5-21-19

A longstanding legal question may finally come to a head.

The headline “Trump seeks to limit judges’ powers on injunctions after legal blows” seems ominous—another case of a petulant President seeking to shed longstanding norms when he can’t get what he wants. The reality is more complicated.

President Trump is looking to stop lower courts from being able to issue wide-ranging injunctions in a move that could dramatically limit the authority of judges.

The plan comes as groups opposed to Trump have been able to get several of his policies, including those seeking to limit immigration, put on hold by nationwide orders issued by lower courts in battles that were eventually decided by the Supreme Court.

Advocacy groups that have pushed judges to issue nationwide injunctions say they are necessary to protect people from policies they see as harmful, and some legal experts agree, arguing that the right to issue such actions is protected under the Constitution.

But opponents argue that injunctions should be applied more narrowly to groups that are directly impacted, saying the more liberal use of injunctions is hurting the judicial system.

This is a perfectly legitimate question. Indeed, I’ve often questioned the wisdom of allowing lower court judges to overrule national legislation such as the Affordable Care Act. It’s one thing to rule in a specific case—their remit—and quite another to serve as a one-man Supreme Court, if only temporarily.

Vice President Pence this week brought the issue front and center, saying in a speech to the conservative Federalist Society that the administration has been “unfairly” targeted by injunctions — and promising to unveil in coming days pathways to put the issue before the Supreme Court.

“So I say to all those gathered here: For the sake of our liberty, our security, our prosperity and the separation of powers, this era of judicial activism must come to an end,” Pence said. “The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them.”

Again, this is perfectly within bounds. Pence isn’t suggesting that the President is going to stop obeying orders from lower courts. He’s merely seeking a ruling from the highest court in the land on judicial power.

Pursuing an end to nationwide injunctions would mark the latest attempt by President Trump to shape the federal courts after getting two Supreme Court justices confirmed and more than 100 of his judicial picks installed by the Senate. 

Aside from the underhanded means by which Senate Republicans kept the seat open for Trump, there’s nothing unusual in the least about Presidents appointing judges to vacant seats. Describing it is some sort of master plot is silly.

Trump opponents have argued that nationwide injunctions are necessary to protect people who may not be part of a lawsuit but would nonetheless be impacted by a particular policy or legislation.

“When the extent of the harm is nationwide, the relief should be nationwide,” Sasha Buchert, a senior attorney for the LGBT rights group Lambda Legal, told The Hill.

She pointed to the ban on transgender service members as an example of a national policy that the group was able to fend off by convincing a judge to issue a nationwide injunction, arguing that more soldiers than those filing the lawsuit would have been impacted by the action. 

The administration eventually implemented a more limited form of its ban on transgender service members.

Meanwhile, Cecillia Wang, a deputy legal director for the American Civil Liberties Union, said the administration’s effort to limit the scope of injunctions “is simply to stand in the way of justice.”

Wang also argued that the power to issue nationwide injunctions is protected under the Constitution.

“I can’t take seriously the vice president’s threat to undo what the founders of the country, the framers of the Constitution intended, which is to have a safeguard against unlawful executive branch action,” Wang said.

Buchert’s point strikes me as perfectly reasonable: there are cases where limiting the ruling to the specific case in controversy would do real harm.

But Wang is being disingenuous. The framers of the Constitution had no opinion whatsoever on this matter. Not only is judicial review nowhere mentioned in Article III, whether lower courts would exist at all was left up to the discretion of the Congress. (Then again, creating lower courts was among the very first acts of the first Congress.) And the Supreme Court itself didn’t strike down an act of Congress until 1803—fourteen years into the Constitutional era—and didn’t do so again until 1857. Surely, it was not intended for lower courts to do so routinely.

But other legal experts oppose nationwide injunctions. They argue that judges’ rulings blocking policies should apply only to those behind the legal challenge and that courts are overstepping their bounds by issuing wide-ranging injunctions.

Samuel Bray, a law professor at the University of Notre Dame who has been vocal in his opposition to national injunctions, said such sweeping orders “take the courts outside of their constitutional role.”

