Contributor Post Created with Sketch. Lone Judge Controls US Immigration Policy for Nine Months

 

In October 2017, Federal District Judge Derrick Kahala Watson, appointed by Obama in 2013, issued a nationwide injunction against President Trump’s travel ban for people from seven countries in which Islamic terrorists are active. These countries’ governments are in such disarray they are not able to provide the US with sufficient records to properly identify and vet immigrants seeking to come to the US.

That’s right. One federal judge in Hawaii at the lowest level of the federal court system, with a mere four years’ experience, issued a ruling that prohibited the entire Executive Branch from enforcing the travel ban.

Last Tuesday, June 26, the US Supreme Court overturned Judge Watson’s ruling, upholding the President’s travel ban as squarely within the Chief Executive’s constitutional and statutory authority.

Justice Clarence Thomas issued a 10-page concurring opinion in which he said on page one he agreed with the majority’s opinion on the merits. He spent the remaining nine pages to explain there is no constitutional or statutory authority empowering a lone federal district judge to issue universal injunctive relief against the President’s immigration policy. Justice Thomas wrote:

Injunctions that prohibit the Executive Branch from applying a law or policy against anyone…have become increasingly common. District Courts, including the one here, have been imposing universal injunctions without considering their authority to grant such sweeping relief. 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.

…I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.

Why would anyone other than attorneys or legal policy wonks care about a lone federal judge issuing a nationwide injunction? Attorney General Jeff Sessions answered this question in a March 2018 piece in National Review.

“Why does this matter to non-lawyers? This is a question of who gets to decide the policy questions facing America: Is it our elected representatives, our elected president, or unelected lifetime-appointed federal judges?”

“Nationwide injunctions,” continued General Sessions, “mean that each of the more than 600 federal district judges in the United States can freeze a law or regulation throughout the country—regardless of whether the other 599 disagree. That’s a threat to the proper functioning of the federal government….”

Almost two dozen nationwide injunctions have been issued against the Trump administration on hot-button issues like DACA and funding “sanctuary cities.”

In all these cases, the plaintiffs forum shop, i.e., pick a judicial district where they know they will get a judge with a sympathetic political bias.

For example, US District Court Judge William Orrick of San Francisco, according to the Daily Caller and other news reports, was a political bundler who raised $230,000 for President Obama in 2008 and $100,000 for Democratic nominee John Kerry in 2004. Orrick was appointed to the Northern California District Court by Obama in 2013.

In 2017, Orrick blocked President Trump’s “sanctuary city” defunding order. His injunction applied not just to San Francisco and the Northern District of California, but nationwide.

If you think it was mere chance that Judge Orrick happened to be the federal district judge who decided this politically charged case, you need to think again. The plaintiffs filed where they were certain a political ally on the bench would hear their case.

To quote Justice Thomas, “universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

There are 15 comments.

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  1. Randy Webster Member

    The administration should ignore the rulings except in the judge’s district. He has no jurisdiction outside of it. 

    • #1
    • July 3, 2018, at 5:32 PM PDT
    • 12 likes
  2. Columbo Member

    Good on Justice Thomas for calling this out.

    By the way, I like to read Michael Henry when he’s not so serious.

    • #2
    • July 3, 2018, at 5:57 PM PDT
    • 7 likes
  3. DonG (skeptic) Coolidge

    Trump admin screwed that up coming and going. At least the SCOTUS got it right in the end.

    • #3
    • July 3, 2018, at 8:07 PM PDT
    • Like
  4. toggle Inactive

    Columbo (View Comment):

    Good on Justice Thomas for calling this out.

    Yes, for taking the time, and pages, to issue the warning about the thin ice on which our quaint Constitution allocates authority in Articles I, II, & III.
    Leftists circumvent the burden of its authority in frequent schemes to impose their own.
    There are other parts of it, though, that will keep it intact, if they skate too far.
    Not something to wish for.
    After their interpretive improvisations and hissy-fit delays, results are going our way, more and more.

