By: Elizabeth Price Foley –wsj.com – March 25, 202

Congress gave the Supreme Court the authority to curb them by clarifying the Rules of Civil Procedure.

Federal trial judges blocking presidential acts via nationwide injunctions are creating a serious conflict between the executive and judicial branches. The flood of such injunctions provoked President Trump to take to social media and call for the impeachment of a judge who issued a temporary restraining order. Chief Justice John Roberts responded in a statement to reporters that impeachment is inappropriate and the administration should rely on “the normal appellate review process.” Unsatisfied, Mr. Trump wrote on Thursday: “Unlawful Nationwide Injunctions by Radical Left Judges could very well lead to the destruction of our Country! . . . If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!”

The recent outbreak of nationwide injunctions damages our constitutional system. They were almost unheard of before the 1960s. Only 12 were issued against George W. Bush and 19 against Barack Obama during each of their two terms. Joe Biden faced 28. Mr. Trump faced 86 during his first term, almost all issued by Democrat-appointed judges. Two months into his second term, more than 15 have already been issued.

Because nationwide injunctions often appear politically motivated, they create cynicism about the courts and the law. Worse, they enable lower-court judges to thwart the president’s Article II authority even in national security and defense. Lawmakers have introduced bills to halt nationwide injunctions. One recently passed the House Judiciary Committee and will likely pass the full House—then go to the Senate to die in a filibuster.

Nationwide injunctions are issued under Rule 65 of the Federal Rules of Civil Procedure, which was promulgated under the REA. Rule 65 authorizes district courts to issue preliminary injunctions but is silent as to whether they have nationwide effect or apply only to parties before the court. This ambiguity can be eliminated by an amendment to Rule 65, without the need for new legislation.

The REA empowers the Supreme Court to “prescribe general rules of practice and procedure” such as the Federal Rules of Civil Procedure. The Supreme Court can prescribe them on its own under Section 2072. Any rule prescribed must be submitted to Congress by May 1 and “shall take effect no earlier than December 1” of the same year, “unless otherwise provided by law.” If Congress does nothing, the rule stands.

The REA respects the separation of powers between Congress and the Supreme Court by granting final prescription authority to the high court, the only federal court established by the Constitution. Lower federal courts are created by Congress. By acknowledging the justices’ power to prescribe, the REA respects their unique constitutional status, while retaining Congress’s ability to review and reject any rule they prescribe.

The question is whether the Supreme Court is willing to forgo the process under Section 2073 of the REA, which dates to 1988. Critics will note that Section 2073, which involves input from advisory committees, the Judicial Conference and the public, has been routinely employed and become the usual way of developing rules.

But the Section 2073 process often takes years, and federal courts are in crisis. Nationwide injunctions are frustrating the presidency, eroding the separation of powers, and threatening judicial legitimacy. The justices’ authority as well as the president’s is under assault by rogue judges claiming national power using nationwide injunctions. Such national power must be reserved to the only court with constitutional authority to bind the entire nation: the Supreme Court.

An amendment to Rule 65 couldn’t take effect until Dec. 1. But once proposed—by May 1, as required—it would likely have an immediate, beneficial chilling effect on rogue judges. For the sake of the Constitution, the court should act quickly.

Ms. Foley is a law professor at Florida International University.

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Source: A Supreme Court Remedy for Nationwide Injunctions – WSJ