Attorney General Jeff Sessions last month gave a speech about the rise of “super legislators.” He wasn’t talking about members of Congress; he was talking about judges.
In particular, he was talking about district court judges, and the growing frequency with which individual judges from California to Boston are issuing national injunctions—that is, using regional cases to make national policy from the bench.
What was once a rare legal tactic has now become a routine effort by lower court judges to stop President Trump’s agenda in its tracks. In just over one year in office, the president has been subject to 22 national injunctions—more than any other president.
Throughout this series I have outlined the scope of the problem. I have also highlighted two significant areas where the courts have made it their mission to block otherwise constitutional actions by President Trump—first on his efforts to roll back Obamacare’s contraceptive mandate (the part of the law that requires nuns to purchase birth control), and second on his attempts to modify the nation’s immigration system.
The judicial autocracy imposed by national injunctions is hardly limited to those policy areas, however. The courts have also halted Trump’s efforts to change the policy regarding openly transgender soldiers in the military, modify refugee quotas, and repeal burdensome environmental regulations.
Life-tenured judges, it seems, have appointed themselves the arbiters of national policy. In doing so, they are not just creating legal chaos and undermining the quality of the justice system, they are distorting the constitutional balance among the branches. Judges are supposed to be neutral parties interpreting the law as it relates to the actions of the elected branches—not with claiming ownership of partisan, policy outcomes.
It’s a reality that James Madison cautioned against, pronouncing the “accumulation of all powers” in the same hands as “the very definition of tyranny.”
The constitutional separation of powers is out of balance, and it must be restored. The Constitution’s Framers envisioned each branch to be a check on the other; to guard against the natural greediness inherent in each branch, desiring to accumulate power for itself. The abuse of national injunctions represents an attempt by the judiciary to claim for itself a policy making role that it does not have. It is incumbent upon the policy making branches to take that power back.
There are two proposals in the Congress that, if implemented, would provide this necessary check.
The first, proposed by Rep. Gary Palmer (R-Ala.), seeks to limit the practice of “forum-shopping”—where those seeking to challenge a president’s agenda “shop” for a court they believe would provide the most favorable judgment, in this case, a national injunction. Forum shoppers have largely been successful in their choices. There’s a reason, for example, that many of the national injunctions have emerged from the liberally minded 9th circuit. Palmer’s proposal would remove the incentive to forum-shop by requiring challenges against the executive to be heard in District of Columbia, thereby limiting the ability of challengers to simply select a jurisdiction favorable to its side.
Rep. Dave Brat (R-Va.) has proposed even broader legislation, which would remove the ability of district judges to issue national injunctions in the first place. Specifically, his proposal would limit injunctive relief to the geographical jurisdiction of the court, and to the standing of individual plaintiffs before that particular district court.
In other words, Brat’s proposal would clarify that district court decisions apply only to their geographic region, and only to the individuals or groups before that specific court.
Both of these proposals seek to claw back the policymaking role that courts have unjustifiably absorbed. These remedies are not only necessary, but also appropriate considering the district courts are a creation of Congress. Article III of the Constitution gives Congress express authority to “ordain and establish” the lower courts, which it did with the Evarts Act of 1891.
Congress created the appellate system to relieve some of the burden on the Supreme Court. They did not seek to create a competing policy body, or a body that has developed into what Sessions calls “super legislators”—unaccountable and unelected judges, creating policy for the nation. Congress can and should step in to check and modify the lower courts when they exceed their constitutional powers and violate the clear intent of their origin statute.
Notably, the Constitution also gives Congress the authority to remove judges from office for poor conduct—a remedy to judicial corruption or conduct that violates the Constitution, used only 15 times since 1803, most recently as 2010. It’s an extreme remedy, but one well within the rights of Congress to exercise against judges who fail to uphold their oath.
The problem of national injunctions, however, goes beyond the fact of judges’ ability to halt President Trump’s agenda. Rather, it strikes at the heart of who we are as a country.
Are we to be ruled by judicial supremacy, or are we instead a self-governing country with powers originating in the sovereignty of the people and then delegated to the appropriate branches for limited purposes? Are we ruled by the consideration of many minds, or the minds of judge-kings, who claim policy certainty and political authority for themselves?
Congress ignores this problem at its peril. As power continues to accumulate in the judiciary, our representative federalism is exchanged for a judicial dictatorship. This is no way to run a country, no matter who is president.
Photo credit: Saul Loeb/AFP/Getty Images