Justice Thomas Warns Against Power Grab by District Courts

Concurring opinion in travel ban case raises alarm over trial court judges' increasing use of nationwide injunctions

Supreme Court Justice Clarence Thomas raised concerns Tuesday about the increasingly common use of nationwide injunctions issued by federal trial court judges to block laws and policies.

It has been a favorite tactic of liberal activist groups that fancy themselves part of the so-called resistance confronting President Donald Trump. If plaintiffs can get a U.S. District Court judge to grant an injunction and apply it nationwide, they can gum up Trump’s policies for months or longer — even if they ultimately lose the underlying case.

This is what happened Tuesday when the high court ruled 5-4 to uphold Trump’s temporary ban on travelers from seven countries he deemed a security risk. Before the ruling, however, lower courts had blocked previous versions of the executive order from taking effect.

Thomas suggested in a concurring opinion that judges are abusing their authority.

“In sum, universal injunctions are legally and historically dubious,” the justice wrote. “If federal courts continue to issue them, this court is duty-bound to adjudicate their authority to do so.”

Some legal scholars have argued that it is improper for a single federal judge to block government action far beyond his jurisdiction except in extraordinary cases.

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“These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch,” Thomas wrote.

Nationwide injunctions have been used by both sides of the ideological divide. A federal judge in Texas, for instance, used the same tool to block then-President Barack Obama from implementing his quasi-amnesty Deferred Action for Parents of Americans (DAPA) program.

In writing about injunctions, Thomas raised an issue that South Texas College of Law – Houston professor Josh Blackman has written about.

“It’s significant because currently pending before the court is an appeal from Chicago on sanctuary cities,” he told LifeZette.

In that case, Senior U.S. District Judge Harry Leinenweber ruled that Attorney General Jeff Sessions lacked the authority to cut off law enforcement grants to the city because of its policy against cooperating with federal immigration authorities.

Blackman noted that the Department of Justice (DOJ) has argued that Leinenweber exceeded his authority in applying his order nationwide.

The 7th U.S. Circuit Court of Appeals granted a request from Attorney General Jeff Sessions to stay the nationwide aspect of the injunction, so it will apply only to the plaintiff, the city of Chicago, pending further consideration. The full bench of the appeals court will hear oral arguments over the scope of the injunction on September 6.

Judges have held up other Trump polices as well.

For instance, three different federal district judges issued orders prohibiting the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) anywhere in the country. The last ruling, by U.S. District Judge John Bates in the District of Columbia, ordered the administration to begin accepting new DACA applications. That applied far beyond his jurisdiction in the nation’s capital.

“Litigation has become a weapon on both sides.”

Blackman said blocking a law or policy nationwide makes sense in certain cases.

“In the abstract, a nationwide injunction is not an abomination,” he said.

But Blackman added that in a case like sanctuary jurisdictions, the different cities and counties have different policies. A ruling concerning one policy should be limited to that case, he said.

“There is no reason to apply that nationwide,” he said.

Andrew “Art” Arthur, senior fellow in law and policy at the Center for Immigration Studies (CIS), agreed.

“It is an issue. I think the Supreme Court needs to take a look at it,” he said. “I think Congress needs to take a look at it to make sure it is being used appropriately.”

The trick, Arthur acknowledged, is figuring out a way to separate when it is appropriate and when it is not.

“Regrettably, it has to be done on a case-by-case basis,” he said.

Related: The Five Judges Who Have Most Thwarted Trump’s Agenda

Said Joseph Tartakovsky, the James Wilson Fellow in Constitutional Law at the Claremont Institute: “It’s been a very large and live legal issue. It wasn’t invented to use against this administration.”

But Tartakovsky, who was Nevada’s first deputy solicitor general until this year, said the Trump administration has been the target of it more than previous administrations.

“Litigation has become a weapon on both sides,” he said.

Tartakovsky said there are reasonable arguments that a policy or law is likely unconstitutional should not take effect anywhere — and not just be blocked for a specific set of litigants. At the same time, he added, it means that Americans can be impacted by the decision of a single district judge they never have heard of and who sits in a different part of the country.

“It is, for many, a jarring power … It’s an extraordinary power,” he said.

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.

(photo credit, article: YouTube)

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