Attorney General William P. Barr, in a speech this week, took aim at the growing trend of unelected federal judges vetoing presidential actions by issuing sweeping nationwide injunctions against government policies.
These nationwide or “non-party” injunctions, which are relatively new in the American experience, reach beyond the controversy being litigated and allow judges to impose their will in parochial or regional disputes on the entire country.
According to the Department of Justice, an average of 1.5 such injunctions were issued each year against the administrations of Ronald Reagan, Bill Clinton, and George W. Bush. Under Barack Obama, the average rose to 2.5.
But 20 injunctions, representing an eightfold increase over the Obama-era average, were issued against Donald Trump’s administration during its first year.
In Supreme Court Justice Clarence Thomas’s concurring opinion last year in Trump v. Hawaii, a landmark decision that upheld Trump’s Presidential Proclamation 9645, which banned high-risk travelers from Islamic terrorist-infested nations, he wrote that nationwide injunctions, “are beginning to take a toll on the federal court system.”
They are “legally and historically dubious,” he added.
“I am skeptical that district courts have the authority to enter universal injunctions,” Thomas wrote.
“These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.”
With these national injunctions “the fundamental constitutional rights of hundreds of millions of people throughout the nation are being flicked on and off like a light switch,” Michael T. Morley, assistant professor at Florida State University College of Law, said earlier this year.
“An injunction is issued. It gets stayed. The stay gets vacated. An emergency appeal to the Supreme Court. And it’s almost like a game, and fundamental constitutional cases that are already important enough, that are already controversial enough, are now being barreled through the judicial system.”
In remarks before the American Law Institute on May 21, Barr said that although the framers of the Constitution were concerned that an unelected judiciary would encroach on the prerogatives of the two other branches of government, they believed, as Alexander Hamilton wrote in Federalist 78, that “the least democratic branch would also be the ‘least dangerous’ branch because courts have ‘no influence over either the sword or the purse … neither force nor will, but merely judgment.’”
But today “that assurance does not instill much confidence,” Barr said.
“We have seen over time an expansion of judicial willingness to review executive action. Then, combine that with the strategies of sophisticated public-interest lawyers and the aggressive practices of some courts, such as the novel and growing use of nationwide injunctions. The legal community and the broader public should be more concerned, particularly about this trend of nationwide injunctions.”
Americans should be concerned about the courts’ refusal to allow Trump to wind down his predecessor’s program, the DACA (or Deferred Action for Childhood Arrivals) program that granted legal status to aliens brought to the country as minors, Barr said.
DACA, which shields between 700,000 and 800,000 noncitizens from removal from the country, is deeply unpopular with conservatives and constitutionalists who insist the Constitution gives Congress, not the president, the power to create immigration laws.
Under political pressure to carry out immigration reforms unilaterally, in October 2010, Obama resisted acting on DACA, saying: “I am not king. I can’t do these things just by myself.”
With “respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” he added in March 2011. In May of that year, he said he was unable to “just bypass Congress and change the [immigration] law myself. … That’s not how a democracy works.”
But then, Obama had a change of heart. He unilaterally created DACA after Congress refused to pass the DREAM Act, and extended work authorization to those who would have been covered under the never-approved DREAM Act.
Barr explained that when the Trump administration said in 2017 it would end DACA, two federal judges in California and New York blocked it from doing so, even though the program is of highly dubious constitutionality.
Now, more than halfway through Trump’s term, “the Administration has not been able to rescind the signature immigration initiative of the last Administration, even though it rests entirely on executive discretion,” Barr said.
Nor has the Supreme Court been helpful, he added.
“The Justice Department has tried for more than a year to get the Supreme Court to review the lower-court decisions ordering us to keep DACA in place,” he said. “But the court has not granted any of those requests, and they languish on its conference docket. Unless the Court acts quickly and decisively, we are unlikely to see a decision before mid-2020 at the earliest—that is, right before the next presidential election.
“It is hard to imagine a clearer example of the stakes of nationwide injunctions.”