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Nationwide injunctions—when a single district court judge can halt the enforcement of a law or policy across the country—have been stymying President Trump’s agenda from the get-go. And Attorney General William Barr is getting fed up.
In a speech on Tuesday to the American Law Institute, Barr railed against national injunctions, noting that 37 of them have been issued against President Trump—more than one a month—compared to just two that were issued against President Obama during his first two years in office. According to Justice Department statistics cited by Barr, only 27 national injunctions were issued in all of the 20th century.
Barr is right to complain. The judiciary—which, it should be pointed out, the Framers envisioned as the weakest branch—has asserted breathtaking and unprecedented control over the policy process. One judge can now effectively cancel a policy with the stroke of a pen. As Barr put it, these injunctions give “a single judge the unprecedented power to render irrelevant the decisions of every other jurisdiction in the country.”
In other words, “one judge in one circuit gets to control the law until the Supreme Court intervenes.”
In practice, this has encouraged plaintiffs to forum shop—to seek the jurisdiction most friendly to their cause. It’s no accident that nearly all of the national injunctions issued against the Trump Administration have come from deep blue states.
This has also resulted in a measure of judicial absurdity. Individual judges have declared that President Trump cannot undo actions by executive order, despite the fact that many of those same actions were created by executive order in the first place. And a judge in one forum can issue an injunction contradicting one issued by a judge in another.
The consequence of these repeated injunctions is not just a dangerous erosion of the separation of powers, but chaos in our political system.
For evidence of this, look no further than DACA—the Deferred Action for Childhood Arrivals program created under President Obama, which gives legal status to immigrants who were brought here illegally as children. Obama’s actions were widely decried as well outside the bounds of executive authority. That is, though the law gives the executive considerable power to enforce immigration law, the president does not have the authority simply to wish new programs into existence.
Upon taking office, President Trump sought to wind down the program, a chit that gave him leverage to bring Democrats to the table over larger immigration reform. But a judge in California had other plans. As Barr detailed,
The first injunction from the Northern District of California came down on January 9, 2018, in the middle of high-profile legislative discussions. Hours earlier that same day, President Trump allowed cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress over the DREAM Act, border security, and broader immigration reform. Of course, once a district judge forced the Executive Branch to maintain DACA nationwide for the indefinite future, the President lost much of his leverage in negotiating with congressional leaders who wanted him to maintain DACA nationwide for the indefinite future. Unsurprisingly, those negotiations did not lead to a deal.
The entire legislative process—elected representatives of the people, negotiating between the branches, as the Founders intended—was halted because of a single, regional judge in the Northern District of California.
But it’s not just the legislative process that has stopped. What has this particular injunction wrought? Barr, again:
Dreamers remain in limbo, the political process has been preempted, and we have had over a year of bitter political division that included a government shutdown of unprecedented length. Meanwhile, the humanitarian crisis at our southern border persists, while legislative efforts remain frozen as both sides await the courts’ word on DACA and other immigration issues.
The courts were never intended to have this much authority. Judges were never intended to be our unelected robed masters. Writing in Federalist 78, Alexander Hamilton envisioned the courts to be the “least dangerous” branch, because courts have “no influence over either the sword or the purse . . . neither force nor will, but merely judgement.”
That assurance increasingly rings hollow as injunctions continue to proliferate, short circuiting the democratic political process.
So what is to be done? Ultimately the balance of powers must be restored, and the legislative branch is the one best positioned to do it. Proposals exist in the House of Representatives to claw back the policy making role which the courts have unjustifiably absorbed.
But, given the Democratic leadership in the House, whose priorities currently are benefiting from judicial supremacy, those proposals are unlikely to receive any consideration.
In a speech to the Federalist Society earlier this month, Vice President Mike Pence revealed that the administration is looking for opportunities to challenge national injunctions in the U.S. Supreme Court.
The high court has demurred on several opportunities to weigh in on the injunction chaos in the lower courts. But there does appear to be a growing receptiveness. Writing in a concurring opinion in a case upholding President Trump’s travel ban (itself subject to several injunctions), Justice Clarence Thomas urged the court to step in:
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.
Action, be it from the Supreme Court or Congress, needs to come soon. “This would doubtless upset those who’ve grown used to thwarting government actions through the court system,” write law professors Nicholas Bagley and Samuel Bray. “But the United States is a fractious, complicated democracy, and it’s disconcerting how much authority we’ve ceded to lone, unelected judges.”
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