A Blow For Liberation From Left-Wing Judges

Since President Trump was inaugurated, leftists have brought a series of lawsuits on behalf of supposedly aggrieved parties–themselves, mostly–seeking to enjoin enforcement of administration policies. District Court judges in venues remote from the issue at hand, like a federal judge in Hawaii who purported to block implementation of the administration’s “travel ban,” have issued nationwide injunctions far exceeding the scope of any case or controversy actually before them (if any). This is a perversion of our legal system that encourages, to put it mildly, judge shopping. As a 41-year litigation veteran, I can tell you that judge shopping happens all the time. If a nationwide injunction is in prospect, the temptation to judge-shop is overwhelming.

This practice has come under nearly universal condemnation from judges and legal scholars, and many expect that before long, the U.S. Supreme Court will take decisive action to stop such overreaching by District Court judges. Earlier today, the Supreme Court took a step in that direction.

The Court ruled, on a party-line 5-4 vote, to grant a stay of a preliminary injunction barring implementation of the Trump administration’s “public charge” initiative, which simply enforces century-old federal immigration law. The administration’s rule shouldn’t even be controversial, but left-wing judges sought out by left-wing activists have put it in play. What is newsworthy is Justice Gorsuch’s blistering concurrence with the Court’s order, in which Justice Thomas joined:

On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.

These efforts have met with mixed results. The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia. The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally. But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits. Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit. And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.

If all of this is confusing, don’t worry, because none of it matters much at this point. Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit. The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.

Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.

More at the link. This issue is under the radar, but it is critical for Americans to be liberated from the tyranny of shopped political judges. Justice Gorsuch’s opinion today is a shot across the bow, but my guess is that before long, the Court as a whole will take decisive action to reform this abuse of the federal courts.

Responses