People should pay attention when the heads of two of the three branches of our national government get into a verbal contretemps. When President Donald Trump complained about an injunction issued by a federal judge appointed by President Barack Obama against executive orders revising asylum policy, Chief Justice John Roberts testily responded that federal judges are not political partisans to be identified by the party of the president who nominated them.
Trump did not accept the Chief Justice’s rebuke, and has continued his criticism of federal judges who block his policies, particularly those in the Ninth Circuit based in San Francisco.
Leaving aside the proprieties of the exchange, what can we make of the substance of these comments by the heads of the Article II and Article III branches? To the chagrin of this long-time attorney, our non-lawyer president must be said to have the stronger argument. Local federal district court judges are abusing their power to issue nation-wide injunctions against the federal government, and the Supreme Court has so far failed to rein in this judicial overreach. This should be a bipartisan concern. Although so far most of these injunctions have been issued against a Republican administration, now that the floodgates have been opened by Democrat-appointed judges, can anyone doubt that the next Democrat occupant of the White House will be bombarded by similar measures from Republican-appointed judges?
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Now it is true that Trump does not parse his tweets with the nuance that we lawyers would prefer. And it is also true that most federal judges sincerely try to adjudicate most cases in a non-partisan manner. That is possible because most federal court cases have little or no ideological content. However, the Chief Justice cannot be contending that all federal judges always act without ideological perspectives. He need only look at the Court on which he sits. Everyone recognizes that on cases with major import for constitutional policy, Justices Ginsberg, Breyer, Sotomayor and Kagan are going to align and Justices Thomas, Alito, Gorsuch and usually the Chief Justice are going to vote together to the contrary. The furious opposition to the confirmation of Justice Brett Kavanaugh was because it is thought that he will align with the latter group on these crucial cases. It is also hard to believe that he is arguing that the federal judiciary cannot be criticized.
The president’s complaint was really about a small subset of cases which do have major partisan and ideological elements. In these, judges appointed by Democratic presidents have used nation-wide injunctions to stymie many administration efforts, particularly relating to enforcement of the immigration laws. There were no such nation-wide injunctions in the nation’s first 175 years and, even after the first few, for several decades they were rare.
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However, the more than two dozen already issued against the Trump administration exceed the number issued during the entire 8 years of the Obama presidency. This recent increase is a significant new development in our political system, essentially empowering each of the almost 900 federal judges to dictate national policy. It encourages forum shopping and discourages the maturation of judicial consideration of constitutionally controversial policies through the court system. And, contrary to the Chief Justice’s ideal, it politicizes the courts.
The best solution would be congressional action limiting such nation-wide injunctions. A bill has been introduced in the House to ban them in all but class actions. This probably goes too far. I have proposed a more moderate action which would automatically stay such district court actions pending a de novo review at the circuit court level.
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Even without such authorization, there are two steps the Supreme Court can take to bring some reason to these runaway lower courts. The first would be to use its authority as the chief administrative body of the federal judiciary to establish more stringent standards for the issuance of such far-reaching court orders. For example, executive branch actions could be given a presumption of legality, as administrative agencies are now under the so-called Chevron doctrine.
Another less obvious but important step would be to better define the evidentiary standard applicable to such cases. There are Supreme Court cases in which official records of the state legislatures have been accepted to demonstrate constitutionally impermissible intent. The judges in these recent cases have wildly expanded these precedents to use the president’s campaign rhetoric as a basis for enjoining subsequent executive orders, while ignoring official explanations of the orders as actually issued.
The Supreme Court should limit the use of these precedents to prevent a long-term chilling effect on our political discourse. Will it be healthy for our democracy if political candidates feel that they have to speak to the electorate with the same evasion, opacity and cageyness as, for example, judicial nominees at their confirmation hearings?
James W. Lucas is an attorney in New York City. He is the author of “Are We The People? How We the People Can Take Charge of Our Constitution” and other works on legal and constitutional policy.
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