Tag Archives: courts

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.

Serious Judicial Error

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Federal District Judge Myong Joun (District of Massachusetts) has issued a preliminary injunction requiring the Trump administration to desist from its moves to dismantle the Department of Education. Fair enough; the Department was created by Congress, the administration can jawbone for its elimination, but only Congress can do so.

Unfortunately, the judge didn’t stop there. He also ordered DoEd to rehire those employees who’d been RIFed as excess to the Department’s needs.

Not only is there no evidence that defendants are pursuing a “legislative goal” or otherwise working with Congress to reach a resolution, but there is also no evidence that the [reduction in force] has actually made the Department more efficient[.]

Judges don’t get to dictate the purpose of agency/Department heads’ firings of employees. RIFs have as their purpose the removal of unneeded employees—the essence of making any government agency more efficient.

Joun gave the lie to his employment ruling by his decision to not say how the RIFs reduced Department efficiency. He simply wholesale-ly accepted the plaintiffs’ (a group of states, school districts, non-profit organizations, and labor unions) claims regarding efficiency and coupled that with his blithe, unsubstantiated rejection of the government’s position.

It gets worse. Joun wrote in his opening

Defendants do acknowledge, as they must, that the Department cannot be shut down without Congress’s approval, yet they simultaneously claim that their legislative goals (obtaining Congressional approval to shut down the Department) are distinct from their administrative goals (improving efficiency). There is nothing in the record to support these contradictory positions.

Even logic doesn’t seem to matter. There’s nothing contradictory in DoEd Secretary Linda McMahon both working with Congress to eliminate the Department while simultaneously working to make the Department more efficient—which she must do while the Department remains in existence.

Beyond that, judges do not get to dictate to a coequal and separate branch what that branch’s employment practices must be. The judge’s role in the present case, his sole legitimate role under our Constitution and his oath of office, is to adjudicate whether these firings comport themselves with statute and with our Constitution.

Activist judges, judges who go beyond that limit, are violating their oaths of office; from that they are not hold[ing] their Offices during good Behavior. That is an impeachable offense.

This one would have been fine, if on disagreeable ground, had he stopped with his order to stop dismantling DoEd. His meddling in Executive Branch employment decisions has gone too far.

Full stop.

Joun’s injunction can be read here.

“Be Wary of Judicial Umpires”

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That’s the headline on Nate Silver’s Sunday letter to The Wall Street Journal‘s Letters section.

He’s right, but I have that skepticism from a different angle.

Judges’ and Justices’ sole role—made explicit in our Constitution’s Article I, Section 1, and Article III and by their oaths of office—is to apply the clauses of our Constitution and the statutes before them in any particular case as they are written. These are much more precisely defined than any umpire’s visual sighting of penumbral limits from his skewed perspective, which is all the perspective umpires have. The laws (and regulations) that come before judges and Justices are ambiguous, similarly metaphorically skewed? Then they are unconstitutionally vague and should be struck. Umpires don’t get to dismiss pitches that they only hazily see; they must make their guesses. Judges and Justices have that ability; they have no excuse for acting like umpires and not like judges and Justices.

Full stop.

Demonstrating her Naked Bias

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Justice Ketanji Brown Jackson is at it again. At a recent “judges’ conference” in Puerto Rico, she said this about “relentless attacks” on judges “designed to intimidate:”

The attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity. The threats and harassment are attacks on our democracy, on our system of government. And they ultimately risk undermining our Constitution and the rule of law.

So far, so good. She’s decrying attacks by the likes of then-Senate Majority Leader Chuck Schumer (D, NY) on two Supreme Court Justices he specifically named. She’s decrying the smear campaign against then-Supreme Court nominee Brett Kavanaugh.

Right?

No. She went on, speaking to judges, not those who threaten them:

I urge you to keep going, keep doing what is right for our country, and I do believe that history will vindicate your service[.]

There it is. Jackson has prejudged cases currently before activist (my term) district judges who’ve overstepped their roles and are looking to dictate foreign policy from their benches, presaging how she’ll rule when any of those cases come before the Supreme Court.

More than that

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President Donald Trump (R) fired Progressive-Democrat EEOC commissioner Jocelyn Samuels over her refusal to follow Trump’s instructions and EOs, among other things, rescinding the Biden administration’s EEOC rules requiring employers to pay for, or to pay insurance coverage for, employee hormone and surgical treatments to resemble the opposite sex, in violation of their [employers’] religious beliefs.

Naturally, Samuels is suing over the effrontery of firing her. Her lawyers are making this argument in court:

Because the Commissioners perform predominantly quasi-judicial and quasi-legislative functions, these restrictions on the president’s removal authority are constitutional[.]

On the contrary. Because Commissioners perform predominantly quasi-judicial and quasi-legislative functions from inside the Executive Branch, they’re violating bedrock Constitutional separation of powers requirements. Those requirements are articulated in so many words in our Constitution’s Article I, Section 1, which mandates legislative functions can occur only within the Legislative Branch, and again in so many words by our Constitution’s Article III, Section 1, which mandates that judicial functions can occur only within the Judicial Branch.

It really is that straightforward. Those broad authorities claimed by the EEOC are themselves wholly unconstitutional.