This is an old argument which is getting a fresh look in the age of Trump, particularly after a recent op-ed written by the Attorney General and some interviews he’s done. When the executive branch issues an order covering something not regulated by the legislative branch, should a judge from one district be able to shut down the order across the entire nation? That’s the question being tackled by Jeff Sessions this month and he clearly feels the answer is no. (National Review)
Using nationwide injunctions to shut down elected officials from carrying out our laws effectively silences the people who voted for them.
Under our Constitution, Congress writes our laws, the executive branch carries out our laws, and the judiciary applies those laws to cases and controversies.
These branches are coequal. The courts are not superior. On matters of policy, the branches that are directly accountable to the people must be given proper respect. That’s why it’s so alarming that judges are increasingly issuing nationwide injunctions — orders that block the entire federal government from enforcing an executive-branch policy or executing a statute. These injunctions block the government from carrying out a law — not just in one district or to one person, but anywhere in America.
For some in-depth analysis of this essay, you can read the full transcript of an interview that Hugh Hewitt did with Sessions on the subject here.
Sessions goes on to note that judges didn’t issue these sorts of national injunctions against executive actions for the first 175 years of our country’s existence, but now they have become increasingly more common. President Trump has been hit with 22 of them in a single year, more than any other president, ranging from orders blocking the travel ban and DACA to sanctuary city restraints and the military transgender recruiting ban. As Sessions goes on to explain later in the article, this isn’t a problem unique to either party. Barack Obama had a number of his own orders held up nationally as well, though definitely fewer than we’re seeing now.
Also pertinent (and we’ve mentioned this here before), is the “forum shopping” which goes on in these cases. Most of the injunctions leveled at Barack Obama came from courts in Texas (the 5th Circuit). For Donald Trump, they almost all originate in California or Hawaii (the 9th Circuit). The partisan split of how and when these judges are appointed is fairly obvious.
So what’s the solution? Sessions notes that further back in history, when a plaintiff asked for an injunction and one was granted, it was only applied to the parties bringing the case forward, not the entire country. So what, if anything should be done about it? In one sense I have to disagree with Jeff Sessions in terms of the equal standing of the three branches of government. Yes, we describe them as being “co-equal” out of habit, but in reality that’s not actually true, is it? When it comes to crafting laws, the legislature and the White House have to work in tandem, passing bills which are then either signed or vetoed by the President with a chance for Congress to override that veto. But once a law is passed and subsequently challenged, the Supreme Court can rule on it once and there is no further discussion. In that sense, they are superior to the other two branches. There is no appeal to a decision from the Supreme Court.
While we generally accept the Supremes as the final word on the constitutionality of laws or executive orders, the problem Sessions is wrestling with deals with the lower courts. There’s a reason we have 94 federal judicial districts, each falling under one of 12 regional circuits. And each of those circuits has a United States court of appeals. They should be ruling on the cases presented to them and, at most, the regions they cover. Now that any federal judge can basically shut down the implementation of a law or an executive order, why would either party stop trying to do this?
It seems as if common decorum prevented this from happening in the past. Now, however, we live in an era of hyperpartisan political warfare. Every president and Congress going forward can (and very likely will) be stymied any time they do anything more complicated than naming a new Post Office branch. And to be honest, I can think of a few of those that might face injunctions too. But the Supreme Court has never ruled on the question of national injunctions instituted by lower courts and they tend to be loathe to bring the hammer down on them too heavily. This may be a problem without a solution.