By Jon Dougherty
Tired of having to fight the lawsuit-happy Left over every single executive action, the Trump administration is set to unveil a new strategy aimed at preventing judges sitting on the lowest federal courts from issuing nationwide injunctions.
Set in motion last year, the plan comes as several Left-wing groups have managed to convince federal courts — most of them in the judicial activist bastion of the Ninth Circuit — to issue nationwide injunctions in cases that the U.S. Supreme Court eventually overturned.
The Hill reported:
Advocacy groups that have pushed judges to issue nationwide injunctions say they are necessary to protect people from policies they see as harmful, and some legal experts agree, arguing that the right to issue such actions is protected under the Constitution.
But opponents argue that injunctions should be applied more narrowly to groups that are directly impacted, saying the more liberal use of injunctions is hurting the judicial system.
Last week, Vice President Mike Pence said in a speech to the conservative Federalist Society that the Trump administration has been “unfairly” burdened with an outsized number of these rulings, often over policy decisions and objectives that are well within the authority of the Executive Branch to make.
“So I say to all those gathered here: For the sake of our liberty, our security, our prosperity and the separation of powers, this era of judicial activism must come to an end,” Pence said. “The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them.”
Knowing that the policy initiative itself is going to be challenged, that happens to be part of the administration’s strategy: The White House wants to be taken to court so that it can appeal its policy to SCOTUS and have the issue decided once and for all.
Supporters of the administration say that lower federal courts are routinely overstepping the constitutional boundary our founders hoped to place on them.
One of them is Samuel Bray, a law professor at the University of Notre Dame who has been vocal in his opposition to national injunctions. The Hill notes that he believes such sweeping orders “take the courts outside of their constitutional role.”
He said that district courts were established to rule on matters specific to certain parties, not the entire country. He said that if plaintiffs want rulings to apply to everyone, they can file class-action lawsuits.
“Everybody in the class will win or lose together,” Bray said. And he noted that if one party loses its case for a national injunction before one judge “someone else can take another bite at the apple in another court.”
Nicholas Bagley, a law professor at the University of Michigan, who also opposes nationwide injunctions, agrees.
“What I struggle with is why anyone would support handing to judges the authority to put a halt to important government programs just because they happen to get their knickers in a twist about a particular case,” Bagley said.
The Trump administration seeks to un-twist judicial activist judges’ knickers or, at a minimum, take away authority they were never supposed to have.
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