The “first 100 days” of a new presidential administration used to refer to a flurry of presidentially signed laws or executive orders. Nowadays, it refers to a blizzard of nationwide injunctions and temporary restraining orders by numerous partisan federal judges who seek to paralyze a presidential administration they don’t like.
According to the Congressional Research Service, in the first 100 days of President Donald Trump’s second term, his administration was assaulted with 25 nationwide injunctions by federal judges seeking to halt or reverse administration actions. By June, the number of universal injunctions against Trump administration actions had grown to 40. A number of these sought to block Trump executive orders banning diversity, equity, and inclusion policies in the federal government, while others sought to prevent federal agencies from sharing information with the so-called Department of Government Efficiency, to thwart deportation cases, and to require the Trump administration to reverse cancellation of particular federal grants.
Some of these disputes raise legitimate questions of whether the president has exceeded his constitutional authority. The problem is when several lesser federal judges issue nationwide injunctions or temporary restraining orders designed to paralyze executive action until the question can be litigated up through the federal court system, a process that could take months or years.
Abusing their power, many low-level federal judges today act as one-person Supreme Courts, deciding constitutional issues for the whole country from their courthouses in California or Texas or Hawaii. Sometimes, they blatantly substitute their personal values for the law, as did Judge William Young, a U.S. District Judge in far-left Massachusetts. During a hearing, after declaring he was not certain he possessed the authority to do so, the 84-year-old judge declared two executive orders that led the National Institutes of Health to rescind some program grants targeting minorities and the so-called LGBTQ community to be “illegal” and “void”: “I’ve never seen a record where racial discrimination was so palpable,” he said. “I’ve sat on this bench now for 40 years. I’ve never seen government racial discrimination like this.” So much for the nonpartisan judiciary.
If your political party can’t win the White House, then federal judges aligned with it can do their best to paralyze the president to whom your preferred candidate lost. A 2024 study in the Harvard Law Review revealed the shocking growth and blatant partisan weaponization of nationwide injunctions by lower federal court judges.
The practice of using injunctions to block presidential policies began with six injunctions during the two terms of President George W. Bush, then rapidly expanded, leading to 12 injunctions under Obama, 64 under Trump in his first term, and 14 under Biden. Even as their number has increased, the percentage of national injunctions imposed by federal judges appointed by a president of the party that opposes the sitting president’s party rose from 50 percent under Bush to 58.3 percent under Obama to 92.2 percent under Trump to 100 percent under Biden. While lawfare by injunction is disproportionately carried out by Democrats, conservative Republican judges have gotten in on the action as well. In Biden’s first three years as president, every single one of 14 nationwide injunctions, on topics ranging from halting vaccine mandates to immigration and climate change policies, was issued by a judge appointed by a Republican president. In total, 93.6 percent of the nationwide injunctions during the Trump and Biden administrations from 2017 to 2025 were issued by judges installed by a president of the rival party. Not only did Democrat-appointed judges issue 59 of the 64 nationwide injunctions in Trump’s first term, but also more than half of the injunctions were issued by Democratic judges on only three courts: the Northern District of California (23.4%), the District Court of the District of Columbia (15.6%), and the District of Maryland (12.5%).
The same pattern of partisan lawfare by Democrat-appointed federal judges exists in Trump’s second presidency. Three-fourths of the federal judges who have blocked Trump administration actions were appointed by Democratic presidents. According to RealClearInvestigations, Democratic presidents appointed more than 4 in 5 of the judges presiding in federal courts that have issued universal injunctions.
As in Trump’s first term, 6 out of 10 anti-Trump cases have been brought by plaintiffs to only three district courts with mostly Democratic judges—the district courts in D.C., Massachusetts, and Maryland—with the D.C. District Court alone, with 73 percent of its active judges appointed by Democratic presidents, hearing 41 percent of complaints against the Trump administration.
The controversy over the president’s deployment of the National Guard during the Los Angeles anti-ICE riots illustrates the partisan dynamic perfectly. A temporary restraining order against Trump’s deployment was issued by Judge Charles Breyer, a U.S. District Judge of the federal District Court of the Northern District of California. Breyer was appointed to the district court by Bill Clinton, and his brother, Stephen Breyer, was appointed by Clinton in 1994 to the U.S. Supreme Court, where he voted with the liberal faction until he retired in 2022 to allow another Democratic president, Joe Biden, to nominate another progressive, Ketanji Brown Jackson, to the court. Judge Breyer’s temporary restraining order against the Trump administration was unanimously overturned by a three-judge panel of the Ninth Circuit Court of Appeals, based in San Francisco. Two of the three judges who sided with Trump were Trump appointees.
In partisan judicial lawfare, as in electoral politics, California and Texas represent opposite extremes. Four of the six injunctions issued against the administration of George W. Bush were issued by federal judges in California. In the succeeding eight years, Texas district judges issued 7 of the 12 injunctions issued against the Obama administration. Six of the 14 injunctions issued against the Biden administration came from the Southern District of Texas (five) and the Northern District (one). In 2022, after the Supreme Court overturned Roe v. Wade, a single judge in Amarillo, Texas, Matthew Joseph Kacsmaryk, on the basis of a dubious interpretation of the Administrative Procedure Act, issued a stay of the Food and Drug Administration’s approval for the abortion drug mifepristone—even though the FDA had approved the drug decades before. As it happens, Kacsmaryk, a graduate of Abilene Christian University, had worked for the Christian conservative First Liberty Institute from 2014 to 2019, before being appointed to the federal bench by President Trump in 2019.
