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.

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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.