Right On: Find a friendly judge and rule the country

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: hsierer@stgeorgeutah.com

Twitter: @STGnews

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