Injunction Junction, What’s Your Function?

Since taking office, President Trump has phased out President Obama’s Deferred Action for Childhood Arrivals program for illegal aliens, initiated a travel ban, put in a place a new policy on refugees, and stripped federal grants from sanctuary cities.

So, why aren’t any of these policies in place? Because each of them has been blocked by individual judges at the lowest level of the federal judiciary. District judges, empowering themselves with a judicial tool known as the national injunction, have single-handedly blocked the president from implementing his electoral mandate.

The national injunction has been called “a major political weapon for stopping a president’s program,” and for good reason. Indeed, in just the first year of Trump’s term in office, district courts have halted major, substantive efforts by the president to repeal regulations at the Environmental Protection Agency, to change Obamacare’s contraceptive coverage and to reinstate a ban on transgender troops. In total, Trump has been hit with 22 national injunctions—more than any other president in our history.

But on immigration policy, in particular, the courts have blocked nearly every single attempt by Trump to exercise his constitutionally granted executive authority. Lower court judges trip over themselves in a dance of judicial absurdity all with one aim—to stop the president from doing what he is constitutionally authorized to do.

The judicial action surrounding Trump’s travel ban is a key example. It took lower court judges less than 24 hours to issue rulings against the ban, and give them broad, nationwide application. Judges in New York and Boston were first to the starting line. Once the administration modified the ban, the judge in Boston lifted his injunction—only for judges in Seattle and Virginia to declare nationwide injunctions. After a third modification, courts in Hawaii and Maryland made policy for the nation.

Seemingly skeptical of the outright hostility shown by the lower courts to the president’s national security powers, the Supreme Court put an end to the lower court squabbling earlier this year by permitting immediate enforcement of the ban until it officially rules in June.

District courts have also wielded national injunctions against the president’s attempt to roll back President Obama’s constitutionally suspect DACA program. After his Justice Department concluded that the DACA program was a clear overstep of constitutional authority, President Trump began phasing it out—using his executive authority to end the program in the same manner President Obama used his authority, erroneously, to create it.

Yet again, individual judges would not let it stand. Judge William Alsup in San Francisco used a local case to impose a nationwide halt to Trump’s efforts. A similar ruling from a judge in New York followed shortly thereafter.

This poses an obvious question: why are lower court judges in New York and California allowed to decide a question for the entire country? Voters sent Donald Trump to office, but increasingly, it is the district court judges who are shaping and changing national policy.

Legal scholars have raised the alarm, noting that the increased practice of national injunctions diminishes the quality of arguments within the legal system. More insidious is the effect these injunctions are having on the fundamental relationship between executive and judicial power. As one law professor put it, “national injunctions are transforming the relationship between the courts and the political branches.”

Attorney General Jeff Sessions publicly has called the practice into question. Setting aside the legal minutia, he addressed the importance of the issue for non-lawyers, writing “This is a question of who gets to decide the policy questions facing America: Is it our elected representatives, or elected president, or unelected lifetime-appointed federal judges?”

In an age rife with partisan hostility, this is a vital question to be asking. Voters provide electoral mandates to their Congress, and to the president. Judges are asked to interpret the law neutrally, not to decide its outcome. Nowhere does the Constitution grant judges the right to veto a president’s actions because they disagree with him on policy grounds. As UCLA law professor Samuel Bray put it, “payback is no way to run a legal system.”

So what can be done? How can our federal system return to one president, rather than a president who is forced to defer to multiple self-appointed legal chancellors? 

Legal scholars and members of Congress are posing solutions. The Constitution also provides avenues to restore the badly undermined separation of powers. The last piece in this series will lay out options for restraining a practice that threatens not just President Trump’s agenda, but the very nature of our representative government.

About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.

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9 responses to “Injunction Junction, What’s Your Function?”

  1. There exists a simple solution for judicial overreach. Article III, Section 2 states, “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

    Were Republicans in Congress even to mention the Constitutional possibility of Congress’ excluding areas of the law from judicial review, it would scare activist judges and set them back on their heels.

  2. Lawless judicial overreach should be dealt with swiftly and severely. Ignore the rulings and impeach the judges

    • Congress has great difficulty impeaching a president. There is NO chance it could impeach even a handful of overreaching judges and it would tie itself in knots attempting to do so.

      The more plausible solution is for Congress by act to remove presidential executive acts from the jurisdiction of lower courts, requiring suit to be brought originally in the Supreme Court. That would close this back door effort to circumvent the Constitutional separation of powers.

      • There’s no chance of Congress doing anything until there’s wholesale change in its makeup or the people finally revolt.

  3. This is what happens when the congress doesn’t do its job. First of all those judges must be impeached and removed from office. Second congress should be allowed to write ambiguous laws that allows for court interpretation.

  4. If impeachment is politically impossible, the Judiciary had better come up with a internal stop… b/c these frivolous injunctions invite more of the same… The liberal judges only get away with this stuff b/c they flaunt precedent and the law, knowing full well there is no “other side” that will do the same. There are activist jurists on the left, and then the jurists who honor the law, and the principles and are not inclined in the least to overstep or instigate. So it’s always on the left. And there is no push-back…ever. No pause, for ” what if the other side did this too? “… because by definition, the other side never would and in fact goes out of it’s way to be as neutral as possible and when unable, they recuse themselves.

    • This same dynamic of endeavoring to be as neutral as possible and, when unable, to recuse themselves is what has been at play with Jeff Sessions and the muh-Russia investigation. Sessions is trying to restore the idea that the Department of Justice should be run by rule of law. Lord knows, that is not how the previous regime operated.

      Given just the suspicion of impropriety, Sessions recused himself so that he could set the standard to which all should attain. But the problem is that it is easy to bandy about suspicions. It is also easy (for Dems) to sit on efforts to resolve whether the suspicion had merit in the first place. That took Sessions out of his oversight capacity and has enabled Rod Rosenstein to continue the effort to effect a coup of the duly elected President. (Yes, I truly believe that Rosenstein is complicit here.)

      We are on the precipice of whether we can remain a nation whose guiding principle is the rule of law, or whether rule of law is shredded so badly that we succumb to the Orwellian disorder which is the law is whatever the favored few declare it to be.