As NBC News reported on November 20, 2018, the White House blasted Judge Jon Tigar of the U.S. District Court for the Northern District of California following his issuance of a nationwide temporary restraining order of a rule that would have rendered aliens entering illegally ineligible for asylum in East Bay Sanctuary Covenant v. Trump. According to The Hill, the president stated, "You go to the Ninth Circuit and it's a disgrace, and I'm going to put in a major complaint," although the site noted that the president did not elaborate on what action he would take. One action that the president could take would be that suggested by Justice Thomas in Trump v. Hawaii: challenging the legality of such universal injunctions.
As Justice Thomas noted in that case, which involved a presidential proclamation barring the entry of nationals from certain countries of concern:
The District Court imposed an injunction that barred the Government from enforcing the President's Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called "universal" or "nationwide" injunctions—have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to 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.
Indeed, it is notable that East Bay Sanctuary Covenant, which as noted challenged a rule barring aliens entering illegally along the border from eligibility for asylum, was filed in the Northern District of California. Judge Tigar sits in the Philip Burton Federal Building at 450 Golden Gate Ave. in San Francisco, Calif.
That court is located 518 miles from Tijuana, Baja California (probably the closest border town), according to Google Maps, a nine-plus hour drive on a good day (which rarely exist in the Bay Area). There are literally two other federal district courts (the U.S. District Court for the Central District of California and the U.S. District Court for the Southern District of California) between 450 Golden Gate Ave. and the border. And yet, the case ended up in Judge Tigar's courtroom. I am not saying that this is forum shopping, but a reasonable argument could be made that it is.
The legal questions presented in that order will likely not "percolate" through the federal courts. According to CNN, Secretary of Homeland Security Kirstjen Nielsen has vowed to appeal that decision "as quickly as possible." Such an appeal would be taken to the Court of Appeals for the Ninth Circuit, which has jurisdiction over the U.S. District Court for the Northern District of California. If history is a guide, the Ninth Circuit will likely deny that appeal (a 2010 article from the New York Times is captioned "'Liberal' Reputation Precedes Ninth Circuit Court" for good reason) and that case will likely quickly make its way to the Supreme Court.
This process is not a "percolation," but rather the Aero Press of justice through the legal system (even though months will pass before a final decision is issued). All from a case that took 10 days from the filing of the lawsuit by the plaintiffs to the filing of the 37-page order by the judge.
And yes, Judge Tigar's order will create a national emergency. It is difficult to imagine that aliens currently waiting along the border for appointments at ports of entry will not take advantage of that order to enter illegally to make credible-fear claims. Moreover, the issuance of orders blocking the decisions of the cabinet officials of a Republican president unpopular with the vast majority of liberals by judges appointed by Democratic presidents causes many (particular on the right) to question the fundamental fairness of our judicial system. And, to quote Secretary Nielsen:
Let me be clear: This court, from a chamber in San Francisco, has replaced the President's judgment with regard to the fully delegated authority to determine what is a true national security threat to our nation's sovereignty. This is a dangerous ruling . . . .
Respectfully, there are more reasons to bar nationwide injunctions than there are to maintain them. As Justice Thomas notes in Hawaii: "No statute expressly grants district courts the power to issue universal injunctions." He explained, moreover:
Universal injunctions . . . are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.
Justice Thomas concluded, after surveying historical precedent:
No persuasive defense has yet been offered for the practice. Defenders of these injunctions contend that they ensure that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch. . . . But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. They at best "boi[l] down to a policy judgment" about how powers ought to be allocated among our three branches of government. But the people already made that choice when they ratified the Constitution.
Justice Thomas has laid out a blueprint for the president to follow in arguing that nationwide injunctions should be ended. All that is necessary as for the Department of Justice to follow it.