The Supreme Court has once again agreed to hear a case that strikes at the heart of the constitutional separation of powers. In Trump v. CASA – heard Thursday, May 15, in oral arguments – the justices will decide “Whether the Supreme Court should stay the district court's nationwide preliminary injunctions on the Trump administration’s Jan. 20 executive order ending birthright citizenship except as to the individual plaintiffs and identified members of the organizational plaintiffs or states.”
But beneath the surface of immigration law lies a far more consequential issue: the abuse of nationwide injunctions and the creeping threat of judicial supremacy.
For years, federal judges have increasingly assumed a power that the Constitution never gave them: the authority to impose national policies with the stroke of a pen. This case is emblematic of that problem. A single federal district judge (actually in three different instances, combined into this case) issued a nationwide injunction blocking a Department of Homeland Security rule nationwide, even though that judge has jurisdiction only within a specific geographic district.
This was not merely an exercise of judicial review; it was an assertion of judicial policymaking.
The problem with nationwide injunctions
Nationwide injunctions – orders that block a law or executive action across the entire country – were virtually unheard of in our legal system until recently. Historically, courts confined their rulings to the parties before them or, at most, to their jurisdiction. The explosion of nationwide injunctions is a modern phenomenon, often used as a tool of ideological resistance rather than impartial adjudication.
These sweeping orders invite "forum shopping," where activists pick the judge most likely to rule in their favor and then tie the hands of the entire executive branch based on that one ruling. That’s not how our constitutional system is supposed to work.
As Justice Clarence Thomas rightly warned in Trump v. Hawaii (2018), nationwide injunctions “take a toll on the federal court system – preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”
In short, they replace legal clarity with judicial chaos. Thomas reiterated that position in Thursday’s arguments, wryly observing that America survived until the 1960s without nationwide injunctions.
Judicial supremacy is not constitutional supremacy
Too many in the legal and political classes have conflated the idea of constitutional supremacy with judicial supremacy. The Constitution is indeed the supreme law of the land – but it does not make the judiciary supreme over the other branches. As Alexander Hamilton explained in Federalist No. 78, the judiciary has “neither force nor will, but merely judgment.”
That judgment was never intended to substitute for the political judgment of elected leaders – only confine them to their limited powers under the Constitution. Yet today, courts routinely override not only executive policy decisions, but the constitutional authority of presidents to enforce the law as they see fit. The very idea that a district judge in Maryland can singlehandedly nullify a policy enacted by a duly elected president and his administration is an affront to both democracy and constitutional order.
Separation of powers at risk
At the heart of Trump v. CASA is not just a dispute over immigration law, but a fundamental test of whether we still believe in the separation of powers and demand constitutional fidelity. The executive branch was created to enforce the laws, and the president – by virtue of his election and constitutional role – is vested with all executive powers and entrusted with discretion over how that enforcement looks in practice. When courts freeze that discretion with nationwide injunctions, they effectively usurp the executive function.
This violates not only Article II of the Constitution but also undermines the very framework the Framers put in place to prevent any one branch from becoming supreme. Judicial activism under the guise of injunctions turns judges into de facto policymakers, allowing them to impose their preferences not just on litigants but on the entire nation.
This is not how checks and balances work. Courts are supposed to check unconstitutional acts, not create national policies from the bench. When unelected judges block executive decisions wholesale, they are not acting as neutral arbiters but as super-legislators.
Time for the Supreme Court to rein it in
The Supreme Court has a chance in Trump v. CASA to correct the course. It should clarify that lower courts do not have the authority to issue nationwide injunctions, and it should reaffirm that constitutional checks and balances mean mutual respect and judicial restraint – not judicial domination.
Presidents, whether Republican or Democrat, must be able to execute the laws without being undermined by activist courts. Judicial review does not mean judicial rule. If we want to preserve the Constitution and restore accountability to our system, we must say no to nationwide injunctions and no to judicial supremacy.
The Founders never intended for one unelected judge to dictate policy for the entire country. It’s time the Supreme Court made that clear – before the balance of power is lost entirely.
(Editor's Note: This article was posted first on American Family News site HERE.)
