by Daniel Horowitz
A district judge has as much power to “strike down” a national policy or statute and have it take effect outside his district as much as Congress has the power to adjudicate an individual bankruptcy case. That is to say, they have no such power at all.
Although we are suffering from a general constitutional crisis of judicial autocracy, the growing phenomenon of district judges issuing nationwide injunctions on broad national policies and laws – and having them recognized obsequiously by the other branches of government – is taking the crisis to an entirely new level.
Of course, the entire notion of the Supreme Court, much less lower courts, as the sole and final arbiter of every social and political question violates the entire underpinnings of the social compact, separation of powers, and a republican form of government deriving its powers from the people.
Judicial review, at best, grants judges a co-equal authority in interpreting the Constitution just for the purpose of an individual case with legitimate standing before the court as part of its dictate to exercise only the “judicial power.” However, the notion that courts would serve as the superior or exclusive word over all matters of national policy and apply individual cases as national law without opposition from the other branches is ludicrous.
The recent trend of lower courts overturning our national sovereignty and “striking down” Trump’s immigration orders and applying them outside of their respective jurisdictions demonstrates once and for all that courts are illegally usurping legislative power and the executive power of a policy veto.
As absurd as it was for the courts to bastardize the Immigration and Nationality Act, executive power, the Constitution, federalism, and sovereignty, the fact that they applied their decisions outside of their individual case or controversy, by definition, violates the separation of powers. Professor Samuel Bray explains this problem as follows:
The U.S. Constitution gives the Supreme Court and the lower courts “the Judicial Power.” Courts decide particular cases for particular parties. They do not decide abstract questions for all possible parties. Related to this is the principle that the federal courts have authority to give traditional equitable remedies. But the national injunction has no basis in the tradition of equity. For the first century and a half of the federal courts, there were no national injunctions.
Thus, what the courts were doing when “striking down” a national immigration policy is exercising a policy veto outside of an individual case or controversy – a power they manifestly do not hold. And as I’ve noted many times, these individual states or foreign nationals should never have standing to shoot at a federal immigration policy and settled case law proves this.
What is even more indefensible about the practice of nationwide injunctions is that litigants only have to win one time in one district in order to strike down a national policy. As such, theoretically, if in 90 districts the courts side with the government but in one district they side with the plaintiff, under (erroneous) prevailing practice, the executive action or statute is nullified. This is because we treat the ruling against the government as a de facto judicial veto, whereas those rulings dismissing the lawsuits are not viewed as affirmation or ratifications of the policy. This is fundamentally unfair and makes no sense.
It means that a political party can find a single judge at any point to nullify anything done by the president or Congress. It’s exactly what happened with regard to Trump’s immigration moratorium when several judges engaged in nullification and placed a nationwide injunction on the policy (which was nothing more than statute), but a Massachusetts judge upheld it. Yet, the administration treated the outcome as if the order was “struck down.”
In fact, this argument alone proves incontrovertibly that judges were never intended to serve as vetoes on national policy, especially regarding blatantly political issues. Judges don’t rip statutes out of the books or strike down executive policies; they merely grant relief to legitimate plaintiffs with valid and redressable grievances. However, the notion that such rulings would be regarded as binding law with the power of a legislature or veto of a president on the entire nation is absurd.
The proof is in our history. The fact that lower courts never issued injunctions outside of the individual litigants against the enforcement of federal actions or statutes for most of our history demonstrates why judicial review was never viewed as judicial supremacy. It’s no coincidence that courts didn’t begin this practice until the Warren era, when they simultaneously declared the federal judiciary supreme to the other branches (Cooper v. Aaron).
THE WAY TO END LOWER COURT FASCISM
It’s real simple: Lower courts have no veto power (nor does the Supreme Court for that matter, but let’s start small). Even if we accept egregious rulings in individual cases, there is no reason the Trump administration needs to treat these decisions as nationally binding precedent. If they don’t want to act so boldly, they should marshal support from Congress to use the power of the purse against these decisions.
Additionally, Trump has shown some signs of warming to elements of judicial reform. He said earlier this week that he’d support the effort to divide up the Ninth Circuit. However, this act alone, while limiting the scope of jurisdiction to California, could still undermine his national policy. Even a Ninth Circuit limited to California could still place a nationwide injunction on his immigration policies.
This is why Congress must also clarify through the Rules Enabling Act that lower courts have no power to issue injunctions outside their respective jurisdictions. This would be applied evenly to all administrations and regarding all types of policies.
Will this create a patchwork of precedent? Sure. But I’d rather live under a divided patchwork of tyranny than one uniform national veto of unelected judges.