“Too often, we let politics overcome principle. But the truth is that we all know this isn’t how government and the judiciary should operate.”
Prepared Opening Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
“Rule by District Judges II: Exploring Legislative Solutions to the Bipartisan Problem of Universal Injunctions”
Wednesday, April 2, 2025
“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.”
Those aren’t my words, that’s what Justice Kagan said during a speech in 2022. I agree with her.
Our hearing today is titled, “Rule by District Judges II: Exploring Legislative Solutions to the Bipartisan Problem of Universal Injunctions.” I hope we can continue the discussion from our hearing on the same topic in 2020 and focus on legislative solutions.
For a number of years, but particularly in the last few months, we’ve seen increasingly sweeping orders from individual district judges that dictate national policy. These orders, called “universal injunctions,” direct the government to take – or not take – action with respect to persons who aren’t before the court.
Although our Founders saw an important role for the judiciary, they didn’t design a system that made judges national policymakers. They adopted a Constitution that strictly limits courts to exercising power over “cases” or “controversies.”
Sweeping universal injunctions defy nearly two centuries of historic precedent. For the first 175 years of our history, universal injunctions were unheard of. They’ve been extremely rare until the last decade. Now, we can barely read the news without learning of another district judge issuing an order that covers everyone in the country.
It’s one thing for a district court to offer relief to the parties before it. That’s what a judge can and should do. A judge has authority to resolve a case or controversy, and sometimes, that’ll include holding that a statute or executive action is unlawful.
It’s another thing altogether for a single judge to order the government to act with respect to people who aren’t even before the court. That reaches far beyond the legitimate authority of the court, and becomes policymaking. This is something none of us – Democratic or Republican – should want judges to do.
Right now, there are more than 600 active district judges. [There are] more than 1,000, if you count senior judges. Any one of them can effectively veto national policy. In one sense, district judges wield more power than any Supreme Court Justice – who must vote with their colleagues before stopping or compelling national government action.
This creates a strong incentive for forum shopping. According to a 2024 Harvard Law Review study, nearly all universal injunctions against the first Trump administration and the Biden administration were issued by judges appointed by the opposite political party. This places tremendous strain on the judicial system.
Universal injunctions are also unconstitutional. Article III of the Constitution tasks the judicial branch with deciding “cases” or “controversies.” The Supreme Court has long required judges to engage in detailed analysis to ensure they have authority over a case. They must determine that a party before them has been injured, that the injury is traceable to the defendant’s conduct, and that the court can do something to remedy it.
Now, judges routinely ignore these constitutional limits and issue orders directing government action for the entire country.
In February, a district judge issued an order requiring $2 billion in USAID funding to be paid within 36 hours—the vast majority to people who never even sued. The Supreme Court had to instruct the district court to narrow its ruling significantly.
And on Monday, a District Court in California issued an order in a case involving seven Venezuelan plaintiffs and an association that advocates for them. Instead of just deciding the case before him, the judge halted the policy for approximately 350,000 Venezuelans under the Temporary Protected Status program. The district judge had no authority over people who weren’t before the court, but single-handedly vetoed a policy that Americans specifically elected President Trump to enact.
Some people may ask, if universal injunctions are eliminated, how can plaintiffs get relief? Especially in cases where it’s hard to represent every person affected by a law or order.
The Federal Rules of Civil Procedure provide a solution—the class action. This is a powerful legal tool to offer comprehensive relief, and it also contains protections to preserve the rights of parties that are represented in this unusual way. Universal injunctions short-cut all of that.
Eliminating universal injunctions still preserves the important role of the judiciary in our system of checks and balances. Class actions remain intact. And judges retain their awesome power to protect litigants before them from unlawful action. But when a single judge can override the political branches to set national policy, the checks and balances in our country are thrown off.
We should instead return to the framework established under the Constitution. District courts decide the case before them, and the appellate courts set precedent for all the courts below them. That’s the appropriate check on the other co-equal branches of government. Universal injunctions turn the whole thing on its head.
Most of us in this room have, at various times, supported or opposed universal injunctions. My fellow Republicans and I sometimes like them – when there’s a Democrat president! And my Democratic colleagues probably like them right now, even though they criticized them a few months ago under President Biden. Too often, we let politics overcome principle. But the truth is that we all know this isn’t how government and the judiciary should operate.
It’s past the time to address this issue. The Supreme Court can and should fix this problem. Unfortunately, they’ve sat on their hands. If they won’t act, Congress must.
I’ve proposed legislation to fix this problem. I think it’s a good solution because, like all good compromises, it probably leaves everyone a little unhappy.
We all have to agree to give up the universal injunction as a weapon against policies we disagree with. The damage it causes to the judicial system and to our democracy is too great.
I hope today we can have a productive discussion about how to solve a problem that has plagued and frustrated Democratic and Republican administrations alike.
I would now like to introduce our two majority witnesses today, both of whom have previously testified before this Committee on this very topic.
Professor Samuel Bray is the John N. Matthew Professor of Law at Notre Dame. He’s a leading expert on the law of remedies and the law of equity, and he’s been cited by many Supreme Court Justices, including Justices Thomas, Gorsuch, Kavanaugh and Jackson. He’s also been cited by both the Trump and Biden administrations.
Professor Bray has written extensively on the topic of universal injunctions including his Harvard Law article, “Multiple Chancellors: Reforming the National Injunction.” Professor Bray is an elected member of the American Law Institute and is an adviser on the Restatement of Torts: Remedies.
Jesse Panuccio is a partner at Boies Schiller Flexner and co-leader of the firm’s appellate practice group.
He previously served as the Acting Associate Attorney General at the Department of Justice. Before that, he served as then-Governor Rick Scott’s general counsel. He’s also a member of the Administrative Conference of the United States.
I’m very interested in hearing both of your remarks today, and I now turn it over to Ranking Member Durbin for his opening statement and to introduce his witness.
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