National Injunctions

[task0778]

In recent years we are seeing a growing frequency where individual federal judges are issuing national injunctions—that is, using regional cases to make national policy from the bench. What was once a rare legal tactic has now become a routine effort by lower court judges to stop President Trump’s agenda in its tracks. In just over one year in office, President Trump has been subject to 22 national injunctions—more than any other president. This increase is a significant new development in our political system. The power of the over 800 federal district-court judges to control national policy can and should be moderated by Congress before the judiciary makes a regular habit of usurping the functions of the executive branch.

Courts can certainly disagree with one another. Indeed, the system is set up so that they do. We have seen it before, where different judges weigh in on a subject/issue before it is considered by the Supreme Court. But when a single lower court issues an order that controls policy for the entire nation, it prevents the resolution of cases in other parts of the country. This, in turn, reduces dissent, which decreases the fact-finding and consideration that is so important to appellate courts deciding important legal questions. In short, it diminishes the intellectual scope of the entire justice system.

Beyond the disruptions caused by local courts’ injunctions claiming national effect lies a constitutional issue. Laws are supposed to be made and carried out by the legislative and executive branches, which are democratically accountable. When unelected, life-tenured federal judges actively interfere with those functions, the balance of power between the democratic branches (the legislative and the executive) and the autocratic branch (the judiciary) risks being thrown dangerously out of balance. While we have accepted that the Supreme Court can review the constitutionality of legislative and executive actions, the recent increase in nationwide injunctions has expanded this principle to substitute the judiciary for the executive in carrying out routine government functions. The abuse of national injunctions represents an attempt by the judiciary to claim for itself a policy-making role that it should not have. IMHO, it is incumbent upon the policy-making branches to take that power back.

One idea, proposed by Rep. Gary Palmer (R-Ala.), seeks to limit the practice of “forum-shopping”—where those seeking to challenge a president’s agenda “shop” for a court they believe would provide the most favorable judgment, in this case, a national injunction. Forum shoppers have largely been successful in their choices. There’s a reason, for example, that many of the national injunctions have emerged from the liberally minded 9th circuit. Palmer’s proposal would remove the incentive to forum-shop by requiring challenges against the executive to be heard only in District of Columbia, thereby limiting the ability of challengers to simply select a jurisdiction favorable to its side.

Or, Congress could deny the ability to order national injunctions in the 1st place by lower court federal judges. Such a ruling would be automatically suspended until an appeal process takes place. Such remedies are not only necessary but also appropriate considering the district courts are a creation of Congress. Article III of the Constitution gives Congress express authority to “ordain and establish” the lower courts, which it did with the Evarts Act of 1891.

Do we really want to give such power to one lower court federal judge? The concept of checks and balances calls for such power to be dispersed. The government can already request an intermediate appeal of a district court injunction to a three-judge circuit-court panel. However, such appeals are construed very narrowly, and the injunction and the damage it does can remain in place during the appeal. Overturning a major national policy set by the democratically elected officers of the nation deserves a full fresh look by three more judges, rather than being the decision of one lone judge.

This should concern Democrats as well as Republicans. While Democratic judges attacking the Trump administration have far outpaced the number of nationwide injunctions issued against the Obama administration, several were nonetheless issued against important Obama programs. Now that the floodgates have been broken open, it is highly likely that nationwide injunctions will become a regular weapon against the next Democratic president. Do we really want to go down that road?

 

[candycorn]

In recent years we are seeing a growing frequency where individual federal judges are issuing national injunctions—that is, using regional cases to make national policy from the bench. What was once a rare legal tactic has now become a routine effort by lower court judges to stop President Trump’s agenda in its tracks. In just over one year in office, President Trump has been subject to 22 national injunctions—more than any other president. This increase is a significant new development in our political system. The power of the over 800 federal district-court judges to control national policy can and should be moderated by Congress before the judiciary makes a regular habit of usurping the functions of the executive branch.