    • #4
    • July 3, 2018, at 8:13 PM PDT
    • 4 likes
  5. EJHill Podcaster
    EJHill Joined in the first year of Ricochet Ricochet Charter Member

    How does this play out? Is it the CJ that has the authority to reign in this behavior or does the whole court have to do it (and wait for a case to do it in)?

    On another note, Hawaii is in the 9th Circuit. The Justice assigned to that was Anthony Kennedy. 

    • #5
    • July 3, 2018, at 9:02 PM PDT
    • 5 likes
  6. Judge Mental Member

    EJHill (View Comment):

    How does this play out? Is it the CJ that has the authority to reign in this behavior or does the whole court have to do it (and wait for a case to do it in)?

    On another note, Hawaii is in the 9th Circuit. The Justice assigned to that was Anthony Kennedy.

    To get a case, someone has to defy the authority of the injunction somehow, right? If Trump goes along with it, you don’t get a case deciding this question. If this or another judge does another injunction over immigration, Trump should ignore it outside the judge’s district.

    • #6
    • July 3, 2018, at 9:12 PM PDT
    • 3 likes
  7. Skyler Coolidge

    Columbo (View Comment):

    Good on Justice Thomas for calling this out.

     

    And shame on the other eight for not signing onto this concurring opinion.

    • #7
    • July 3, 2018, at 11:14 PM PDT
    • 7 likes
  8. Skyler Coolidge

    EJHill (View Comment):
    How does this play out? Is it the CJ that has the authority to reign in this behavior or does the whole court have to do it (and wait for a case to do it in)?

    It plays out thus: The Supreme Court did nothing to prevent it happening again except that Thomas put them on notice that he won’t like it if a lower court does this again. The other 8 justices didn’t care enough to agree. Therefore, a single federal judge and still enjoin the president or his administration from enforcing the law at their whim.

    You’d need at least four more votes for this to be an accepted ruling. Even then, it won’t stop a single judge from acting, but it would allow an Appeals Court to overturn such an injunction. As it is, an Appeals Court can claim that the failure of the Court to join on Thomas’ concurring opinion means that such an injunction is expressly allowed.

    I see this as a disaster in the long term that none of the justices joined Thomas.

    • #8
    • July 3, 2018, at 11:29 PM PDT
    • 4 likes
  9. formerlawprof Coolidge

    Skyler (View Comment):

    You’d need at least four more votes for this to be an accepted ruling. Even then, it won’t stop a single judge from acting, but it would allow an Appeals Court to overturn such an injunction. As it is, an Appeals Court can claim that the failure of the Court to join on Thomas’ concurring opinion means that such an injunction is expressly allowed.

    I see this as a disaster in the long term that none of the justices joined Thomas.

    It’s not quite that bad, @skyler. You are correct that 5 SCOTUS votes in a live case would be required to make Justice Thomas’s point the law of the land. But it’s not correct that the Courts of Appeals could claim that the failure to expressly rule on the point is the same as expressly allowing it.

    Sooner or later, if the Administration doggedly opposes nationwide injunctions on the grounds of jurisdiction, and appeals the jurisdictional point explicitly, the issue will be addressed by one or more Circuits, sooner or later the Circuits will disagree (known in Supreme Court practice as a “Circuit Split”), and the issue will come before the Supreme Court for an up or down vote.

    Whether or not Thomas could get 4 more votes is unclear, however. Although he is right to express this concern, the issue is not a slam-dunk. To have a national policy that is enforceable in some parts of the country, but not others, raises significant new problems. And don’t forget, as Justice Thomas himself noted, the Trump Administration is hardly the first one to have had such injunctions issued against it–the practice has been going on for several decades, and surely the issue has been raised before (and just put aside, as here).

    My guess is that the long-term solution is more likely to be expedited appeals on the merits, and the courts putting heavier weight on the disruption of national policy. Even if a small group of residents in, say, Hawaii, has standing to complain of a particular policy, and even if that policy is constitutionally suspect, perhaps a full-boat national injunction will be found not to be justified.

