Below is my column in the Hill on the slew of additional injunctions imposed by district courts last week. Some of these courts seem on a hair-trigger in ordering the record number of injunctions racked up in the first 100 days.
Here is the column:
“Here we are again.” Those words of Senior U.S. District Judge William H. Orrick may be the only uncontested line in his opinion this week, enjoining the Trump Administration from withholding federal funds to “sanctuary jurisdictions.”
In President Trump’s first term, efforts to implement sweeping changes on immigration and other issues were met by a slew of injunctions. In 2017, one of those orders was from Judge Orrick, an Obama appointee in San Francisco.
Trump has already faced a record number of national injunctions by district courts. His administration has objected to forum- and judge-shopping by political opponents by bringing the majority of such challenges in overwhelmingly Democratic states like California.
Such injunctions did not exist at the founding, and only relatively recently became the rage among district court judges. Under President George W. Bush, there were only six such injunctions, which increased to 12 under Obama.
Both Democratic and Republican presidents have complained about district judges tying down presidents like so many judicial Lilliputians. However, when Trump came to office, the taste for national injunctions became a full-fledged addiction. Trump faced 64 such orders in his first term.
Now, however, with less than 100 days in office, Trump 2.0 has already surpassed that number for the entirety of Biden’s term.
The Supreme Court bears some of the blame for this. Although a majority of justices, including liberal Justice Elena Kagan, have complained about district courts’ issuance of national injunctions, the high court has done little to rein in district court judges. On May 15, the justices are poised to consider the issue in a case involving birthright citizenship. Many hope that the justices will bring what they have consistently failed to supply to lower courts: clarity and finality.
Some judges have already seen their stays lifted by appellate courts. However, in just one day this week, three more major injunctions were issued on sanctuary cities, voter registration, and deportations.
Some of these orders appear premature and overbroad. Take Judge Orrick’s order. Again, Trump is targeting cities offering sanctuary to unlawful immigrants as imposing high costs on the country, including increasing burdens for federal programs and grants to these cities.
Orrick previously stopped that effort in the first Trump term, and he was affirmed by the United States Court of Appeals for the Ninth Circuit. However, the orders are not identical, and so far no action has been taken against these cities.
Under one of the orders, titled “Protecting the American People against Invasion,” Trump has ordered the attorney general and the secretary of Homeland Security to “evaluate and undertake any lawful actions to ensure that so-called “sanctuary” jurisdictions, which seek to interfere with the lawful exercise of Federal law enforcement operations, do not receive access to Federal funds.”
Orrick noted that the term “sanctuary jurisdiction” was not defined and dismissed the express reservation that such actions can only proceed to the extent that they are allowed under law.
The irony is that the opinion itself is overly broad and imprecise. There are indeed cases limiting the ability of the federal government to “commandeer” states and cities into carrying out federal functions. However, there are also cases upholding the right to withhold federal funds that contravene federal laws and policies.
The operative language in the order is the focus on sanctuary policies that “interfere” or prevent federal enforcement. There must be some accommodation for the federal government in refusing to pay for the rope that it will hang by.
Justice Robert Jackson famously wrote in Terminiello v. City of Chicago that the Constitution cannot be construed as a “suicide pact.” I have never been fond of that quote, which has often been used to justify the curtailment of individual rights. But these cases could bring a new meaning to the quote in immigration cases. If one accepts the Trump administration’s data, then continued funding of these jurisdictions might be more akin to being forced to pay for your own hit man and then calling it suicide.
There is a reason courts generally wait for these conflicts to become “ripe.” The administration could easily engage in impermissible “commandeering,” but it could also “evaluate and undertake” more focused and defensible withholdings of federal funds. Judge Orrick decided not to wait to find out.
These are difficult questions, but the Supreme Court can reduce these cases by actually ruling with clarity. The court has often left these issues mired in ambiguity, kicking cases like cans down the road for any final resolution.
