One of the most concerning aspects of the Trump Presidency has been random judges deciding to dictate policy to the entire country with national injunctions. Even if you dislike the President, the idea that a judge in San Francisco can stop all asylum reforms, for example, based on clearly political reasons should bother you. It’s a complete subversion of how the system was designed to work.
The founders would have laughed at the idea of “judicial supremacy” and called it tyranny. They never intended for low-level judges to be able to dictate national, constitutionally supported policy. Slowly, though, over the course of hundreds of years, we’ve arrived at the point where national injunctions are being routinely abused simply to oppose Trump, while not being based in any sound aspect of law.
Finally, it appears someone is ready to do something about it.
Vice President Pence on Wednesday announced that the administration will challenge the ability of federal district court judges to issue nationwide injunctions that halt policies advocated by President Trump.
The administration’s move — aimed at pushing back at unfavorable decisions from lower courts across the country — would set the stage for a vast legal debate and battle over the role that national injunctions play in the courts.
This is long overdue.
The list of ridiculous decisions by lower court judges against Trump is massive. Instead of doing something about it, the Supreme Court has chosen to handle each piecemeal to this point. That’s led to a big backlog of cases the administration is likely to win but are stuck waiting for.
National injunctions (aside from decisions by the Supreme Court) were not even a thing until 150 years after the founding of the country. As Justice Clearance Thomas has pointed out, they appear to be in direct conflict with Article III.
Injunctions that prohibit the Executive Branch from applying a law or policy against anyone…have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.
I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.
There are a few avenues for the administration to get this before the Supreme Court. They could use an injunction already placed on a policy or start a new challenge questioning the veracity of the power starting in a lower court. Either way, this needs to happen.
The Supreme Court has been sitting on its hands on several big questions, mainly at the behest of Justice Roberts. Instead of having the guts to reign in lower courts they are continually having to overturn, Roberts has chosen to handle things piecemeal due to his philosophy of very narrow decision making. He needs to get over that and take this issue up. Rule one way or the other on whether lower courts can decide national policy based only on their whims.
The current system encourages judge shopping and allows clearly legal execution of power to be usurped by unelected judges. That can’t work long term and it’s dangerous to our governmental system.
This shouldn’t be a partisan issue. You can think Trump is the worst President in history, but no one with any care for constitutional governance should be supportive of what some of these lower court judges are doing. It’s time for the Supreme Court to do its job and make a decision on what’s happening.