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A growing chorus on the right is arguing that federal district court judges are acting in a biased or illegitimate manner because judges mostly appointed by Democratic presidents have issued an unprecedented number of universal injunctions against Trump’s executive orders and initiatives in a very short time frame. The bias argument is receiving rhetorical assists from some Democrats. “The good news here is, we did put 235 judges, progressive judges, judges not under the control of Trump, last year on the bench, and they are ruling against Trump time after time after time,” Senate Minority Leader Chuck Schumer said a few days ago.
There is something to the Trump administration’s concerns about universal injunctions. The bias concerns too might be credible, but they must be discounted by a number of factors, including that Trump 2.0 has issued an unprecedented number of executive orders and memoranda—and an unprecedented number with legal problems of various sorts. In short, as I explain below, the issue is complicated.
This complexity does not, in my view, justify the harsh and threatening rhetoric coming from the White House and some members of Congress. These are contestable legal issues, not impeachable offenses or a basis for removal on some other ground. As I will explain, Republican-appointed judges have issued universal injunctions against programs of presidents of both parties, and Republicans cheered when these judges shut down president Biden’s programs on a universal basis.
Universal Injunctions
When a district court issues a universal injunction against a government order or initiative, the injunction binds the government with respect to non-parties and thus shuts down the order or initiative everywhere. “Universal injunctions have reached epidemic proportions since the start of the current Administration,” proclaimed Acting Solicitor General Sarah Harris in a recent stay application in the Supreme Court. “District courts have issued more universal injunctions and TROs [temporary restraining orders] during February 2025 alone than through the first three years of the Biden Administration.”
The Biden administration also thought universal injunctions were illegitimate. Last October, its Justice Department asked the Supreme Court to invalidate a lower court universal injunction against the Department of Education. Quoting an opinion by Justice Thomas (and citing one by Justice Gorsuch), Solicitor General Elizabeth Prelogar argued that “universal remedies are ‘inconsistent with longstanding limits on equitable relief and the power of Article III courts’ and impose a severe ‘toll on the federal court system.’”
Prelogar added that universal relief “empowers a single district court to pretermit meaningful litigation on the same issues in other courts,” and “operates asymmetrically: the government must prevail in every suit to keep its policy in force, but plaintiffs can derail a federal program nationwide with just a single lower-court victory.”
This is the basic legal argument that underlies the Trump administration’s complaints about universal injunctions—stripped, of course, of the biting rhetoric. If universal injunctions are unlawful, then federal judges should not issue them even in the face of illegal action by the Trump administration. (I have not done a thorough analysis, but it is possible that a good number of the injunctions against the Trump administration are not for universal relief.)
There is another side to the argument, of course: that universal injunctions are consistent with Article III; that they are sometimes needed to bring complete relief to plaintiffs; that nonparties warrant protection against irreparable injury; and that Section 705 of the Administrative Procedure Act, when applicable, provides an independent legal basis for relief.
The first point I wish to make is simply that Trump administration arguments against single federal judges enjoining programs on a universal basis are entirely legitimate. The validity of universal injunctions will ultimately be resolved in the Supreme Court (as Prelogar urged) or in Congress (where several Republicans have promised to bring legislation).
Universal relief is not the only procedural complaint about judges arresting the Trump 2.0 program. Another is that district court judges have been blocking the programs via administrative stays. An administrative stay empowers district courts to stop government action on a short-term basis at the outset of a case without bothering to deal with the traditional factors for injunctive relief. The practice of administrative stays against executive action, reports Christopher Moore, was unheard of before 2022.
Bias
Now I turn to the charge that the lower federal courts are biased against the Trump administration in the issuance of universal injunctions.
One place to begin is with an article on universal injunctions in the Harvard Law Review (HLR) in April 2024. The article analyzed universal injunctions from 1963-2023 based on two datasets. (The study notes methodological issues with the numbers, which I will ignore for present purposes because I do not think they materially affect the analysis below.)