Consider the order out of the District of Columbia blocking an effort to change federal voting forms to require proof of citizenship. Trump campaigned on the issue, and, according to a Gallup poll, 84 percent of U.S. adults are in favor of requiring voters to show such identification.
Judge Colleen Kollar-Kotelly barred the federal government from changing the standardized national voter registration form and to have federal voter registration agencies “assess” the citizenship of individuals who receive public assistance before providing them a voter registration form.
Kollar-Kotelly raises good-faith limits on presidents’ ability to regulate elections, a power mainly left to the states. However, this is a policy that does not necessarily impose a new condition on states.
After all, non-citizens are barred from voting in federal elections in all states. Again, there must be some ability of the administration to act to address a national priority in the funding of election reforms and practices. The question is whether the court will recognize such a federal interest.
The problem with some of these orders is not that they are without foundation, but that courts appear on a hair-trigger to enjoin the Trump administration on any subject whatsoever. There is a need to deescalate in both branches as we expedite these appeals. We are indeed “here again,” but this is not a good place for anyone.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School. He is the author of best-selling book “The Indispensable Right: Free Speech in an Age of Rage.”
Time for the Executive and Legislative Branches to snap the Judicial back in line.
OMGeee. It’s so way past time, my darling BillyG. Apologize for the familiarities, I mean no offense.
Judges issuing these injunctions are rich; live in toney neighborhoods; socialize with the rich; are immune from injunction effects. Plus, if they follow the law, they will be ostracized by friends, family, neighbors, and collogues. For these judges, it’s a lot easier to rule against President Trump and his 77 million-plus voters than it is to follow the law. Just ask Professor Dershowitz about the price he paid for taking principled stances.
You don’t know that as a fact. You don’t prove with documentation. Stop lying.
ATS – you are really debating this ?
Idiots like you who beleived the collusion delusion was real, that covid came from a wet market, that masks worked, that the hunter biden laptop was russian disinformation ?
None of this and much more was ever supported by evidence.
Thank you Mr. Say, I really enjoy your comments.
Of course FDR had a similar problem when a very conservative SCOTUS struck down several of his early initiatives . Some were quite radical and needed to be struck down but the court seemed to be holding up the changes needed to get a moribund economy going. Things started to lighten up when FDR made plans or just talked a lot about packing the SCOTUS. There was a lot of back and forth with congress about doing that and a heavily democratic House and Senate convinced him not to pack the court. Suddenly the SCOTUS seemed more amenable and less obstructive.
I don’t know if it was just a real effort to pack the Court or just Kabuki theatre that was there to send a message to the court but it worked.
Trump, The Speaker, and Senate Majority Leader could launch a full throated production of bringing down the Filibuster, packing the SCOTUS, creating new circuit courts and placing, by law, all sorts of new constraints on the courts “inferior” to SCOTUS. Which the constitution does allow. If that does not shake up the lower courts then ditch the theatre and actually do it.
I would love to seem them arrest several more judges but why do that when the Constitution has exactly the tools to break this logjam.
Another option would be for the Senate Majority leader to say the blue slip tradition on US Attorneys will no longer be observed and start placing some real fire breather conservative federal attorneys in California, Illinois, New York, Colorado, Oregon, Washington, Minnesota and Massachusetts for a start.
I don’t remember seeing anything about blue slips in the Constitution. Also this would probably make Chuck Schumer turn Blue (appropriate) and have a cardiovascular event.
Also put George Soros and Reid Hoffman on the terror watch list for several days and then take them off saying it was “unapproved” and a “mistake”.
You know you can threaten radical and illegal things but never do them and still get results.
The courts during FDR struck down unconstitutional laws passed by congress that FDR had implimented and that were NOT working.
FDR threatened the courts, they caved and vastly and unconstitutionally expanded the power of the executive.
FDR did act to restore the economy – as did Hoover, nearly every action of FDR originated with Hoover, and universally they made things worse not better.
The federal govenrment does not have the power to make the economy work.
But it does have the power to harm it.
