Expert: Supreme Court ‘failed to ask the hardest question’

Harvard Law Professor Alan Dershowitz said on Newsmax Thursday that the Supreme Court “failed to ask the hardest question” in a case that could reshape how nationwide injunctions are handled by the federal judiciary.

The Supreme Court heard arguments Thursday on whether to rein in district judges’ use of universal injunctions, a tactic increasingly used by left-wing plaintiffs to block Trump’s executive actions and undermine the separation of powers. During an appearance on “The Record with Greta Van Susteren,” Dershowitz said that the Court overlooked a central dilemma of what happens when two district judges reach opposite conclusions about the same executive action.

“They failed to ask the hardest question. The hardest question is ‘What if you have one thing, the executive order, unconstitutional, and I’m enjoining it, and another judge in the next state saying, no, no, no, it’s perfectly OK, and you should continue to use it?’ They really didn’t address that question, because that’s what really will happen,” Dershowitz said.

Dershowitz said that in the case currently before the Court, all four lower court judges ruled the executive action in question unconstitutional. But he dismissed the consistency as a product of judge shopping.

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“In this case, all four judges ruled that it was unconstitutional. That’s because, of course, the plaintiffs’ judge shopped and went to judges who they thought would give them favorable rulings,” Dershowitz said. “But if one judge combined everybody, you’re going to get many situations where you have one judge going one way and one the other way, and the court really didn’t deal with that. I think the arguments were very interesting, and the justices really were very well prepared for this.”

Dershowitz called for a legislative solution.

“I don’t think we’re going to see a definitive ruling one way or the other on this, because either ruling would create real chaos. If there was a ruling that says one judge can bind, then you’re going to get judges with different interpretations of which one is binding,” Dershowitz added. “If you’re going to say that judges can’t bind, then it’s going to take a long time to get the case to the Supreme Court. The answer is legislative. Congress should pass a statute creating a new court like the FISA Court, five judges, and only they can issue nationwide injunctions.”

The Supreme Court paused the Trump administration’s attempt to expedite deportations of Tren de Aragua (TdA) members under the Alien Enemies Act of 1798, ruling in April that those targeted for removal must be allowed to contest their deportation in court. The decision temporarily blocked enforcement of Trump’s executive order, which aimed to use the 18th-century statute to remove gang-affiliated Venezuelans.

President Donald Trump signed executive orders labeling TdA, MS-13, and several Mexican drug cartels as foreign terrorist organizations. Trump formally invoked the Alien Enemies Act on March 15 to accelerate the removal of TdA operatives, citing national security threats.

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