The Will of the People and Nationwide Injunctions

President Trump and members of his administration have been hurling insults at federal judges whose opinions they dislike since early in his first administration. One particular condemnation, which has been used most frequently in immigration cases, is uniquely disquieting—the accusation that judges are not adhering to “the will of the people.” Among others, the American Bar Association has strongly objected to this admonition, saying: “Judges swear oaths to follow the law, not public opinion, or political chatter, or what someone contends is the will of the people.” The ABA believes these claims are intended to undermine the courts and the legal profession.

Invoking the “will of the people,” as an attack line against the judiciary comes from the idea, mostly found in autocracies, that the last election overrides any existing law that conflicts with the views of the winner. The Nazi government in Germany did not rewrite or repeal existing laws, it just ignored or overrode them in accordance with the will of the leader. This view is totally inconsistent with our concept of the Rule of Law.

These admonitions, however, have not stopped. On July 12, U.S. Central District of California Judge Maame E. Frimpong issued a restraining order against federal immigration raids that lacked reasonable suspicion. The court found that arrests based on race, accent, or location violated Fourth Amendment rights. The White House responded by saying that Judge Frimpong was “undermining the will of the American people.”

One of the problems with adhering to popular opinion (which forms the core of political populism) is that popular opinion can be a blade of grass that sways with the wind, ever-shifting, -sometimes on a dime. It may be based on breaking news, which may be misinformation (especially true with today’s social media) or a single charismatic leader who lacks character. Emotions of the moment can turn out to be a dangerous source for decision making. In comparison, the slow but thoughtful development of laws by legislatures and by the courts, each having an historical perspective (that the general population lacks) and a wider breadth of knowledge, yields a quilt which is woven from more reliable threads, a carefully constructed whole, called the Rule of Law.

Not only is the White House’s charge that judges are ignoring the will of the people inappropriately leveraging highly partisan pressure, based on our norms and culture, but the actual will of the people with respect to immigration, based on current polls, has shifted dramatically over the past year. It no longer supports the MAGA demand that judges adhere to their views. Gallup polls conducted in June show that the percentage of Americans who want a decrease in immigration has dropped from 55% to 30%. Sixty-two percent of Americans now disapprove of Trump’s handling of immigration, with 45% strongly disapproving and only 21% strongly approving. Significant changes in the views of Republicans, and to a lesser extent independents, are the major reason for the shift. Two out of three Republicans now say immigration is “a good thing,” in contrast to only 39% who said that a year ago; 80% of independents agree.

Interesting as well is that approval for providing a pathway to citizenship for children brought to the U.S. illegally has risen to 85%, including 71% of Republicans. These are the DACA kids, the Dreamers, who have now grown-up.

Today people appear to be much less concerned about border security, with most Americans no longer supporting further construction of the wall along the U.S.-Mexico border.  But the public is increasingly unhappy with the mass deportations now underway. The reasons for this shift may include Immigration and Custom Enforcement’s (ICE) aggressive enforcement, characterized by entry into courtrooms and other public buildings, forceable arrests, sometimes behind masks, the terrible conditions in many of the holding camps, the deportation to hidden and deplorable foreign prison facilities (from which they may never emerge, even if they never committed a crime), together with the administration’s general disregard for due process. So, when Attorney General Bondi, DHS Secretary Noem, White House Border Czar Homan, and others, demand that the courts follow the “will of the people” rather than the law, they are not just violating long-held judicial norms, they are totally off-base given the actual will of the American people currently. Labelling a judge as “rogue” is just another way this administration has of saying he or she is not in concert with the will of the people as embodied in President Trump and his administration. The administration, and particularly Trump himself, also have some other ways of saying they are not in concert. In March, Trump attacked Judge James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, calling him on social media a “Radical Left Lunatic of a Judge, a troublemaker and agitator. “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!” (The Senate confirmed Judge Boasberg by a vote of 96-0.) Federal judges say that words like these are leading to increasing amounts of harassment and to frightening threats of violence. 