The HLR study reports that federal courts issued 127 nationwide injunctions during the 60 year period. Just over half, 64, were issued in Trump’s first term. In its first three years the Biden administration received 14 nationwide injunctions—a number that, but for Trump 1.0, was the largest for any previous presidential term. By themselves, the Trump 1.0 v. Biden figures do not reveal much. Trump 1.0 issued more executive orders than Biden during his tenure (220 v. 162), and the legal soundness of Trump orders on balance might have been lower than Biden’s.
A more striking statistic from the HLR is that 92.2% of the injunctions against Trump 1.0 came from Democratic-appointed judges, and 100% of the injunctions against Biden came from Republican-appointed judges. These numbers may well suggest some sort of bias. But even here we would need more information to reach firm conclusions about the relevant bias or its cause. For example, how did plaintiff forum shopping for judges not appointed by the party in presidential office inform these numbers? What was the political composition of the judges who denied nationwide injunctive relief when asked? Was the skew identified in the HLR caused by judges making legal errors or executive branches issuing illegal orders. How do these factors interrelate?
Drawing conclusions about the injunctions in Trump 2.0 is even harder at this early stage. As best I can tell there have been injunctions in about 40 cases against the administration (including some non-universal injunctions). Many are TROs, which were excluded from the HLR study. Most of the district court injunctions have not yet run the gamut of emergency orders relief on appeal so we do not yet know how many of the 40 might be stayed or adjusted in some other way. It is also worth noting—in light of the HLR study, and for those who like to think this way—that at least eight of the injunctions against the Trump administration have been issued by Republican-appointed district court judges (including one by a Trump-appointed judge).
In assessing the number of injunctions against Trump, it is also relevant that in his first two months he has issued approximately 96 executive orders, which is much more than any recent presidency during its first two months (and indeed, more executive orders than any president, including Trump 1.0, has issued in its entire first year). President Biden, for example, issued 37 executive orders in his first two months; Trump 1.0 issued 17 during this period.
Moreover, by a number of measures, Trump 2.0 has been careless about law compliance. There is pretty good evidence that the administration is not running its executive orders by the Justice Department for form and legality review—indeed, a few of the orders are unlawful under extant Justice Department legal opinions.
We also know that the administration is enforcing a strict regime of adherence to the president’s word and will on what the law is for the executive branch, and that all contrary advice is discouraged. This is technically consistent with Article II but irrelevant to the legality of presidential action in Article III courts. And there is zero reason to believe—and every reason not to believe—that Donald Trump is doing a good job of ensuring that his executive orders are in fact lawful.
And then there is the bad lawyering by DOJ in federal court. The Department is clearly understaffed to argue the scores of cases against it due to firings, reassignments, and resignations. Much of the lawyering in important cases seems to be crafted by the top layer of political appointees rather than by the more seasoned career attorneys. The lawyers who end up in court often do not have answers to the questions asked by judges, or have made an unusual number of mistakes, due to their inability to get firm or accurate answers out of the Department or elsewhere in the executive branch.
“During fast-moving proceedings, DOJ lawyers at times have struggled on questions of law and fact about what Trump and his lieutenants are actually doing, drawing frustration and rebukes from judges across the country,” reported the Wall Street Journal. “In some cases, lawyers later submitted corrections to what they have told the courts.” Such corrections “are unusual, but they do happen,” Jody Hunt, the head of the civil division in Trump 1.0, told The Journal. “For it to happen so frequently in a short span is emblematic of the rush to which the administration has put together and issued these executive orders the Justice Department has to defend,” he said.
Conclusion
I have argued that (i) the administration has a legitimate complaint about universal injunctions and administrative stays that should ultimately be resolved by the Supreme Court or Congress; (ii) there is a pattern of mostly Democrat-appointed district court judges enjoining Trump initiatives, just as there was a similar (and indeed more extreme, in terms of percentages) mirrored pattern during the Biden years; but (iii) to know whether the 2025 pattern reflects real or systemic bias we would need to assess a whole slew of issues, including the influence of plaintiff forum shopping, the profile of judges who denied relief, and the abundant evidence that Trump 2.0 is not taking legal compliance seriously.
I think this is basically as much as can be said at a general level about what is going on with injunctive relief in Trump’s early second term. To say more one must dive down into individual cases and assess the merits, which I obviously cannot do here.