He argued that district courts were designed to rule on matters involving specific parties and not an entire nation. And if individuals in a lawsuit want the order applied nationally, Bray said, they could always file a class-action lawsuit to do so.

“Everybody in the class will win or lose together,” Bray said. And he noted that if one party loses its case for a national injunction before one judge “someone else can take another bite at the apple in another court.”

Nicholas Bagley, a law professor at the University of Michigan who is similarly opposed to nationwide injunctions, said policies that are challenged in court deserve to undergo a “robust” review in the courts and should not simply be put on ice by the ruling of a single judge.

“What I struggle with is why anyone would support handing to judges the authority to put a halt to important government programs just because they happen to get their knickers in a twist about a particular case,” Bagley said.

Indeed, one problem with the current situation is the ability of litigants to judge shop—filing cases in jurisdictions where a sympathetic ruling is likely. And, as Bray hints, there’s also the ability to get multiple bites of the apple, filing case after case until one gets a ruling one likes. There are some 673 district court judges, after all.

It’s unclear how the Supreme Court would rule if the question does land before it.

Justice Clarence Thomas, a conservative appointed by former President George H.W. Bush, has previously called for the Supreme Court to take up the issue of national injunctions if they continue to be used in the legal system.

But some experts say the rest of the court may be wary of deciding to take away a power from judges that is currently used throughout the United States and that enjoys a strong legal precedent.

It would also be hard to get a case before the Supreme Court that allows it to rule solely on the constitutionality of national injunctions since challenges to injunctions are often part of broader cases. 

That means the justices could effectively dodge the issue, ruling on the merits of an injunction as it applies to a specific case without necessarily ruling on the wider constitutionality of nationwide injunctions.

I have no opinion on how the court would rule. Cynics will argue that, with Justice Brett Kavanaugh on the bench, they’ll simply rule however the Trump administration wishes. But Chief Justice Roberts clearly has a longer vision than that, understanding the need to preserve the legitimacy of the judiciary.

Legal experts also noted to The Hill that parties out of power have long supported injunctions, while those in power have opposed them.

Democrats and the Obama administration, for example, opposed national injunctions when they were issued in response to some of the former president’s policies, such as ObamaCare and the Deferred Action for Childhood Arrivals program.

“The party who holds the presidency doesn’t like them. And the party who’s out of power does like them,” Amanda Frost, a law professor at American University, told The Hill.

Frost said she supports the existence of national injunctions. But she said that judges should be cautious in issuing the orders and only do so if they feel it’s necessary to protect a wide range of Americans wrongly impacted by a federal policy.

But she rejected the argument made by Pence and others that one federal judge should not be allowed to make a ruling that can impact the entire nation.

“That’s how our district courts work. A single judge gets to decide lots of sweeping questions about policy that are applied nationwide,” Frost said.

And she noted that the Trump administration can always appeal a judge’s ruling and receive a stay on an injunction, as it recently did over an order that would have paused a Trump policy requiring some asylum-seekers to remain in Mexico as their cases are processed in the U.S.

Ultimately, Frost said, conservatives who are now seeking to limit injunctions may come to regret it should the Supreme Court rule in their favor.

“It’s shortsighted to get rid of them and say, ‘Well, that will produce more policy that I like.’ It might well not,” she said.

Frost may well be right.

Oddly, while I have written several posts of late arguing that the problem with our system is the politicians, not the Constitution, this may be a case where the institutions of 1789 simply don’t work.

While it’s debatable whether the Framers could envision a continental nation of 330 million people and 50 states, they certainly had no conception of anything like the modern regulatory state. There are relatively few laws being passed by Congress but regulations from the bureaucracy implementing those laws are legion. It really makes no sense to have district court judges weighing in on those.

Ultimately, we likely need a separate track entirely for such questions. I’m agnostic as to whether that’s a specialized court that has original jurisdiction over challenges to national-level injunction requests, a Supreme Court that fast tracks those sort of cases, or something else. But elected Presidents shouldn’t have their policies stopped at the whim of a random judge with a lifetime appointment.

 

https://www.outsidethebeltway.com/trump-wants-end-to-national-injunctions-from-lower-courts/