Courts can certainly disagree with one another. Indeed, the system is set up so that they do. We have seen it before, where different judges weigh in on a subject/issue before it is considered by the Supreme Court. But when a single lower court issues an order that controls policy for the entire nation, it prevents the resolution of cases in other parts of the country. This, in turn, reduces dissent, which decreases the fact-finding and consideration that is so important to appellate courts deciding important legal questions. In short, it diminishes the intellectual scope of the entire justice system.

Beyond the disruptions caused by local courts’ injunctions claiming national effect lies a constitutional issue. Laws are supposed to be made and carried out by the legislative and executive branches, which are democratically accountable. When unelected, life-tenured federal judges actively interfere with those functions, the balance of power between the democratic branches (the legislative and the executive) and the autocratic branch (the judiciary) risks being thrown dangerously out of balance. While we have accepted that the Supreme Court can review the constitutionality of legislative and executive actions, the recent increase in nationwide injunctions has expanded this principle to substitute the judiciary for the executive in carrying out routine government functions. The abuse of national injunctions represents an attempt by the judiciary to claim for itself a policy-making role that it should not have. IMHO, it is incumbent upon the policy-making branches to take that power back.

One idea, proposed by Rep. Gary Palmer (R-Ala.), seeks to limit the practice of “forum-shopping”—where those seeking to challenge a president’s agenda “shop” for a court they believe would provide the most favorable judgment, in this case, a national injunction. Forum shoppers have largely been successful in their choices. There’s a reason, for example, that many of the national injunctions have emerged from the liberally minded 9th circuit. Palmer’s proposal would remove the incentive to forum-shop by requiring challenges against the executive to be heard only in District of Columbia, thereby limiting the ability of challengers to simply select a jurisdiction favorable to its side.

Or, Congress could deny the ability to order national injunctions in the 1st place by lower court federal judges. Such a ruling would be automatically suspended until an appeal process takes place. Such remedies are not only necessary but also appropriate considering the district courts are a creation of Congress. Article III of the Constitution gives Congress express authority to “ordain and establish” the lower courts, which it did with the Evarts Act of 1891.

Do we really want to give such power to one lower court federal judge? The concept of checks and balances calls for such power to be dispersed. The government can already request an intermediate appeal of a district court injunction to a three-judge circuit-court panel. However, such appeals are construed very narrowly, and the injunction and the damage it does can remain in place during the appeal. Overturning a major national policy set by the democratically elected officers of the nation deserves a full fresh look by three more judges, rather than being the decision of one lone judge.

This should concern Democrats as well as Republicans. While Democratic judges attacking the Trump administration have far outpaced the number of nationwide injunctions issued against the Obama administration, several were nonetheless issued against important Obama programs. Now that the floodgates have been broken open, it is highly likely that nationwide injunctions will become a regular weapon against the next Democratic president. Do we really want to go down that road?

Interesting.

On one hand, I don't want to create another roundabout of rulings. On the other, I agree that the "forum shopping" for lack of a better term is a practice that will only lead to more division and mis-trust.

I think what we could all agree on (or at least I hope) is that it emphasizes that the bullshit McConnell and the Senate pulled in holding the supreme court vacancy for multiple months should never happen again. SCOTUS should be available to hear these appeals quickly and we need it to be fully staffed.

 

[task0778]

Filling SCOTUS vacancies is a separate issue from national injunctions, nice try though at trying to link them together. SCOTUS can still hear these and any other cases with 8 justices if necessary. FWIW, I think there was enough time for the Senate to hold hearings to fill Scalia's seat back then, but I don't think they weren't going to confirm Obama's appointee anyway. Maybe they would've found a bunch of females to accuse the guy of sexual misconduct 35 years ago, like your guys did to Kavanaugh. And waited until the last possible minute to bring the accusation to light. If the Dems are going to use bullshit tactics like that, then you should expect the same thing when it's your side who is pushing a SCOTUS nominee in the future.

Politics is a very nasty business these days, with not a lot of honor and integrity to be found. BUT - in the case of national injunctions, it's really a bad idea to allow one federal judge the ability to halt an executive order or action all by himself, until a higher court lifts the injunction. What goes around, comes around; the Dems are doing it to Trump now, but the Repubs will do the same thing to the next Dem president. Taint right, but don't be playing the high moral ground card here.