The great depression in the US lasted longer than anywhere else in the world and was deeper than anywhere else in the world.
FDR uniquely managed to have a recession in the midst of a depression.
John Say-that is true. Thats why he lost badly in the midterms of 1938 and a combination of Republicans and Conservative democrats brought the new deal to a close. World War 2 saved the US economy. Many of FDR’s iniatives deserved to be stopped (as I mentioned) but his threats to the court seemed to decrease the courts resolve. Thats what I was alluding to. Not that I approved of FDR.
Hear, hear…or here, here.
Trump is issuing blatantly illegal orders and actions. So of course there will be many injunctions. And you can’t expect lawyers to file in 12 different districts to fight one illegal order.
He is not.
Blatency is not a legal principle.
In the sanctuary city case, I don’t see how there is standing, if no action has been taken against any city. The EO instructs the attorney general to assess whether action is appropriate. Unless and until action against a city is taken, there is no injury. The judiciary has no business policing activities entirely within the executive branch.
Nationwide injunctions issued by district court judges are problematic. All you need is one, even if others find no basis for it. Their proliferation delays implementation of policy and floods the emergency dockets of the circuit courts and Supreme Court.
But they can be a force for good, when you think there is clear executive branch overreach. For example, I liked them in the vaccine mandate and free speech cases. So eliminating them entirely might be a mistake.
Perhaps a solution would be to establish a new court to review promptly the imposition of any nationwide injunction or its equivalent by any district court. The legislation creating the court would define the standard to be met for the injunction to be upheld. This would provide a degree of discipline, and national uniformity, and, if appeals from its decisions were difficult or not allowed, would relieve the circuit courts and Supreme Court of much of their emergency dockets.
I agree that a codified system to handle requests for nationwide injunctions is needed. I suggest that the case be heard not by a single district judge, but by a panel of three from different circuits.
Then you would be able to cite exactly what is illegal about those actions.
If you are in the US illegally you can be deported BY LAW, There is nothing illegal about deporting illegal aleins.
The president is required to use federal revenues to acheive the policy goals in the budget.
Nowhere is he required to do so wastefully, or fraudulently.
Nowhere is he required to spend for purposes not authorized by congress because a prior president cheated.
The president is the cheif executive of the country – the determination of the federal staff needed to accomplish what congress has budgeted is his – not the courts.
There are very few instances in which Trump has exceeded his constitutional authority.
I expect he will lose the birth right citizenship EO 9-0.
But those instances are rare – far rarer than the blatantly unconstitutional EO’s of Biden spending money congress did not authorize.
No, he is not. That is just more MSM garbage and gaslighting you blindly believe.
The problem this situation surfaces is that the federal government is nothing more than a huge money pump.
It sucks trillions of dollars from taxpayers and sprays those dollars willy-nilly to recipients “not in the national interest.” We’ve seen this with the largess provided to universities, sanctuary cities, USAID, and countless others.
I don’t know that the financial crisis the country faces can ever be resolved until this huge wealth (and borrowing!) transfer is terminated.
Good point as federal money is national money from the pockets of non-sanctuary cities. Common sense…sanctuary CITIES
Some (many) might say this is the result of the 17th Amendment and the Senate no longer protecting the powers and interests of the states.
Professor Turley, at what point do you concede that the actions of the Judicial Branch equate to a clear effort to destabilize and over throw the Executive Branch? While the clear over reach is one thing, the coordinated and repeated actions of TRO and PI to stop clearly Executive Branch functions. Moving to a crawl and halt any efforts to counter steer the Country from dozens of years of abuse and use of the Federal Government to enact “social change” and demographic make-up for the clear purpose of undoing the Constitution Republic? There can be no other sane reason for this clearly planned action. Time will tell if we as a Country survive this action of Judicial Tyranny and possibly Sedition.
At what point do you understand many of trump’s actions are unconstitutional.
No, they aren’t.
Proof would help
The point at which the Supreme Court deems them so. Not the point at which some pinhead like you says they are.