Another federal judge, Thomas O. Rice, an Obama appointee, of the U.S. District Court for the Eastern District of Washington, a progressive state, then issued a national injunction countering Kacsmaryk’s original injunction—an anti-injunction injunction, as it were. The Republican-dominated Supreme Court unanimously lifted Kacsmaryk’s injunction in 2024.
As the Trump administration has pointed out, federal judges who issue nationwide injunctions themselves may be breaking the law. Rule 65(c) of the Federal Rules of Civil Procedure, which governs federal courts, permits a court to issue a preliminary injunction or temporary restraining order only if the party calling for it posts an “injunction bond” equal to any potential losses from the order. Although the mandatory requirement of an injunction bond was reaffirmed in 2007, federal courts routinely allow parties to sue without posting bond. This has contributed to the proliferation of partisan lawsuits against presidential actions and forum shopping. There is little cost to such litigation, and the payoff can be enormous if a carefully selected partisan judge issues an injunction against a president of the other party.
In 2017, after U.S. District Court Judge Derrick Watson in Hawaii blocked a revised executive order that banned travelers from Iran, Libya, Somalia, Syria, and Yemen from entering the United States on the grounds that it was allegedly an unconstitutional “Muslim ban,” Attorney General Jeff Sessions commented, “I am really amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”
Presidents and their political allies are not the only ones to object to these power grabs by minor federal judges. Some Supreme Court Justices of both parties have indicated they are fed up with the plague of nationwide injunctions. In a talk at Northwestern University Pritzker School of Law in 2022, Justice Elena Kagan, a reliable progressive on the Supreme Court, observed, “You look at something like that and you think, That can’t be right. In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas. 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.”
Her conservative colleague Neil Gorsuch has also criticized universal injunctions. In his concurring opinion in Labrador v. Poe (2024), Gorsuch wrote:
What’s worse, universal injunction practice is almost by design a fast and furious business … Just do a little forum shopping for a willing judge and, at the outset of the case, you can win a decree barring the enforcement of a duly enacted law against anyone. Once that happens, the affected government (state or federal) will often understandably feel bound to seek immediate relief from one court and then the next, with the finish line in this Court. After all, if the government does not act promptly, it can expect a law that the people’s elected representatives have adopted as necessary and appropriate to their present circumstances will remain ineffectual for years on end.
In a pending decision in a case involving a Trump executive order about birthright citizenship, the Supreme Court may clarify or limit the power of lower federal courts to paralyze the executive branch. If the Supreme Court will not act, Congress may. Rep. Darrell Issa (R-CA) has proposed the No Rogue Rulings Act of 2025, which would limit district courts to injunctive relief only for the specific party seeking it. Sen. Charles Grassley (R-IA) has introduced similar legislation in the Senate. In situations in which great numbers of people are affected by a policy and seek to challenge it, an alternative to a universal injunction would be a class-action lawsuit, not a lawsuit seeking universal injunctive relief.
An alternative remedy would be to limit injunctions to the regions supervised by particular federal district courts or courts of appeals, instead of allowing them to apply to the whole country. According to the theory of “percolation,” the Supreme Court could watch from a distance as different federal courts tried different approaches, then weigh in to adopt one as the national standard. While percolation might be useful in some kinds of cases, in essential matters of presidential power or individual civil rights or congressional authority, this kind of judicial Balkanization of the United States would be a bad idea.
Other reformers would retain nationwide injunctions but limit the authority to issue them to certain federal courts: the federal circuits, or perhaps a single circuit court, like the District Court for the District of Columbia.
Perhaps the most promising proposal is to revive the system that existed between 1910 and 1976, when special three-judge district courts were required to hear constitutional challenges to federal or state laws. During the Progressive era, when conservative federal judges repeatedly struck down laws passed by progressive state legislatures, Congress passed a law in 1910 creating three-judge district courts that alone had the authority to hear lawsuits seeking injunctions against state laws. In 1937, Congress provided for three-judge district courts to monopolize the power to hear claims for injunctive relief against federal laws. Citing the legislative history of the 1937 act in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154-55 (1963), Justice Arthur J. Goldberg, writing on behalf of a Supreme Court majority, held that the 1937 act “requiring three judges to hear injunctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order.”
Unfortunately, in 1976, Congress eliminated three-judge district courts, except for congressional and state redistricting cases. The power to levy nationwide injunctions returned to all federal judges, who since then have grossly abused it.
A bill proposed in 2023 by Sen. Ron Wyden (D-OR) and Rep. Deborah Ross (D-NC), in response to Judge Kacsmaryk’s ultimately overruled mifepristone injunction, would assign cases with plaintiffs seeking nationwide injunctions to a three-judge panel. In addition to requiring certain cases filed in federal courts to be randomly assigned to a judge, to prevent “judge shopping,” the Fair Courts Act would prohibit a district court from granting a nationwide injunction that vacates a federal law or federal regulation or restrains federal officers or stays such relief, unless approved by a three-judge panel.
Between 1937 and 1976, the three-judge panel system prevented minor federal judges from paralyzing the federal government with universal injunctions. In today’s polarized political environments, it is conceivable that a revived three-judge system could be abused as a weapon of partisan lawfare. But the 1937 act and the earlier 1910 legislation succeeded in preventing lesser federal judges from running amok. A 21st-century version is worth a try.
