Rein in politicized judges and their injunctions – Washington Examiner
Federal district judges aren’t emperors for the whole United States. Congress and the Supreme Court should both remind them of that reality.
By issuing putatively national injunctions, Attorney General William Barr said in a May 21 speech to the American Law Institute: “One judge can, in effect, cancel the policy with the stroke of the pen. No official in the United States government [rightly] can exercise that kind of nationwide power, with the sole exception of the president. And the Constitution subjects him to nationwide election, among other constitutional checks, as a prerequisite to wielding that power.”
The subject arises because, on issue after issue, liberal district judges have blocked President Trump’s executive orders or rules promulgated by his administration. The most prominent example occurred when Trump ordered an end to the Deferred Action for Childhood Arrivals immigration program. Even though DACA was created out of thin air by an executive memorandum by President Barack Obama, three separate district judges ruled that Trump could not undo it using the same presidential power. All three said their orders apply nationwide.
Other judges have issued similar injunctions against Trump’s “travel ban,” against his effort to delay a sweeping “clean water rule” issued by the Obama administration, and against an order of his intended to protect religious freedom. (The Supreme Court reversed the injunction against the travel ban.) In all, Barr said, district judges have issued at least 37 nationwide injunctions against the Trump administration in barely more than two years. They issued such injunctions only 27 times in the entire 20th century, he said.
The Trump administration has been hounded by such injunctions more than any other, but the threat applies across ideological lines. A trial judge in Texas, for example, blocked an ill-advised Obama administration directive that public schools allow students to use bathrooms corresponding with their chosen “gender identity,” not their biological sex.
Vice President Mike Pence says the Trump administration is searching for a solid case in which to argue that the Supreme Court should forbid or severely restrict district court powers to issue such injunctions. He and Barr are on the right track. As Barr said, “Nationwide injunctions undermine the democratic process, depart from history and tradition, violate constitutional principles, and impede sound judicial administration.”
A New York University Law Review paper in October 2017 listed many practical problems with such injunctions, and its key point was that they violate constitutional principles, undermining “the structural design of the federal courts by allowing a single lower court to make nationwide law.”
The Supreme Court should indeed stop inferior courts arrogating unconstitutional power to themselves. Congress can do so as well, through the Constitution’s Article III, Section 2, paragraph 2, which specifically allows it to regulate the jurisdiction of federal courts.
Both the Supreme Court and Congress should act as Barr and Pence suggest to rein in rogue judges who are undermining the Constitution and our democracy. Future presidents and Congresses of both parties will benefit from knowing their work cannot be negated by the whim of a single politicized judge.