It is the Constitution which is supreme, not the opinions of any branch of government.
Do you realize that what you are advocating puts the judicial above the Constitution itself? Do you get that???
And you know this how?
Repeating MSM lies again and again will not make what you say come true.
Is the Judicial Branch working toward their own demise? We are watching as activists lower court judges subvert Article II powers and the will of the people. The people overwhelmingly oppose the illegal aliens invasion facilitated by Biden and Democrats. We voted to end Democrats lawless open borders and to remove all illegal aliens from our nation.
To the vast majority of Americans don’t care if illegal aliens are violent criminals or just here illegally. The majority what’s them removed. The majority of America has determined them to be a threat to National Security and our financial wellbeing. If the Supreme Court does not end the judicial insurrection immediately they risk losing their legitimacy and our nation’s future.
The Court by dragging their feet are signaling that they may very well be a part of the problem and not the solution the Constitution requires of them.
I don’t believe they are risking anymore. They have lost all credibility and yes, I believe they are part of the problem.
I agree, Jane — I won’t call you plain. 🙂
“[King Dorito] has already faced a record number of national injunctions by district courts.”
When they “flood the zone”, they should expect a flood of injunctions.
“His administration has objected to forum- and judge-shopping by political opponents by bringing the majority of such challenges in overwhelmingly Democratic states like California.”
Yes, I’m sure Matthew Kacsmaryk would vehemently disagree with judge-shopping.
I love Democrats digging themselves in a hole
Definition
President: the person who has the highest political position in a country that is a republic
I’m supposed to be surprised. If anyone has been paying attention the aka “justice” system has come after Trump since Traitor 44 and the Deep State targeted him… nothing new here just that’s it more in your face judicial corruption…
What the obama admin (IC community) did to President Trump people in his admin are despicable. Boasberg is part of this because he was on the FISA court at the time. FISC — unconstitutional.
When the umpires start playing the game, they lose their role as umpires. The Trump administration is brilliant in designing a plan by which the left-leaning judges will essentially destroy themselves by succumbing to the lure of politics. But this removes them from being judges and reveals their true agendas. Ultimately, the Supreme Court, in its role as the top court in the land, will have to rule. When that occurs, it’s bye-bye nationwide injunctions. They have no basis in constitutional law or jurisprudence, and the judges who issue them should be smacked down and put in their rightful place. If you want to be a politician, take off the black robe and run for office. Give the people, the rightful owners of this country, a chance to say what they want and expect from you. Most umps if they tried to be players would fail just like most judges would fail if they tried to be pols. Stay in your lane!
JJC,
Well said. These leftist, Democrat activist judges are painting themselves into a corner. The SC will have to rule and have to rule for law and order in clear, concise language that prevents any kind of loopholes that can be exploited. How will our leftists friends react is anyone’s guess.
The solution is simple. A “right/Right” leaning District Court Judge should issue a nationwide injunction lifting all nationwide injunctions! Said Judge should keep doing this unless/until the Supreme Court rules that nationwide injunctions are unconstitutional.
Wonder why you’re not a lawyer? I’m not.
Wonder why no one in this comments’ section think you have a brain…I don’t!
These Judges and Courts are Left Wing DEM controlled and many of the Judges are totally unqualified, such as in Wisconsin, Maryland and the hard core I hate Trump Judges of DC. A lot of the Blame is due to the Supreme Court and Justice Roberts as well as Congress. Many of these Judges should not be Judges, a lot of them do not know the law, based on the hearings in the Senate, many could not answer simply questions by Sen. Kenndy. Supreme Court and Congress must come down hard on the nationwide injunctions. Supreme Court must tell the Courts they do not run the Gov’t.
“Many of these Judges should not be Judges, a lot of them do not know the law, …” Neither do you.
Apparently…neither do you.
Isn’t it the case that Congress could nearly immediately (in May, with effect by end of year) change the Federal Rules of Civil Procedure to restrict federal district courts from issuing nationwide injunctions?
