Two lawyers, Joel Cohen and Bennett Gershman, think they have a solution to the exploding epidemic of nationwide injunctions being issued at the Federal district level by these bottom of the judicial hierarchy judges. They tried to lay out the problem:
From the justices’ questions in oral arguments last week, it was clear all are uneasy with the idea that trial judges have the authority to act as a “roving commission to correct every legal wrong that they can consider and to exercise general legal oversight over the executive branch,” as Solicitor General John Sauer put it.
The Justices are right to be “uneasy” about that. Aside from the overblown arrogance of a district judge issuing such an injunction, it leads to what we’re seeing now: judge-shopping to find the district most convenient to the case being presented and most likely to issue the desired national injunction. Then the lawyers added, however:
On the other hand, requiring everyone injured by an executive action to initiate his own lawsuit to gain relief seems unduly burdensome.
No, it isn’t burdensome to require everyone who claims an injury to enter into court to make that case. National injunctions not only include those claimants, they sweep up millions of others not injured in to the same case via the limitations imposed on everyone by that universal injunction—that’s the burden.
Then the lawyers offer their solution.
Judge Orrin Judd of the Eastern District of New York declared the US bombing of Cambodia unlawful and issued a permanent injunction against the government barring any military activities involving Cambodia. …
[R]ecognizing the decision’s potential impact, Judd granted the government a two-day stay to allow an appeal.
Fleshing this business out, the lawyers added,
The justices can place limits on such nationwide injunctions. When a district judge issues a nationwide injunction against the government, the court could require that he grant an automatic stay of, say, five days to allow an appeal to the circuit court, which would in turn be required to decide the case within, say, 30 days. The injunction, if affirmed, would no longer be the decision of a single judge. And if the circuit court gets the issue wrong, the Supreme Court could take it up quickly.
This is not an area where compromise is possible. Our Constitution must be adhered to in every particular, and that necessarily includes its structuring of our Federal government into three separate, coequal branches with only limited (if critically so) overlap among the branches.
In the present context, our Constitution makes the Executive Branch, particularly the President, the creator and operator of our nation’s foreign policy. Overlap: the President can engage with enemies militarily, but only the Legislative can declare war, and if the latter finds the former’s conflicts mistaken or lasting too long, it can cut off funding for the conflict.
Crucially, there is no overlap here between the Judiciary and the Executive. Lower courts are creations of the Legislative; their opinions on constitutionality are no more than that.
So it is with district court judges presuming to issue universal—nationwide—injunctions. These are bald and dangerous oversteps of our by-design separation of powers in our Federal government, and they must stop altogether. Given the number of activist judges issuing these opinions, they must be ended by the Supreme Court in no uncertain terms.
As the two lawyers wrote, courts can move quickly and efficiently, especially when a brief stay is granted, and there is an urgent need for expeditious review. Courts need no stay, temporary or otherwise, to move quickly and efficiently. They can do so when the matter, correctly limited to the litigants within the confines of the district, warrants the urgency.
Full stop.