Will the Supreme Court Rein in Rogue Judges – or Rubber-Stamp Them?

The topic of discussion for this Constitution Monday concerns the oral arguments heard by the U.S. Supreme Court last Thursday in the case Trump v. CASA Inc. This case as well as Trump v. Washington and Trump v. New Jersey concern President Donald Trump’s executive order to end birthright citizenship for the children born to illegal aliens.

The Supreme Court is expected to decide on this matter by late June or early July. However, its decision may be to block the order or it could reign in the federal judges who meddle in responsibilities of the Executive Branch. Joseph MacKinnon discussed the court proceeding in his article published in The Blaze. 

Trump issued the executive order ending birthright citizenship on Jan. 20.

Days later, a Seattle-based U.S. district judge, responding to a lawsuit brought by four Democrat-led states, deemed the order “blatantly unconstitutional,” and slapped it with a nationwide injunction – one among the 40 issued in recent months that have prompted accusations of a “judicial coup.” A Biden judge and an Obama judge similarly blocked the order before courts ruled on the legal merits.

Denied additional sets of eyes on the matter by federal appeals courts, the Trump administration asked the U.S. Supreme Court in March for a partial stay but also drew the high court’s attention to the efforts of district judges to “govern … the whole Nation from their courtrooms.”

Attorneys for the government noted in their application for a partial stay that “such universal injunctions, though ‘a relatively new phenomenon,’ have become ubiquitous, posing ‘a question of great significance that has been in need of the Court’s attention for some time.’”

The Congressional Research Service indicated there were at least 17 cases of national injunctions between Jan. 20 and March 27. That number has since risen to at least 40 – including 35 from the same five judicial districts. According to the government’s application, district courts issued more nationwide injunctions and temporary restraining orders in the month of February than through the first three years of the Biden administration. Throughout the entirety of Barack Obama’s presidency, only 19 were issued.

Attorneys for the government argued further that nationwide injunctions, which have “reached epidemic proportions since the start of the current Administration,” transgress constitutional limits on courts’ powers; are incompatible with foundational limits on equitable jurisdiction; are bad for the rule of law; risk the perception of the federal courts as an apolitical branch; and “compromise the Executive Branch’s ability to carry out its functions, as administrations of both parties have explained.”

“This Court should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched,” wrote the government’s attorneys. “Only this Court’s intervention can prevent universal injunctions from becoming universally acceptable.”

The government’s attorneys had only one request of the Supreme Court: “Narrow down injunctions to the actual parties in the case. According to Dr. John C. Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, there are “both conservative and liberal justices on the high court” who have “previously criticized the practice of single federal district courts lobbing nationwide injunctions to block policies enacted by the political branches. One of them is Justice Elena Kagan who reportedly suggested that “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for … years.” Of course, she was defending a Democrat president’s policies.

There was some discussion during oral arguments about the legality of the order, what it would look like if partially implemented, and the government’s primary contention that the Citizenship Clause of the 14^th Amendment related to the children of former slaves, not those of illegal aliens who – as U.S Solicitor General D. John Sauer put it – “weren’t even present as a discrete class at that time.”

Sauer assigned more energy, however, to hammering home the point that the nationwide injunctions are a “bipartisan problem” that exceed the judicial power granted in Article III of the Constitution; require judges to make “rushed, high-stakes, low-information decisions”; require the “government to win everywhere while the plaintiffs can win anywhere”; and “prevent the percolation of novel and difficult legal questions” in the lower courts.

The success of Sauer’s efforts could be seen in the seriousness of the justices in considering “the legal basis for and impact of scrapping universal injunctions as well as alternative tools for expeditious legal action, including class action and certiorari before judgment.

Justice Samuel Alito expressed a wish to focus temporarily on “the abstract question of universal injunctions” as he suggested that the 680 district court judges are “sometimes … wrong” even though “dedicated and scholarly.”

“All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that ‘I am right and I can do whatever I want,’” said Alito. He also noted that judges sitting on a “multimember appellate court” could hold back the “occupational disease” but there are few restrictions or checks on “the monarch of that realm.”

Another part of the discussion revolved around the fact that “we survived until the 1960s without universal injunctions” (Justice Clarence Thomas). Chief Justice John Roberts noted that the Supreme Court has been able to act swiftly in cases needing its attention, which can achieve a similar goal and make a nationwide injunction unnecessary.

There are no guarantees about how the Supreme Court will decide. According to Eastman, “Whatever the court decides, the consequences will ripple through the hundreds of lawsuits filed against the president’s executive actions. At stake is nothing less than the legitimacy of the last election – and whether unelected district judges can override the policies chosen by the American people.”