Monthly Archives: May 2025

No Compromise

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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.

There’s a Hint There

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President Donald Trump’s (R) National Security Council is being reorganized and downsized streamlined in a badly needed revamp. One demonstrated need is this:

The goal, according to one official, is to streamline processes within the NSC, which coordinates national security and foreign policy for the president….

This is a continuation of Fiona Hill’s (remember her?) anger over her ad hoc interagency coordination group foreign policy inputs not being obeyed by Trump I. It’s not the NSC’s job—or it should not be—to coordinate national security and foreign policy for the President. It’s the NSC’s job—or it should be—to coordinate national security and foreign policy inputs to the President’s own national security and foreign policy development and decisions.

The move is intended to increase DoD’s and State’s direct involvement in those inputs, and that’s entirely appropriate. Homeland Security’s inputs should be increased, as well, given that that Department was created long after the NSC. The three departments, too, already form—or should form—the core of all of those policy development inputs.

Misguided Categorizations

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The Wall Street Journal has them in its article concerning some outcomes of the just-passed House version of the budget reconciliation bill. The headline reads

The Biggest Losers in Trump’s Megabill

Some Medicaid users are categorized as losers. House-passed work requirements would mean some few millions would lose Medicaid coverage unless they show they’re working part time or are actively seeking work or they are volunteering. Separately, nearly a million and a half illegal aliens would lose coverage. It’s hard to see how these are losers. Those going back to work rather than coasting on our taxpayer handouts stand to gain morally and in the medium- and longer-term economically by having jobs and being able thereby to move up the economic ladder. Those volunteering will do much good for their community while gaining—if they volunteer seriously—valuable work experience. The illegal aliens being denied coverage can’t be losers, since it’s not a loss to no longer receive that to which they were never entitled in the first place.

Older food-aid recipients are categorized as losers from those same work requirements, here being extended to age 64. This is an especially wrong categorization since these folks actually gain in two ways. The first and immediate way is from the same gains as just above, for all that the longer-term part is absent. The second way these folks actually gain, though, directly addresses that longer term: by working those added years, they’re plussing up the Social Security payments they’ll receive when they actually retire.

Clean-energy projects are categorized as losers. The House-passed bill cancels these projects’ tax credits on an accelerated (relative to the originally proposed glacial) schedule. This time, the projects really are losers, but our economy gains enormously by cutting off those money wasters and by reducing the energy production and market distortions such credits have created.

Some student-loan borrowers are categorized as losers. The House-passed bill would put them on one of two offered repayment plans. This actually makes the borrowers winners, since it makes it possible for them actually to repay their loans and get those yokes off their necks.

EV/hybrid car owners and buyers are categorized as losers. Here, as with clean energy, the battery car buyers will lose out on subsidies, but our economy as a whole—and ultimately those battery car buyers—will gain sharply. These wastes of our taxpayer money will stop, and those subsidies’ production and market distortions will disappear.

While it’s true enough that the House-passed bill has much for which to be criticized—it doesn’t reduce tax rates enough, and it doesn’t cut spending nearly enough—these five items aren’t on that list.

An Irrelevant Argument

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Or it should be.

Recall that the Homeland Security Secretary Kristi Noem has canceled Harvard University’s authorization to enroll foreign students over that school’s decision to not bother in any serious way to protect the safety and free speech rights of Jewish students and to keep enrolling “students” who then engage in anti-American and pro-terrorist riots, building seizures, and vandalism, along with its refusal to expel and bring charges against those “students” already enrolled who’ve engaged in those behaviors. These school administration decisions could rise to the level of civil rights law violations, similar as they are, to Columbia University’s decisions which has resuled in that school being charged by HHS with civil rights law violations.

Harvard’s situation:

Harvard enrolls about 7,000 international students—more than 25% of the student body—and like many US universities it relies on their tuition payments, which are often full-fee.

As Noem noted,

It is a privilege, not a right, for universities to enroll foreign students and benefit from their higher tuition payments to help pad their multibillion-dollar endowments[.]

This echoes SecState Marco Rubio’s acknowledgment that even getting a visa (student or otherwise) in the first place is a privilege and not a right. Both acknowledgments also carry the flip side that our government has no obligation to grant visas and no obligation to authorize colleges or universities to enroll foreign students.

Still, Harvard has filed an appeal to Noem’s decision and is seeking an injunction, trying to get a judge to once again dictate from the awesome heights of a district court knoll top what a coequal branch of our government can do regarding foreign policy. In his letter “to the community,” Harvard President Alan Garber wrote that the cancelation,

imperils the future of thousands of students and scholars across Harvard and serves as a warning to countless others at colleges and universities throughout the country who have come to America to pursue their education and fulfill their dreams[.]

This is both cynically specious and wholly irrelevant. That Harvard has designed its business model to be so dependent on foreign student enrollment in no way obligates our government to allow such enrollment. Further, in no way do future “thousands of students” or “scholars” have any intrinsic right to a student visa, or any other form of visa.

The DHS decision here certainly should serve as a warning to others at colleges and universities, and at any other institution or enterprise, that coming into our nation for any purpose is a privilege and not a right, and that granting such a privilege incurs an obligation on the grantee to obey all of our laws, including the free speech rights of others and the sanctity of property, whether privately held or government held.

There is no part of Harvard’s argument that is relevant to the case. What matters—all that matters—is what does the law say? Is this cutoff permissible under existing law?

If the cutoff is permissible, then a non-activist judge who obeys our Constitution and his oath of office, must deny the injunction request. Harvard should have two basic choices: shape up and stop coddling rioters and vandals, or work to change the law.

Unfortunately, the case went before just such an activist judge. Federal District Judge Allison Burroughs has issued Harvard’s requested injunction staying the DHS cancelation.

Memorial Day Celebrations

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I first posted this in 2012.  It bears repeating.

Enjoy this holiday.  Take the time to kick back, relax from the hard work you’ve been doing, and just goof off for a bit.

While you’re doing that, though, do something else, also.  Invite that veteran in your neighborhood, who came back from his service wounded or maimed, and his or her family, to your celebration.  Invite the family in your neighborhood whose veteran was killed in his or her service to your celebration.  They need the break and the relaxation and the support, also.  And they’ve earned your respect and remembrance.

To which I add this, excerpted from Alex Horton’s remarks on the significance of the day to him and his:

I hope civilians find more solace in Memorial Day than I do.  Many seem to forget why it exists in the first place, and spend the time looking for good sales or drinking beers on the back porch.  It’s a long weekend, not a period of personal reflection.  At the same time, many incorrectly thank Vets or active duty folks for their service.  While appreciated, it’s misdirected.  That’s what Veterans Day is for.  Instead, they should take some time and remember the spirit of the country and the dedication of those men and women who chose to pick up arms.  They never came home to be thanked, and only their memory remains.

 

h/t Spirit of America