Nationwide Injunctions

One area in which MAGA member critics have been strongest in decrying judges who ignore the “will of the people” is in the use of nationwide injunctions. These injunctions, issued by district court judges, halted the implementation of Trump administration programs that they found to be unconstitutional or otherwise illegal. They have been applied to policies with national impact such as denial of birthright citizenship and programs like the mass deportation of immigrants without due process or adherence to other controlling laws that are on the books. Such injunctions are a relatively recent phenomenon. There were almost none until Reagan became president. Then twelve were issued during the George W. Bush presidency and nineteen during Obama’s two terms. The number then jumped quite noticeably during Trump’s first term. He averaged approximately sixteen per year. During the Biden administration the number fell back. Just fourteen were counted during his first three years. Trump and his supporters praised the injunctions against the Biden administration, calling them “brilliant” and “great news,” but they turned 180 degrees when they started being issued against him during his second term.

Then, on June 27, 2025, the Supreme Court in Trump v. CASA, Inc. ruled that federal district court injunctions can only apply to the specific plaintiffs in a case and not nationwide to everyone that might be affected. So nationwide injunctions (except in rare circumstances) can no longer be used in immigration cases or other claims against the President for actions that have nationwide impact. But Justice Amy Coney Barrett in her opinion for the majority noted that class actions (which let people facing a common problem join together in a single lawsuit to obtain relief) may be available nationwide to all those in a certified class. Class actions are an established legal mechanism under the Federal Rules of Civil Procedure. In contrast, nationwide injunctions issued by district court judges were mostly blocked in this decision because the Court found such power was not granted in the Judiciary Act of 1789 or any act applicable to the powers of the lower federal courts since then. In addition no such powers were traditionally accorded to courts of equity at the time of the founding of the United States.

Less than a week later, on July 2, D.C. District Judge Randolph D. Moss enjoined (with a 14 day pause) a Trump proclamation that there has been an “invasion” on the border and invoking “emergency presidential powers” to deport migrants without allowing them to apply for any relief. The judge found that the administration was attempting to create “an alternative immigrations system.” As part of his ruling, he certified all asylum seekers “currently present in the United States” as a legal class action.  Trump administration officials immediately called Judge Moss a “rogue” judge.

Then on July 10, New Hampshire District Court Judge Normand Laplante certified another class action lawsuit against President Trump, challenging his executive order restricting birthright citizenship. Judge Laplante granted class action status and issued an injunction temporarily stopping Trump’s executive order from taking effect nationwide. The class certified will include individuals born on or after February 20, 2025, whose mother was unlawfully present in the U.S. and father was not a U.S. citizen or lawful permanent resident, or whose mother's presence was temporary and father was not a U.S. citizen or lawful permanent resident at the time of birth.

The quick action by these two district courts in certifying class actions suggests (strongly) that Trump’s win in the CASA case may turn out to be less significant than initially thought. Judge Laplante said he had "no difficulty" determining an injunction was appropriate for what he described as an executive order of "highly questionable constitutionality that would deny citizenship to many thousands of individuals."  A White House spokesman called the judge’s ruling “an obvious and unlawful attempt to circumvent the Supreme Court’s clear order against universal relief.” That statement is clearly untrue. Justice Barrett specifically noted that class actions are an alternative and gave claimants thirty days to pursue such an action, or other options.

The rule of law is one of the cornerstones of democracy. Maintaining it requires that there be well-crafted protections that are steadily guarded and applied when the need arises. There must be the means of preventing a popular president or prime minister from wrapping themselves in the then-current version of the “will of the people” and harnessing the combination so as to turn themselves into a king. Thomas Paine, in 1776 at the birth of the nation, advised in his pamphlet Common Sense that “in absolute governments the King is law . . . in free countries the law ought to be king.”

Attacks on Courts, Federal courts, Importance of the Courts, Judicial Independence, Rule of Law