‘Even the Chief Justice of the United States must convince at least four of his colleagues to bind the Federal Government nationwide…’
(Joshua Paladino, Liberty Headlines) Attorney General William Barr criticized the recent rise in nationwide injunctions, a tool that lower federal courts use to legislate from the bench, during a May 21 speech to the American Law Institute.
Barr said federal district courts have issued 37 nationwide injunctions since Donald Trump became president. Federal courts issued only two nationwide injunctions during President Barack Obama’s first two years in office.
For the first 175 years in America’s history, federal courts did not issue one injunction.
A D.C. Circuit Court started the unconstitutional policy-making in 1963.
“Some say this proves that the Trump Administration is lawless,” Barr said. “Not surprisingly, I disagree. And I would point out that the only case litigated on the merits in the Supreme Court—the so-called “travel ban” challenge—ended with President [Trump]’s policy being upheld.”
The Supreme Court overturned 79 percent of all cases that it reviewed from the 9th Circuit Court.
Judicial partisanship and anti-Trump activism have led to more nationwide injunctions, but the practice threatens much more than the current administration’s policies.
They are flouting what Barr called the “bulwark against tyranny in America,” the separation of powers.
“Nationwide injunctions undermine the democratic process, depart from history and tradition, violate constitutional principles and impede sound judicial administration—all at the cost of public confidence in our institutions, and particularly in our courts as apolitical decision-makers dispassionately applying objective law,” Barr said.
Nationwide injunctions allow district courts to invalidate laws and determine enforcement procedures—roles reserved for Congress, which wields the legislative power, and the President of the United States, who wields the executive power.
The most “remarkable example” of a nationwide injunction, as Barr described it, is the Deferred Action for Childhood Arrivals program.
The program began after a decade of debate over the DREAM Act led to Congress doing nothing. The act would have provided permanent residency to illegal aliens who came to the United States as minors.
Since Obama believed Congress not passing the DREAM Act meant the institution was “broken,” he took executive action.
Barr said Obama ordered the Department of Homeland Security to take a “non-enforcement posture” toward illegal aliens who arrived in the United States as children.
Obama made a policy decision—a controversial and likely illegal decision not to enforce immigration laws.
When Trump took office—in large part because voters were upset that Obama decided not to enforce immigration law—he said he would “would wind down DACA.”
“Two district judges in California and New York have nevertheless issued nationwide injunctions against the rescission—that is, effectively requiring the government to reinstate DACA notwithstanding the President’s contrary exercise of discretion,” Barr said.
He listed three bipartisan reasons to oppose nationwide injunctions.
First, presidents cannot enact the policies that they promised to voters.
“We are more than halfway through the President’s term, and 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.
Second, injunctions “inject courts into the political process,” he said.
“[O]nce a district judge forced the Executive Branch to maintain DACA nationwide for the indefinite future, the President lost much of his leverage in negotiating with congressional leaders who wanted him to maintain DACA nationwide for the indefinite future. Unsurprisingly, those negotiations did not lead to a deal.” he said.
Third, injunctions “inspire unhealthy litigation tactics.”
“Rather than an orderly pattern of litigation in which the Government loses some cases and wins others, with issues percolating their way through the appellate courts, we have an inter-district battle fought with all-or-nothing injunctions,” Barr said.
As Barr noted, this leads Republicans to find conservative judges in Texas willing to issue injunctions and liberal judges in California and New York willing to issue them, rather than litigating issues on their constitutional and legal merits.
Barr argued that no person in the United States should have unilateral “nationwide power” to create policies except the president.
District court judges exercise more power than Supreme Court judges because they act alone.
“Even the Chief Justice of the United States must convince at least four of his colleagues to bind the Federal Government nationwide,” he said.
Barr described the courts as an institution to “protect individual liberty” in individual cases, not an institution “to inquire how the Executive or Executive officers perform duties in which they have a discretion.”