Adam Smith has a thought-provoking piece at The Dispatch on Trump v. CASA, the case before the Supreme Court on whether district courts have the authority to issue nationwide injunctions:
To understand the Supreme Court’s oral arguments last week in Trump v. CASA, on whether lower courts have the power to issue “nationwide injunctions” blocking President Donald Trump’s executive order ending birthright citizenship, it is useful to start with a seemingly mundane case decided almost exactly a decade ago, one that exemplified—and accelerated—the modern era of anti-administration lawsuits.
In Michigan v. EPA, a number of states and industry groups challenged the Obama administration’s regulations mandating stricter air-quality standards for coal-fired power plants. On its face, it was a garden-variety technical dispute over the Environmental Protection Agency’s rulemaking process, the kind of stuff that can easily put law students and young lawyers to sleep. (As an occasional law professor, I know this all too well.) The EPA issued its rules in early 2012 and lawsuits were filed immediately, but the lower court needed two years of briefing, oral argument, and further deliberations before ruling in favor of the EPA. Then the challengers went to the Supreme Court; eventually, in 2015, the Supreme Court ruled against the EPA.
Mr. Smith provides several interesting strategies for addressing the matter. Read the whole thing.
IMO the slug of the piece, “Do federal judges have too much power—or do presidents?”, presents a false dichotomy. My answer to the question would be that both federal judges and the president have too much power and fault resides in the same place: the Congress. Before you leap to your feet declaiming that the people are at fault, consider the most recent Gallup polling on the matter: only 48% of Americans approve of their own representatives. Where I come from 48% is not a majority.
The real solution to these problems is term limits. Short ones—just a couple of terms. I would also eliminate pensions for Congressional representatives and senators and, if that does not reduce the propensity to serve until you die in office, cut their salaries, too.
The short term solution, of course, is that district judges should not be empowered to issue nationwide injunctions, only injunctions within their own districts. That would reduce venue-shopping.
The judicial branch is the least democratic of the three branches. The Founders envisioned the judiciary as neutral arbiters of disputes and defenders of the Constitution. Sort of like Plato’s “guardian class”. If that has ever been the case, it hasn’t been the case for the last 50 years or more. After all Mr. Dooley, more than a century ago, observed that even the Supreme Court judges read the election returns. The judiciary is the tool our so-called representatives have used to enact policy without leaving their fingerprints on it and threatening their re-election changes. Venue-shopping and nationwide injunctions are just the latest strategies in that practice, Republicans getting their cases heard in Texas and Democrats in Washington.
The only way rule by the judiciary is democracy is when judges adhere strictly to the text of the written law, precedent, and the common law (another way of saying precedent). What we have now is not democracy. I don’t know what you’d call it.
Dave Schuler: The short term solution, of course, is that district judges should not be empowered to issue nationwide injunctions, only injunctions within their own districts… The only way rule by the judiciary is democracy is when judges adhere strictly to the text of the written law, precedent, and the common law (another way of saying precedent).
So,
ifwhen the President exceeds his authority under the law, there is no mechanism to stop him. The President can dismantle Congressionally created agencies without check, or unilaterally decide who is deserving of the right to habeas corpus.The judiciary has been doing this for years but it doesnt become an issue until Trump wants to be able to ignore judges? That should tell you something. Anyway, totally agree that both the judiciary and POTUS have way too much power/authority and the current SCOTUS seems intent upon furthering the unitary executive ideal ie have an authoritarian leader. The problem is that if you address the courts first there will be no real limits on the power of POTUS. The courts at least have to wait for cases to be brought to them.
Steve
There’s a reasonably good analysis of the practice here. 2/3s of the nationwide injunctions EVER issued have been issued against either the first or second Trump Administration.
Whether that is because the Trump Administrations have been operating lawlessly is an open question. Many of the nationwide injunctions issued by district courts judges have been stayed or reversed by the Supreme Court.
In general, I think it’s a bad practice. It encourages venue-shopping and that is precisely what has happened under both Democratic and Republican presidencies.
There’s the Supreme Court. And the Congress can do their own darned jobs rather than delegating authority to the executive branch.
Dave Schuler: There’s the Supreme Court.
To get to the Supreme Court, you have to go through the lower courts.
Dave Schuler: And the Congress can do their own darned jobs rather than delegating authority to the executive branch.
In a case such as USAID, they did. They created an agency under the law and then funded it. Now, it’s the president’s sworn duty to “take Care that the Laws be faithfully executed”.
That’s called “percolation”. It should be the norm. District court judges issuing nationwide injunctions should not be the norm.
After 40 years. Then they provided little or no oversight to the agency which rather clearly went far beyond agency’s authority.
Dave Schuler: That’s called “percolation”. It should be the norm.
Yes, it’s a general norm, but not one without reasonable exceptions. Ignoring the problem of an out of control president doesn’t make it go away. Trump has effectively dismantled whole sections of the government contrary to the will of Congress.
Dave Schuler: Then they provided little or no oversight to the agency which rather clearly went far beyond agency’s authority.
Clearly? Trump just waving his hands doesn’t make it true. It doesn’t matter, though, any more than your right to habeas corpus depends on Trump saying you’re a bad person.
The detailed budget for USAID keeps getting approved by Congress. The president can’t unilaterally change that, at least not in a republican system of government. Authoritarian governments are different, however.
Here’s an article on some of USAID’s abuses.
Dave Schuler: Here’s an article on some of USAID’s abuses.
The article (from libertarian Reason magazine) starts with a bunch of nonsense put out by the Trump administration. Even accepting the actual examples at face value, they represent only a fraction of what USAID does. Yes, along with many successful programs, there were failures too. But that doesn’t give the power to the president to ignore the law.
But Trump will tear it all down until they put a gilded Trump sign on the everything.
“There’s the Supreme Court. And the Congress”
We have already agreed that Congress does not and will not do its job(s). That leaves SCOTUS. That means that if Trump does something blatantly illegal/unconstituitonal, under your plan it would have to go through the initial courts and then all of the appeals. It could very well be a year or two and in the meantime there would be significant damage. If you want to start with the reining in of power start with POTUS. The courts are naturally limited to only the cases they see. POTUS has no limitations except, sometimes, the courts.
Steve