HR 1526 Limiting Rogue Judges Emergency Injunctions, already passed the House and is headed to the Senate. They need to get off their duff and pass it today.
The administration is acting politically, which is their job. You cannot remove politics from execution of the law. They are elected officials for that reason. Some of these judges are acting politically. It is not their job. No one elected them. They were appointed to judge cases according to the law, even if they don’t like it. It should have nothing to do with politics.
If I read your column as written, you indicate that SCOTUS has gone full blurry and indecisive. That is a consequence of weak leadership at the court. Three justices solid on the left seem to be solid left, four pretty much favor strict legal construction, one that flits around, and the Chief, who’s worried whether in history books he will get a full paragraph of copy of just a footnote.
“That is a consequence of weak leadership at the court. ..” No it is not, it is policy. Can’t imagine an anon being constitutional lawyer and posting nonsense here.
It seems that these judges don’t really care about Americans or America anymore. Don’t they have to read the Constitution? And who is paying for all these legal fees that they are incurring? Seems that they will not bend until they break the necks of all citizens to their will — no matter how wrong they might be. What do process did the illegals have when they entered our country and now, these judges are worrying about fairness. Here is a simple question for those who came to this country illegally — do you have proof of citizenship, proof of legal entry? If not, they can be shown the plane that will take them home. Perhaps it is time for Biden to be put on ‘trial’ for what he did to this country — and charge his minions for obstruction — especially Kamala — the border Czar. She was a disgrace to the office and played foul with our Constitution. It is amazing that anyone can really believe she would have made a good president. How about this for fairness — every registered Democrat should be double taxed to pay for the housing, food, and handouts given to the illegals. Perhaps then they will actually be able to stand for their convictions. Right now they are voicing their objections — something they would like to deny those they disagree with.
The more the Robert’s Court acts as it is, the more it harms this country. Most people deal better with disappointment than uncertainty.
No mention of Trumps acts, that caused it all. Why’s that?
This particular Anonymous is giving a banal, juvenile, nasty, dumb and unresponsive reply to almost every comment in order to just be a little gnat biting at the adults in the room. Each reply is dumber than the previous one.
hullbobby….completely agree.
as is yours. Stop being a karen.
There is a reason courts generally wait for these conflicts to become “ripe.”
When I hear “ripe”, I immediately think of “standing”. Many of the 2020 election integrity lawsuits filed by the states were denied for lack of standing. Isn’t that another way to indicate the challenged law hasn’t been proven to have “ripened” or caused harm?
I am impatient with the Left’s nonsense at this point. They are not “protecting democracy.” There is a small, but growing, part of me that says Trump should arrest these district judges and throw them in Leaveworth. Yes, I know where that leads. Damn the torpedoes.
I think the blame lies primarily with Congress and SCOTUS. Both bodies seem to be unwilling to be decisive. Congress should immediately cut $2T from the budget and pass legislation that clarifies and funds Trump’s immigration actions. How about halt ALL immigration untill ALL illegals have been deported?
SCOTUS likewise needs to address underlying issues head-on instead of producing wishy-washy narrow rulings that leave open the larger issues that led to each case. The larger issues are their job.
OldFish, instead of arresting these judges, Trump should ignore any national injunction until upheld by SCOTUS. SCOTUS and Congress should also bring clarity to this issue.
Olly, Your approach is more conservative and would be just fine as a first step. But throwing the feckers in prison with TdA would be far more satisfying.
I’m with Olly. Ignore the injunctions until SCOTUS says you can’t and let the people see who is protecting the nation and who is protecting illegals and the judicial power grab.
Works for me…
HullBobby, OldFish, OLLY,
I get your meaning but I think as this continues it will become such a pressing issue, the SC will have to take it up and rule for law and order, nationwide injunctions are un-Constitutional and put these radical leftist, activists judges in their place. Meanwhile, Democrats continue to to fight for illegals, ignoring US citizen victims and look like a bunch of dupes.
Agreed. It’s time.