President Donald Trump has enjoyed great success in placing his nominees on the federal bench in 2019, although the year seems more likely to be remembered as a time of strong judicial resistance to the president’s agenda, particularly with respect to immigration policy.
In a speech on Nov. 15, U.S. Attorney General William Barr summed up the Trump administration’s aggravation when he passionately inveighed against the left-wing anti-Trump “resistance” movement that is “using every tool and maneuver to sabotage” the Trump administration, while systematically “shredding” norms and undermining the rule of law.
Barr said that “immediately after President Trump won election, opponents inaugurated what they called ‘The Resistance,’ and rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his administration.”
Barr said the legislative and judicial branches have encroached on the powers of the executive branch for years. There has been a “knee-jerk tendency [among Democrats and the media] to see the legislative and judicial branches as the good guys, protecting the people from a rapacious, would-be autocrat.”
Meanwhile, throughout the past year the president’s efforts to reform the immigration system, crack down on illegal immigration, and beef up the nation’s border security have been met with hostility throughout the federal court system.
Efforts to help U.S. Immigration and Customs Enforcement (ICE) personnel do their jobs have been regularly rebuffed in the courts. Trump’s move to block federal funding to so-called sanctuary jurisdictions such as Oregon that hinder ICE have been halted by federal judges.
For example, in August, U.S. District Judge Michael J. McShane of Eugene, Oregon, held that the Trump administration didn’t have lawful authority to impose conditions on millions of dollars in law enforcement grants provided by Congress. McShane was appointed by then-President Barack Obama in 2013.
McShane found the administration’s attempt to attach legal strings to the grants ran afoul of the 10th Amendment, which states that powers not specifically assigned to the federal government are retained by the states or the people.
In June, U.S. District Judge Indira Talwani of Boston turned federal courthouses in her state into sanctuaries for illegal aliens. She barred ICE agents “from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse.” Talwani was nominated by then-President Obama and confirmed in 2014.
Federal judges have also issued orders preventing the Trump administration from processing immigration applicants the way it prefers.
In April, San Francisco-based U.S. District Judge Richard Seeborg, appointed in 2010 by Obama, halted the administration’s program requiring asylum-seekers at the southern border to wait in Mexico while their claims are processed.
In October, three federal judges appointed by Democratic presidents blocked the Trump administration’s “public charge” rule aimed at making sure future immigrants to the United States can support themselves without becoming a burden on taxpayers.
The rule would give the government some leeway to deny green cards, which bestow permanent-resident status on individuals, if, according to the government’s methodology the individuals are deemed likely to become reliant on welfare programs. It would have no impact on asylees or those who already have green cards or have become U.S. citizens.
U.S. District Judges George B. Daniels of New York and Rosanna Malouf Peterson of Washington state both issued preliminary nationwide injunctions against the rule. Daniels found that the plaintiffs were likely to succeed on their claim that the administration violated federal law because the administration “[failed] to provide any reasonable explanation …”
The third judge, U.S. District Judge Phyllis J. Hamilton of California, took the unusual step of reciting in her opinion the Emma Lazarus poem, “The New Colossus,” which appears at the foot of the Statue of Liberty in New York Harbor, language that she acknowledged is not legally binding.
Daniels and Hamilton were appointed by then-President Bill Clinton; Peterson, by then-President Barack Obama.
In September, U.S. District Judge Anthony J. Trenga of Virginia, ruled the government’s Terrorist Screening Database (TSDB), a watchlist of more than 1 million known or suspected terrorists that includes only about 4,600 U.S. citizens, violates the constitutional rights of those included in it. The TSDB doesn’t provide “constitutionally sufficient procedural due process,” the appointee of then-President George W. Bush wrote.
In November, U.S. District Judge Denise J. Casper of Boston held that officials at U.S. ports of entry may not search international travelers’ electronic devices in the absence of suspicion that they have committed a crime, even though the administration said such searches had yielded actionable intelligence. Casper is an Obama appointee.
In May, U.S. District Judge Haywood S. Gilliam Jr. of San Francisco, appointed by then-President Barack Obama, enjoined the Trump administration “from taking any action to construct a border barrier” with reassigned U.S. Department of Defense funds in parts of Arizona and Texas.
In October, U.S. District Judge David Briones in Texas, who was appointed by then-President Bill Clinton, ruled that Trump’s Proclamation 9844 violated spending legislation approved by Congress that prohibits funds covered under the statute from being used for any project not specifically listed in the bill.
But the judicial resistance experienced by the Trump administration may soon be balanced out as more Trump-appointed judges find themselves on the federal bench.
That’s because the president has been filling judicial vacancies at the federal level at a record pace, something that will resonate for years to come as the judicial branch, and with it American jurisprudence, become more restrained and pro-limited government.
Lawrence VanDyke became the 50th Trump nominee to be confirmed to a federal court of appeal Dec. 11. He will serve on the 9th Circuit Court of Appeals, once a bastion of liberal legal thinking, which is now moving to the center as a result of the influx of new Trump appointees.
So far the Senate has confirmed 187 Trump nominees to so-called Article III courts, a category that encompasses the Supreme Court, U.S. courts of appeal, and U.S. district courts, according to The Heritage Foundation. Included in that total are the two justices Trump has placed on the Supreme Court. Two current justices are more than 80 years of age.
The average age of Trump’s appeals court judges is under 50 years of age, which is 10 years younger than the average age of then-President Barack Obama’s appeals court judges, suggesting they will stay in office longer.