    That’s called “balancing the equities” in law speak, and it is always considered in every injunction case. Perhaps Justice Thomas is in part urging the lower courts to get a better set of balance scales, so that the problem of nationwide injunctions is less often encountered.

    • #9
    • July 4, 2018, at 5:07 AM PDT
    • 4 likes
  10. Randy Webster Member

    formerlawprof (View Comment):

    Skyler (View Comment):

    You’d need at least four more votes for this to be an accepted ruling. Even then, it won’t stop a single judge from acting, but it would allow an Appeals Court to overturn such an injunction. As it is, an Appeals Court can claim that the failure of the Court to join on Thomas’ concurring opinion means that such an injunction is expressly allowed.

    I see this as a disaster in the long term that none of the justices joined Thomas.

    It’s not quite that bad, @skyler. You are correct that 5 SCOTUS votes in a live case would be required to make Justice Thomas’s point the law of the land. But it’s not correct that the Courts of Appeals could claim that the failure to expressly rule on the point is the same as expressly allowing it.

    Sooner or later, if the Administration doggedly opposes nationwide injunctions on the grounds of jurisdiction, and appeals the jurisdictional point explicitly, the issue will be addressed by one or more Circuits, sooner or later the Circuits will disagree (known in Supreme Cout practice as a “Circuit Split”), and the issue will come before the Supreme Court for an up or down vote.

    Whether or not Thomas could get 4 more votes is unclear, however. Although he is right to express this concern, the issue is not a slam-dunk. To have a national policy that is enforceable in some parts of the country, but not others, raises significant new problems. And don’t forget, as Justice Thomas himself noted, the Trump Administration is hardly the first one to have had such injunctions issued against it–the practice has been going on for several decades, and surely the issue has been raised before (and just put aside, as here).

    My guess is that the long-term solution is more likely to be expedited appeals on the merits, and the courts putting heavier weight on the disruption of national policy. Even if a small group of residents in, say, Hawaii, has standing to complain of a particular policy, and even if that policy is constitutionally suspect, perhaps a full-boat national injunction will be found not to be justified.

    That’s called “balancing the equities” in law speak, and it is always considered in every injunction case. Perhaps Justice Thomas is in part urging the lower courts to get a better set of balance scales, so that the problem of nationwide injunctions is less often encountered.

    So can another district court hear a case on the same point by the administration and set aside the injunction nationwide? If you can have circuit splitting, can you have district splitting? That seems to be a path to insanity.

    • #10
    • July 4, 2018, at 5:12 AM PDT
    • 2 likes
  11. Arahant Member

    MichaelHenry: To quote Justice Thomas, “universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

    Yep.

    • #11
    • July 4, 2018, at 5:23 AM PDT
    • Like
  12. Arahant Member

    Columbo (View Comment):
    By the way, I like to read Michael Henry when he’s not so serious.

    I like reading him either way. Plus, his novels are very good. I have reviewed a few of them in the past.

    Three Bad Years

    At Random

    The Ride Along

    • #12
    • July 4, 2018, at 5:25 AM PDT
    • 2 likes
  13. Profile Photo Member

    formerlawprof (View Comment):

    Skyler (View Comment):

    You’d need at least four more votes for this to be an accepted ruling. Even then, it won’t stop a single judge from acting, but it would allow an Appeals Court to overturn such an injunction. As it is, an Appeals Court can claim that the failure of the Court to join on Thomas’ concurring opinion means that such an injunction is expressly allowed.

    I see this as a disaster in the long term that none of the justices joined Thomas.

    It’s not quite that bad, @skyler. You are correct that 5 SCOTUS votes in a live case would be required to make Justice Thomas’s point the law of the land. But it’s not correct that the Courts of Appeals could claim that the failure to expressly rule on the point is the same as expressly allowing it.

