By Tank Murdoch
(TNS) For the first 175 years of our country’s existence, not a single federal judge issued a single “nationwide injunction” — that is, an action aimed at blocking the Executive Branch from implementing a policy or order anywhere in the country.
But beginning in the 1960s, federal judges have increasing utilized nationwide injunctions to block what may political observers believe are not necessarily unconstitutional or illegal acts, but policies they simply don’t agree with.
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Slowly at first, judges began issuing an average of 1.5 such injunctions per year against the administrations of Presidents Ronald Reagan, Bill Clinton, and George W. Bush.
In his eight years in office, Obama faced only 20 nationwide injunctions. But in the age of President Donald Trump, they have exploded: In his three years in office, 55 nationwide injunctions have been issued by federal courts featured judges.
Clearly, this practice is out of hand.
“When a federal court issues an order against enforcement of a government policy, the ruling traditionally applies only to the plaintiff in that case. Over the past several decades, however, some lower court federal judges have increasingly resorted to a procedural device—the ‘nationwide injunction’—to prevent the government from enforcing a policy against anyone in the country,” Attorney General William Barr wrote in The Wall Street Journal in September.
“It is indeed well past time for our judiciary to re-examine a practice that embitters the political life of the nation, flouts constitutional principles, and stultifies sound judicial administration, all at the cost of public confidence in our institutions,” Barr concluded.
On Tuesday, the Senate Judiciary Committee took up the issue of nationwide injunctions, with panel members saying they are considering legislation aimed at ending the practice.
“I don’t know how to fix it, whether we need legislation or the courts can find a way to correct this problem, but somebody needs to fix it because I don’t think you can run the country this way,” committee chairman Sen. Lindsey Graham (R-S.C.) said, adding that the orders are “creating chaos in our courts, chaos in policy.”
Barr agreed last year.
“Proponents of nationwide injunctions argue that they are necessary to ensure that the law is uniform throughout the country. But the federal judiciary wasn’t made to produce instant legal uniformity. To the contrary, the system—in which local district courts are supervised by regional courts of appeal—was constructed to allow a diversity of initial rulings until a single, national rule could be decided by the Supreme Court,” he wrote.
As The Epoch Times reported, unsurprisingly, Republican senators are in favor of finding a way to end the practice because, as usual, it’s the GOP that is the party of the Constitution. Democrats, the party of mob rule and ignoring the Constitution, not so much:
The top Democrat in the committee, Sen. Dianne Feinstein (D-Calif.), said nationwide injunctions had protected more than 700,000 recipients of the Obama-era Deferred Action for Childhood Arrivals policy, or DACA. She added that the act of balancing the competing interests would be difficult to achieve.
“I can see good in the injunction because it protects something done by Congress and signed by the president and that becomes law in our country, whether that be DACA or any other bill, but if you try to balance, it can be difficult,” Feinstein said.
Yeah, except that DACA was unconstitutional. Obama said repeatedly before he issued it in 2014 that he didn’t have the authority as president because the order changed federal immigration law, and only Congress can do that with new legislation.
Indeed, the only reason that the order hasn’t been rescinded the same way it was implemented — via executive order — is because activist federal judges who like the program have blocked President Trump from doing so.
With nationwide injunctions.
One Democrat, Sen. Richard Blumenthal of Connecticut, actually made a great suggestion.
“Maybe the Supreme Court, if it’s concerned and we’re concerned, ought to set rules rather than the legislative branch,” he offered on Tuesday.
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That’s appropriate because it is the Judicial Branch fixing a problem with the Judicial Branch.
But whoever does it, clearly ending what has clearly become an out-of-control practice of issuing nationwide injunctions is necessary.
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