A Constitutional Turning Point?

The Supreme Court began its November sitting this week in what is already shaping up to be a blockbuster term, both on the regular oral argument docket and the emergency docket. The latter has taken on huge significance as lower federal court trial judges in forum-shopped district courts have issued an unprecedented number of nationwide injunctions against President Trump’s executive actions.

I say “forum-shopped” because a large number of the roughly 400 cases that have been filed against the administration since January 20 have been brought in jurisdictions in which all (or nearly all) of the judges were appointed by Democratic presidents. All 11 of the sitting active judges on the U.S. District Court for the District of Massachusetts, for example, were hand-picked by Democrats—one by Bill Clinton, five by Barack Obama, and another five by Joe Biden. The five judges serving on the First Circuit Court of Appeals, which oversees that court, are likewise entirely stacked with Democratic appointees—three by Obama and two by Biden.

Even before the term began on the first Monday in October, the Supreme Court was already checking what increasingly appears to be rogue rulings by anti-Trump lower court judges who are essentially second-guessing the president’s executive decisions dealing with foreign aid and other spending cuts, deportations, federal law enforcement, and administrative agency personnel firings—all core areas of executive authority.

In Department of State v. AIDS Vaccine Advocacy Coalition, for example, the high court stayed a lower court decision ordering the government to spend billions in foreign aid funds that ran directly contrary to the president’s foreign policy goals. In Noem v. Perdomo, the Court stayed a district court injunction barring ICE officers from using four categories of evidence highly indicative of illegal immigrant status as they enforce immigration laws. In Noem v. National TPS Alliance, the Court stayed a lower court order blocking the removal of temporary protected status for Venezuelan nationals. And in Trump v. Boyle and Trump v. Slaughter, the Court stayed lower court decisions ordering the reinstatement of three Consumer Product Safety Commissioners and a Federal Trade Commissioner, all of whom Trump had fired.