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In the American justice system, judges have two fundamental duties. The first is to interpret the Constitution, and police the structures of government. The second is to assess statutory laws—specifically their construction and application—against what the Constitution allows.
Nowhere in the solemn oath they take are judges tasked with casting value judgments on the outcome of a law, the character of its author, or expressing an opinion as to what the law should be. The charge of a judge is to neutrally and carefully interpret the plain text of the law—no more, no less.
Yet, in the year since President Trump took office, no group has been more effective in stymieing his agenda. Regional federal courts across the country have single-handedly blocked Trump’s efforts on issues such as Obamacare’s contraceptive mandate, the Deferred Action for Childhood Arrivals (DACA) program, the policy regarding openly transgender soldiers in the military, and overly burdensome environmental regulations. In so doing, these judges have distorted their jurisprudence to meet the needs of their political ends and imposed their preferred outcomes on the populace at large, over and against their apparent electoral preference.
In some cases, they have simply ignored the constitutional and statutory authority granted to the president. In others, they have made the president’s tweets, rather than the text of the executive order or law they are considering, the basis for their rulings.
In all of these cases, their primary weapon has been an extreme legal remedy known as the national injunction. An injunction acts as a legal prohibition; essentially it is the court rendering the policy under consideration unconstitutional and halting its implementation.
From Rare to Routine
It’s a tactic lawyers began to use in the last years of the Obama Administration, but it has exploded under Trump, with one singular aim: “Democrat attorneys general are getting national injunctions to stop the Trump administration,” says Samuel Bray, a law professor at UCLA. Once a rare tactic, injunctions are now routine.
The national nature of many of these injunctions means that judges from Hawaii to Boston have been able to stop all kinds of policies issued by the president. And as a result, unelected judges from San Francisco to Denver to Richmond have been able to make policy for the entire country.
Judge Alex Kozinski, who until recently sat on the Ninth U.S. Circuit Court of Appeals, explained the effect of national injunctions this way: “one judge in one circuit gets to control the law until the Supreme Court intervenes.”
In other words, a judge in Hawaii could issue a completely unconstitutional ruling, but it will still bind the hands of the president until the Supreme Court steps in, months, or sometimes years, later.
The result is legal chaos and an unconstitutionally restricted executive. Take the case of President Trump’s travel ban, issued shortly after he took office in January 2017. No fewer than 15 contradictory and competing injunctions poured in from all over the country, blocking every attempt by the president to enforce his order—all of this in spite of the fact that the Constitution and legal precedents accord the president complete and nearly unchecked power to deny foreigners permission to enter the United States. Presumably because the Supreme Court is aware of this, the justices stepped in to allow the enforcement of the ban until they hear the case in April.
Allowing judges in California to make rulings that cover Texas isn’t how the legal system is supposed to work. “Federal judges are supposed to decide cases for the parties before them,” says Bray. “When one judge reaches out to give a remedy for everyone, including millions of people who aren’t before the court, that’s inconsistent with the judicial role established by the Constitution.”
Lower Courts Rule the Nation
Courts can certainly disagree with one another. Indeed, the system is set up so that they do. The whole point of having a federal court system is to allow ideas to “percolate” over time, letting lots of different judges weigh in on a subject 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.
The erosion of American jurisprudence aside, there is also an emerging and dangerous threat to the balance of powers between the courts and the executive. By issuing rulings that tie the hands of the president, the court assumes the elected power of the executive for itself. The powers the Constitution’s framers fought so fiercely to separate begin to bleed into one another and start to look a little like what James Madison warned against in Federalist 47: “[A]ccumulation of all powers, legislative, executive, and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.”
In forthcoming articles, I will review the ways in which the courts have begun to appropriate the executive power for themselves—at the very least, by twisting our jurisprudence in service of their own ends, which in many cases, is to stop President Trump at all costs.