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May 27, 2019

AG Barr Calls For Reform of National Injunctions by District (Local) Judges

Tyranny by the Hawaiian.

Attorney General Barr gave a speech to the American Law Institute Tuesday on the topic of nationwide injunctions. As Barr pointed out, nationwide injunctions have been used an unprecedented number of times during Trump's administration. In fact, more national injunctions have been issued under Trump than during the entire 20th century.

Barr noted that these national injunctions were never used for the first 175 years of the Republic, and violate the notion of separation of powers by giving one unelected petty local judge the power to stop both the president and Congress:

Article III vests federal courts with "the judicial power" to decide "Cases or Controversies." As the Supreme Court has instructed, that means concrete disputes among individual parties. In the words of Chief Justice Marshall in Marbury v. Madison, "the province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion."

Limiting judicial power to resolving concrete disputes between parties, rather than conducting general oversight of the Political Branches, ensures that courts do not usurp their policymaking functions...

He also noted that these lowly petty-ass local judges have, through this assumed power to issue national injunctions, made themselves more powerful than any president or the Supreme Court to which they answer:

Congress set clear geographic limits on lower-court jurisdiction. In our system, district-court rulings do not bind other judges, even other judges in the same district. This system has many virtues. It creates checks and balances within the judiciary itself and encourages what former D.C. Circuit Judge Harold Leventhal called "percolation" -- the process by which many lower courts offer their views on a legal issue before higher courts resolve it...

Nationwide injunctions not only allow district courts to wield unprecedented power, they also allow district courts to wield it asymmetrically. When a court denies a nationwide injunction, the decision does not affect other cases. But when a court grants a nationwide injunction, it renders all other litigation on the issue largely irrelevant. Think about what that means for the Government. When Congress passes a statute or the President implements a policy that is challenged in multiple courts, the Government has to run the table--we must win every case. The challengers, however, must find only one [Hawaiian -- ace] district judge--out of an available 600--willing to enter a nationwide injunction. One judge can, in effect, cancel the policy with the stroke of the pen.

See John Sexton's post for the full argument, as well as quotes from a New York Times article which, surprisingly, finds many legal experts who agree with Barr, and think the Reign of the Hawaiian Judges must come to an end.

There are a lot of things in our scheme of government which are vague. A big example that comes up again and again is, "What is the exact delineation of power between a president, who is the chief foreign policy maker in the country and is also charged with defending the country, and congress, which has the constitutional power to declare war, to decide when war starts and when war must end, and what is a 'war' in the first place?"

These vague areas are often left vague, because neither party wants to push things to the limit where someone -- like the Supreme Court-- makes a firm ruling and decides the matter against them. That is, presidents do not want to push their claimed powers to start wars-that-are-not-called-wars by their own authority to the absolute limit, for fear of the Supreme Court laying down a rule that reduces this power below the level the vagueness of the situation permitted it to hover.

In times past, district court judges have similarly avoided claiming that they are, effectively, Super-Presidents who can overrule the president by their own sole authority. And do note that the Supreme Court has nine members, and ever appeals decision is made by at least three judges (if not the full court sitting en banc, as often happens in major cases involving constitutional questions), whereas one little Hawaiian judge presumes to have All The Power.

But that was before. That was before Trump, when the left (and pseudo-right) decided to throw out all the rules in order to, purportedly, save the rule of law. They had to burn the constitutional village to save it; they had to burn down the pillars of ordered liberty in order to, well, burn them before Trump could maybe burn them first.

And now the Hawaiian judges have pushed things to their absolute breaking point, and I think they'll get a slap down that limits their power. A clear rule will replace the vague understanding they've been working under, and the Reign of the Hawaiian Judges will end.

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posted by Ace of Spades at 02:16 PM

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