The Hill – “President Trump is looking to stop lower courts from being able to issue wide-ranging injunctions in a move that could dramatically limit the authority of judges.”
After experiencing a few legal blows with temporary nationwide injunctions issued against them, Mike Pence relayed the administration’s whines woes frustration in a speech on May 8 to the Federalist Society that groups who oppose their policies have been successful in the lower courts with the injunctions and that “the administration has been “unfairly” targeted by injunctions — and promising to unveil in coming days pathways to put the issue before the Supreme Court.”
According to an Axios report, Pence signaled to the group the Trump administration’s intent to “challenge the rights of federal district courts to issue nationwide injunctions” up to the Supreme Court.
“These orders are issued by federal district court judges on a broad range of issues — from national security to immigration, from border security to healthcare reform. [They] prevent the entire Executive Branch from enforcing a statute, a regulation, or a policy on a nationwide basis. And they apply everywhere, to everyone, granting relief even to those who are not parties to a case.”
“So I say to all those gathered here: For the sake of our liberty, our security, our prosperity and the separation of powers, this era of judicial activism must come to an end,” Pence said. “The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them.”
A source confirmed to Axios that “Attorney General Bill Barr will start moving on this in the next few days and that the Justice Department will begin looking for potential injunctions to appeal to the Supreme Court.”
Nationwide injunctions against the Trump administration include:
- A federal judge in California issued a nationwide injunction against Trump’s plan to rollback the Affordable Care Act’s contraception rules in 13 states.
- A federal judge in Oregon issued a nationwide injunction against Trump’s plan to stop offering federal funding to doctors who offer abortions.
- A federal judge in California issued a nationwide injunction against Trump’s plan to provide federal grants to police who enforce immigration rules.
However, the AP notes, “For the Supreme Court to issue a definitive ruling on nationwide injunctions, it would first have to rule against the administration on the underlying merits of the case before it. Only at that point could the court consider whether a lower court order should apply nationwide or only to the people who are challenging an administration policy.”
The Hill adds legal experts say it would be hard to get a case before the Supreme Court to get it to rule solely on the injunction because challenges to nationwide injunctions are always part of ‘broader cases.’
Justices could effectively “dodge the issue, ruling on the merits of an injunction as it applies to a specific case without necessarily ruling on the wider constitutionality of nationwide injunctions.”
However, the legal experts also noted that “parties out of power have long supported injunctions, while those in power have opposed them.”
“Democrats and the Obama administration, for example, opposed national injunctions when they were issued in response to some of the former president’s policies, such as ObamaCare and the Deferred Action for Childhood Arrivals program.”
“The party who holds the presidency doesn’t like them. And the party who’s out of power does like them,” Amanda Frost, a law professor at American University, told The Hill.
Frost said she supports the existence of national injunctions. But she said that judges should be cautious in issuing the orders and only do so if they feel it’s necessary to protect a wide range of Americans wrongly impacted by a federal policy.
But she rejected the argument made by Pence and others that one federal judge should not be allowed to make a ruling that can impact the entire nation.
“That’s how our district courts work. A single judge gets to decide lots of sweeping questions about policy that are applied nationwide,” Frost said.
And she noted that the Trump administration can always appeal a judge’s ruling and receive a stay on an injunction, as it recently did over an order that would have paused a Trump policy requiring some asylum-seekers to remain in Mexico as their cases are processed in the U.S.
Ultimately, Frost said, conservatives who are now seeking to limit injunctions may come to regret it should the Supreme Court rule in their favor.
“It’s shortsighted to get rid of them and say, ‘Well, that will produce more policy that I like.’ It might well not,” she said.
Bloomberg Law notes that “Justice Clarence Thomas made similar complaints about nationwide injunctions in a solo concurrence he wrote to the high court’s decision upholding President Donald Trump’s travel ban last year.”