What do you think of the three recent SCOTUS “emergency docket” actions? The editors of the Wall Street Journal remark on the decisions.
The three cases are:
- Donald J. Trump v. J. G. G. et al (5-4): an application to vacate the lower court ruling on removal of non-citizens to El Salvador
- Pause of an order by a lower court judge to reinstate fired federal employees (7-2)
- Administrative stay on decision by lower court judge to return a man erroneously deported
The editors conclude:
This will reduce cases that come before the Court on its so-called emergency docket and give different lower courts an opportunity to consider the merits before Justices do. The resounding and useful message to lower courts is to stay in your lane.
Unmentioned is that the first two actions were not taken along partisan/ideological lines.
We have not had the rule of law in this country for generations, maybe never. The entire American legal system, cops and courts, is corrupt and lawless, and needs a thorough purge and slap down. Term limits for judges is one necessity.
The US courts do not have the constitutional authority to review the legitimacy of acts of Congress nor of the President. That was an invention and usurpation of Marshall, and he should have been removed for it.
The Founding Fathers did not grant the US courts such powers, because English courts were subservient to the Crown, and there was no historical precedent for them. The language of the US Constitution also implies the courts are subservient to Congress, and not coequal.
In fact, no Common Law country allowed judicial review of acts of parliament until about a generation ago. The ones that have allowed it, especially the UK, have regretted it.
You wrote:
In fact in the Founding Fathers’ day courts did not possess the sole authority to interpret the law. The law could be interpreted by the executive, legislators, and even private individuals. I presume that would horrify many today.
There’s a kernel of truth in what you say. What we have is less the rule of law than the rule of lawyers, a somewhat different matter. One of the reasons I did not seek to follow my father in the practice of law was that I could see that lawyers were rapidly abandoning any notion of the primacy of their roles as officers of the court in favor of winning at all costs.
Another decision, Department of Education v. California, addressed the TRO issue I previously complained about. The SCOTUS instructed the Courts of Appeals to start reviewing TROs that bear the hallmarks of injunctions, seemingly completely contrary to the decision in the USAID docket case. Justice Barrett switched her vote.
(There were two other important rulings in that case: contractor claims for money damages belong in the Court of Federal Claims, not in the Article 3 courts, and courts must enforce Congress’ requirement that plaintiffs post a bond when obtaining an injunction)
Trump v. J.G.G. ruled that a writ of habeas corpus is the proper remedy to challenge immigration actions and that the proper venue is where the person is being detained. That’s pretty old law, the Latin stands for “You have the body” and originally entailed the jailer or prison warden bringing the prisoner before the judge to determine whether the imprisonment was lawful. The SCOTUS wasn’t inclined to change the rule with changing times. Since most immigration detention is along the Southern border, particularly Texas & Mississippi, venue will frequently be in the country’s most conservative circuits.
The fired federal employees case seems pretty weird. They just needed to get a fired employee as a plaintiff.
Erroneous deportation. It’s not clear in most of the reporting, but it was ok to deport the man from El Salvador, just not to the single country in which he was determined to be at risk (El Salvador). However, the immigration judge accidentally ruled that he couldn’t be deported to Guatemala instead. The government admits deportation to El Salvador was in error, but challenges the judge’s order that the POTUS must engage in diplomacy to get him back. I think the trial court will be overruled, but perhaps some lesser remedy might be in order.
Fully expect most of the lower court rulings against Trump to be overturned. Look at the make up of SCOTUS. Only the most outrageous stuff will not pass, but largely with 5-4 votes. However, if Republicans are suddenly against venue shopping does that mean they will aslo stop doing it? (LOL)
Steve
bob sykes: The Founding Fathers did not grant the US courts such powers, because English courts were subservient to the Crown, and there was no historical precedent for them.
That is not correct. The parliament has been supreme in England since the Bill of Rights 1689, while the Act of Settlement of 1701 removed the monarchy’s power over the courts. These two acts preceded the U.S. Constitution, so constitute precedent; and the language and process of removing judges are mirrored in the U.S. Constitution.
The courts in these cases are mostly adjudicating statutory causes of action created by Congress, namely the Administrative Procedure Act. Congress can change the law and there have been bills to amend that Act to clearly prohibit nationwide injunctions (and their effective variants) for at least the last seven years. Such nationwide remedies under the Act began to balloon in the latter part of the Obama administration, but took off under Trump and continued under Biden, though sometimes in the form of vacatur orders after a majority of the SCOTUS had indicated the practice needs to be reigned in.
The issues with the nationwide injunctions is that a case that arises nowhere in particular can be filed anywhere. It enables forum shopping. 100% of the nationwide injunctions against against Biden were entered by Republican-appointed judges and over 90% of those in Trump’s first term were entered by Democratic appointees. Since the injunction can be sought by anybody, a loss in one trial court does not foreclose a lawsuit by another individual against the government for the same relief in another jurisdiction. This also results in dueling nationwide injunctions like in the mifepristone cases.
I don’t think district court judge’s ideological or partisan biases are usually that material, but they are when facing novel first-time issues. In the Obama administration nationwide injunctions targeted LGBTQ+ policies, in Trump’s first term it was immigration, and for Biden it was COVID related. A lot of these trial court rulings were eventually overturned or at least stayed.
Didn’t realize until I finished that the House passed the bill on party-line vote, which suggests it won’t pass the Senate. Each Congressional term must open with the same prayer: “Lord, grant me the strength to do the right thing, but not yet!”
“I think the trial court will be overruled, but perhaps some lesser remedy might be in order.”
I was correct.
Ok, let me go on the record. SCOTUS rejected Biden’s student loan policy at least partially based upon the major questions doctrine. I am going to bet that the court ignores that doctrine and finds some way to justify Trump using the emergency tariff powers.
Steve