    Sooner or later, if the Administration doggedly opposes nationwide injunctions on the grounds of jurisdiction, and appeals the jurisdictional point explicitly, the issue will be addressed by one or more Circuits, sooner or later the Circuits will disagree (known in Supreme Court practice as a “Circuit Split”), and the issue will come before the Supreme Court for an up or down vote.

    Whether or not Thomas could get 4 more votes is unclear, however. Although he is right to express this concern, the issue is not a slam-dunk. To have a national policy that is enforceable in some parts of the country, but not others, raises significant new problems. And don’t forget, as Justice Thomas himself noted, the Trump Administration is hardly the first one to have had such injunctions issued against it–the practice has been going on for several decades, and surely the issue has been raised before (and just put aside, as here).

    My guess is that the long-term solution is more likely to be expedited appeals on the merits, and the courts putting heavier weight on the disruption of national policy. Even if a small group of residents in, say, Hawaii, has standing to complain of a particular policy, and even if that policy is constitutionally suspect, perhaps a full-boat national injunction will be found not to be justified.

    That’s called “balancing the equities” in law speak, and it is always considered in every injunction case. Perhaps Justice Thomas is in part urging the lower courts to get a better set of balance scales, so that the problem of nationwide injunctions is less often encountered.

    Also, I don’t know how the administration presented their case, whether they challenged the authority of the district court or whether they just challenged the correctness. The Court ha a general rule of not reaching broader rules that they don’t have to. Here they could resolve the case by pointing out that the district court was wrong on the merits. 

    • #13
    • July 4, 2018, at 5:56 AM PDT
    • 1 like
  14. Skyler Coolidge

    formerlawprof (View Comment):

    Skyler (View Comment):

    You’d need at least four more votes for this to be an accepted ruling. Even then, it won’t stop a single judge from acting, but it would allow an Appeals Court to overturn such an injunction. As it is, an Appeals Court can claim that the failure of the Court to join on Thomas’ concurring opinion means that such an injunction is expressly allowed.

    I see this as a disaster in the long term that none of the justices joined Thomas.

    It’s not quite that bad, @skyler. You are correct that 5 SCOTUS votes in a live case would be required to make Justice Thomas’s point the law of the land. But it’s not correct that the Courts of Appeals could claim that the failure to expressly rule on the point is the same as expressly allowing it.

    Sooner or later, if the Administration doggedly opposes nationwide injunctions on the grounds of jurisdiction, and appeals the jurisdictional point explicitly, the issue will be addressed by one or more Circuits, sooner or later the Circuits will disagree (known in Supreme Court practice as a “Circuit Split”), and the issue will come before the Supreme Court for an up or down vote.

    Whether or not Thomas could get 4 more votes is unclear, however. Although he is right to express this concern, the issue is not a slam-dunk. To have a national policy that is enforceable in some parts of the country, but not others, raises significant new problems. And don’t forget, as Justice Thomas himself noted, the Trump Administration is hardly the first one to have had such injunctions issued against it–the practice has been going on for several decades, and surely the issue has been raised before (and just put aside, as here).

    My guess is that the long-term solution is more likely to be expedited appeals on the merits, and the courts putting heavier weight on the disruption of national policy. Even if a small group of residents in, say, Hawaii, has standing to complain of a particular policy, and even if that policy is constitutionally suspect, perhaps a full-boat national injunction will be found not to be justified.

    That’s called “balancing the equities” in law speak, and it is always considered in every injunction case. Perhaps Justice Thomas is in part urging the lower courts to get a better set of balance scales, so that the problem of nationwide injunctions is less often encountered.

    I am properly admonished. I agree with your point that it is not wise to suddenly make this issue law without it being addressed as an issue, argued by opposing parties and all the ramifications taken into account. Thanks for the correction.

    • #14
    • July 4, 2018, at 6:28 AM PDT
    • Like
  15. contrarian Member

    I propose that we leave Kennedy’s seat empty and from now on Thomas’ vote should count double.

    • #15
    • July 4, 2018, at 7:10 AM PDT
    • 10 likes

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