attempts to limit the courts’ jurisdiction over immigration cases, or cracking down on district court judges’ ability to issue nationwide injunctions. Nothing.
Wonders Mark Pullian, Who in Congress is going to lead the charge to call for the impeachment of activist judges as a solution?
Even with Republican majorities in both chambers, laments Mr. Pullioan, here’s what our 535 senators and reps collectively cannot pass:
- Balance the budget
- Repeal Obamacare
- Fund a border wall,
- Control rogue agencies
- Cut federal spending.
“Indeed, the GOP Senate faces a backlog of outstanding judicial nominees awaiting approval, “and just barely averted granting mass amnesty to 2 million illegal aliens with virtually no concessions in exchange.”
Judicial activism is a serious problem, continues Mr. Pullian. There are no easy solutions. “Judicial term limits or elections for federal judges would require a constitutional amendment. That’s a near-impossible hurdle.”
Well then, wouldn’t constitutional amendments work?
Mr. McCarthy rightly knows that we did not reach our predicament overnight. And we won’t escape it easily or quickly. Can America’s leaders muster the political will to enforce the long-ignored Constitution entrusted to us by the Founding Fathers?
Warns Andrew McCarthy, “There is no alternative.”
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