Attorney General Jeff Session pushed back against judicial activism and encroachment on the Executive Branch in his Oct. 15 speech to the Heritage Foundation.
Federal judges have been increasingly usurping power from the Executive, Sessions said.
“Too many judges believe it is their right, their duty, to act upon their sympathies and policy preferences,” Sessions said, calling judicial activism “a threat to our representative government and the liberty it secures.”
“In effect, activist advocates want judges who will do for them what they have been unable to achieve at the ballot box,” he said. “It is fundamentally undemocratic.”
He gave an example of a judge who told a Justice Department lawyer, “You can’t come into court to espouse a position that is heartless.”
Sessions acknowledged that a judge can have personal opinions on whether a government policy is or isn’t heartless.
“But they should decide legal questions based on the law and the facts—not their policy preferences,” he said.
The encroachment comes in other forms too, he argued.
District judges are increasingly issuing nationwide injunctions on government policies.
“In the first 175 years of this Republic, not a single judge issued one of these orders,” Sessions said. “But, they have been growing in frequency and, since President Trump took office less than two years ago, 27 district courts have issued such an order.”
One example was Trump’s temporary ban on travelers from five nations with risk of enemy combatants getting in due to background check limitations. District courts repeatedly blocked the travel ban before the Supreme Court struck down the injunctions.
In another form of encroachment, Sessions said “district judges are using purely legal disputes … to depose Executive branch officials and order disruptive and extensive disclosure of their internal deliberations and documents.”
New York district court judge Jesse Furman, for example, ruled that Commerce Secretary Wilbur Ross can be questioned regarding the administration’s move to restore a citizenship question on the 2020 census.
Democrats accuse the administration of political motives because the citizenship question would mean that illegal immigrants in coastal Democrat strongholds will not be counted in the census. Affected states will, as a result, be allotted fewer House representatives.
Sessions argued that the motives are irrelevant.
“The words on the page don’t have a motive; they are either permitted or they are not,” he said. “But the judge has decided to hold a trial over the inner-workings of a Cabinet Secretary’s mind.”
In other cases, judges have tried to depose government officials’ internal deliberations, Sessions said, referring to “a Cabinet Secretary’s handwritten notes taken during a high-level White House meeting.”
While final decisions are “fair game,” he said, the probing of confidential internal deliberations will have a “chilling effect.”
“Officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news,” Sessions said, citing the Supreme Court.
He added: “Subjecting the executive branch to this kind of discovery is unacceptable. We intend to fight this and we intend to win.”