There are almost 700 federal district court judges. I say “almost,” because while officially there are 677 of them, some retired judges have taken senior status and may sit from time to time on cases, so the figure is inexact on any given day. Since President Trump was sworn in for a second term, there has been an avalanche of cases seeking relief from executive actions. Last month alone, district court judges issued 15 temporary restraining orders. “That’s more nationwide injunctions than there were issued for the first three YEARS of the Biden Administration. District court judges are out of control.“    

A Temporary Restraining Order (TRO) is designed to maintain the status quo after a claim is made that there is an emergency requiring the court to maintain the matter in a holding pattern -- usually for 10-14 days -- until a hearing on the issue can be held. A TRO can be granted ex parte, that is with only the plaintiff being present and without a hearing on the issue at all. The plaintiff must show the likelihood of success on the merits of the claim and that the harm to him outweighs any potential harm to the opposing party. To get one, the plaintiff has to show the likelihood of irreparable injury if the court fails to act. After a hearing, the court may issue a Preliminary Injunction (PI) directing some action or continuing the initial restraint until a full trial on the matter is held. To obtain a PI that lasts throughout the course of litigation, the plaintiff must meet a higher standard of proof. “A TRO requires the applicant to show a substantial likelihood of success and immediate harm, while a preliminary injunction involves a more rigorous evaluation of the merits, balance of equities, and public interest.” 

There are 94 district courts and 12 federal courts of appeals, which hear and decide appeals from district courts. Generally, TROs are not appealable, but preliminary injunctions are. Some of the TROs issued against the administration read more like preliminary injunctions, and no matter how they are titled, if they do more than maintain the status quo for a short period, the appellate courts should step in and assert jurisdiction.

I agree with Bill Shipley: Most of these injunctions will not survive appeal. 

I think SCOTUS is going to end up staying several of these, take up a small number, and then issue a small number of decisions that will force District Judges to reconsider and rethink their rulings. But they are unlikely to take a lot of these cases up individually to decide them on the merits. They will rely on district judges to change their decisions, and the Appeals Courts to smack down those who don't.

In fact, one just did. 

Friday the Fourth Circuit smacked down a universal injunction. “On Friday, the United States Court of Appeals for the Fourth Circuit reversed the much-covered nationwide injunction imposed by U.S. District Judge Adam Abelson in Baltimore regarding ending federal support for diversity, equity, and inclusion (DEI) programs. The three-judge panel ruled that Judge Abelson had gone “too far” in seeking to enjoin the federal government across the country.

The Fourth Circuit recognized that the executive orders “could raise concerns” about First Amendment rights that might have to be addressed down the road. However, it found Abelson’s “sweeping block went too far.” It also pointed out that the orders were not nearly as unlimited and sweeping as suggested by the district court or the media.”

The more urgent question is, what right does a district court (which handles the matters in a designated geographic area) have to issue a nationwide injunction, and that matter is now being raised to the Supreme Court by the Administration in a case challenging the President’s order on birthright citizenship which district court judges in Maryland, Massachusetts, and Washington have blocked nationwide.

According to Benjamin Weingarten:

The Trump Administration is taking the fight to end universal injunctions to the Supreme Court. "...[T]he government comes to this Court with a 'modest' request: while the parties litigate weighty merits questions, the Court should 'restrict the scope' of multiple preliminary injunctions that 'purpor[t] to cover every person * * * in the country,' limiting those injunctions to parties actually within the courts' power.... Universal injunctions have reached epidemic proportions since the start of the current Administration. Courts have graduated from universal preliminary injunctions to universal temporary restraining orders, from universal equitable relief to universal monetary remedies, and from governing the whole Nation to governing the whole world." ..."This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched."

Justice Neil Gorsuch has been critical of them and the Harvard Law Review notes how this practice  politicizes the law.

Morley said a single judge's power to enter a nationwide injunction incentivizes "extreme forum shopping," in which plaintiffs strategically bring their case in a specific court before a judge who will be most favorable to their arguments.

"There are outlier judges on all sides," he said. "You can go to that outlier judge and are systematically having the most controversial, cutting-edge, hot-button constitutional issues being settled and resolved by the ideological outliers rather than a more representative cross section of the judiciary."

In fact, the examination of nationwide injunctions published in the Harvard Law Review found that 92% were entered by judges appointed by Democratic presidents during the Trump administration. For the Biden administration, that portion grew to 100% imposed by judges named to the federal bench by Republican presidents. 

"If you see that kind of pattern, it cannot help but call the judiciary into disrepute," said Nicholas Bagley, a law professor at the University of Michigan. "It doesn't look like they're applying the law in a clear way. It will erode the judiciary's legitimacy, no question about it."

Bagley, who testified before the Senate Judiciary Committee about these injunctions in 2020, pointed to one key factor behind their rise: Politics.

It’s clear that the curtain must fall on the notion that hundreds of unelected district court judges of often outlying political beliefs and of various levels of judicial temperament and legal ability should be permitted to act as Chief Executive.