Right On: Find a friendly judge and rule the country

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OPINION — When a federal district judge in Texas halted Obama’s deferred deportation of illegal aliens in 2015, I applauded.

Last year, when a federal district judge in Hawaii overturned Trump’s ban on travel from several terror-prone countries, I was upset at the interference with the president’s authority.

Those reactions are what you’d expect from a traditional conservative.

But regardless of your reactions to these cases, they both highlight a growing and disturbing problem with judicial authority: individual federal district judges issuing nationwide rulings. As the above cases show, the problem impacts those with both conservative and liberal leanings.

These nationwide injunctions have become the weapon of choice for those opposing presidential actions. But it’s not at all clear that they are constitutional.

In most cases, an injunction requires the parties in a specific case to take some action. For example, both parties in a highly-publicized case may be required not to speak to the media. But the national injunctions above and others like them are applied to jurisdictions not involved in a specific case.

State attorneys general of one party head to federal court to restrict or prohibit actions by a president of the other party not just in their state but nationwide.

These national injunctions have become popular since they are so effective in thwarting executive action. Republican state officials used them aggressively to halt Obama administration initiatives; the courts have issued 22 national injunctions against Trump administrative actions.

My concern here is not whether any particular presidential policy is prudent or foolish. The far larger issue is whether lower-court federal judges should have the authority in effect to direct national policy.

Notre Dame law professor Samuel Bray spoke to the issue before the House Subcommittee on Courts last year:

“No change in legal authority made [national injunctions] possible – no amendment, no statute, no big case. It was an accidental development starting in the 1960s and remained obscure until recently.

“Whether you are a Democrat or a Republican, sometime in the last three years your ox has been gored by the national injunction.”

Bray pointed out that the Supreme Court usually does not take a case unless two or more appeals courts disagree. In these circumstances, legal arguments have been presented in multiple courts and varying opinions have been reached by multiple judges. This process allows for a full vetting of countervailing opinions.

But when a single judge thwarts presidential action, cases must be quickly elevated to the Supreme Court with less evidence and fewer contrary opinions. Pressure for rapid decisions increases the likelihood of judicial mistakes.

A growing number of legal scholars echo Bray’s concerns. Supreme Court Justice Clarence Thomas agrees. In his concurrence in the Trump v. Hawaii travel ban case, he wrote:

“These injunctions are beginning to take a toll on the federal court system – preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.

“I am skeptical that district courts have the authority to enter universal injunctions. If their popularity continues, this Court must address their legality.”

Federal judges aren’t likely to stop the practice on their own. Why would they give up a new-found power? And state attorneys general can score political points with their constituencies and advance their political careers by seeking these injunctions, no matter how ill conceived.

There are good reasons why this practice should be stopped and two ways to do it.

Federal judges are bound by the Federal Rules for Civil Procedure that are approved by Congress. With oxen on both sides of the aisle having been gored over the last several years, we can only hope that bipartisan legislation could find a majority in a fractured Congress.

If that’s too much to expect, then a Supreme Court decision could end the practice forever. Such a move would have at least one supporter on the court.

The root cause of this fault with our judicial system lies in the ever-expanding scope of our federal government. Congress acts to address every problem, real or imagined, if only to appear responsive to activists whipping up public awareness.

Not having sufficient time or expertise to spell out detailed program implementation, Congress gives the president great discretion in implementing the resulting laws.

Current case in point: the Trump administration is using authority given presidents decades ago to impose tariffs for national security reasons to threaten European automobile imports. Huh?

We are far too ready to expect the federal government to address every ill. The Founding Fathers envisioned a limited federal government. It’s time we rediscovered the wisdom in that concept.

Howard Sierer is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: [email protected]h.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2018, all rights reserved.

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5 Comments

  • Kilroywashere September 13, 2018 at 4:26 pm

    Well written and a solution provided. I agree 100%. Add to that political campaign reform and overriding the SCOTUS Citizens United ruling. Ok enough, it is all a dream Howie, and I don’t see this nightmare going away for some time. But you have to start so somewhere. I believe you’re overly optimistic if you think the solution will come from the legal profession. Catch 22. J.Heller

  • DRT September 13, 2018 at 6:12 pm

    I believe that we have come to far from what the founding fathers envisioned. I don’t believe that our current system of things can ever recover from where we are now.

  • bikeandfish September 13, 2018 at 7:38 pm

    I actually agree with Howard on alot of this subject matter. But I differ on one point: I think Congress doesn’t utilize its power enough in the sense that its been far too obsequious to an imperial presidency. With each party abandoning any executive restraint we are stuck with one option, a federal court system trying to balance that abuse of power.

    Our federal government is in a tail spin as the current SCOTUS zoo highlights. I’m not sure the SCOTUS can recover from its current mingling with hyperpartisanship and I fear we’ll see it get worse each change in POTUS (i predict we’ll see major stacking of the courts).

    I think we are in for a wild ride.

  • commonsense September 13, 2018 at 9:41 pm

    The founding fathers intended that the legislative branch run the country. This body is elected often by those constituents who are geographically proximate. The executive branch is to do the bidding of the legislature by executing their directions. The judicial branch makes no law and executes no rule of law,

    The job of the judicial branch is interruptiing the laws passed by Congress. It cannot make law or overturn laws legally passed by Congress and cannot overrule the execution of laws by the executive branc.

    Problem is the judicial branch has grown by abdication of power by the legislature. The legislators don’t want to address he tough calls. The president has the right to protect against foreign dangerous elements. The laws are in place. For a judge in any state to countermand the president in his duties is ludicrous. Thank god the SCOTUS is becoming balanced and non political and will make the ultimate call.

    • bikeandfish September 14, 2018 at 12:16 pm

      Except they are equal, balancing branches of the federal government. The judicial branch is the one in which the use and abuse of Executuve power is officially judged. Founding Father John Marshall made this clear in Marbury v Madison. It is up to the SCOTUS to rule when laws and executive action are unconstitutional; if not, the Congress and POTUS could and do work together to run roughshod over civil liberties.

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