Sessions takes dim view of travel ban ruling

WASHINGTON — President Donald Trump’s administration is looking for ways to deal with a recurring frustration: federal judges who have put the brakes on one major administration policy after another.

The administration is telling the U.S. Supreme Court in a case about Trump’s travel ban that judges are increasingly using what are called nationwide injunctions to stop “a federal policy everywhere.” The Justice Department says the high court should “reject the deeply misguided practice,” which has also been used against the administration’s crackdown on so-called sanctuary cities, Trump’s announced ban on transgender military service members and, most recently, the effort to end legal protections for young illegal aliens.

Attorney General Jeff Sessions has become the administration’s leading critic of the injunctions. Sessions said Tuesday that they have been used 20 times in Trump’s first year in office, “as many as President [Barack] Obama had in eight years.” But Sessions didn’t object to the practice in his prior life as a senator from Alabama. He had praised a single judge from Texas who put a nationwide block on an Obama immigration policy. The more common practice is for a judge to issue an order that gives only the people who sued what they want.

Legal scholars have attributed the rise of these broad judicial orders to a corresponding increase in executive action. In 2014, Obama acted to protect immigrant parents of U.S. children after Congress failed to pass an immigration overhaul. Similarly, Trump unilaterally sought to impose travel restrictions on immigrants from seven Muslim-majority countries a week after taking office.

The issue has a decidedly partisan tinge. During the Obama years, Republican officials and conservative interests sought out seemingly friendly judges, often in Texas, to challenge administration actions. Since Trump has been president, Democrats and liberal interests have filed lawsuits in places where they think federal judges will be receptive, such as California, Hawaii and Washington.

“It does run the risk of politicizing the judiciary,” said Amanda Frost, a law professor at American University who has nonetheless defended the practice. “In an executive branch that often engages in unilateral, sweeping actions that are often implemented without notice, it’s vital to have a check on its authority.”

The travel ban is one such example, Frost said. “It wouldn’t have been helpful to do it one court at a time.”

But Sessions has taken a dim view of the judges who ruled against the administration over the travel ban. On that matter, Sessions said this week that “one judge blocked the entire federal government from carrying out its lawful duty.” Last year, he referred to a federal judge in Hawaii who prevented the enforcement of the travel restrictions as a “judge sitting on an island in the Pacific.”

Trump himself reacted to an early court ruling against the travel policy by tweeting his criticism of the “so-called judge” who issued it.

Some legal scholars said the administration is on firm ground in complaining about judicial overreach.

“The judge doesn’t have authority to do that,” said Samuel Bray, a UCLA law professor who is moving to the Notre Dame Law School. “Judges decide cases. The cases are brought by parties and the judges are supposed to give remedies to those parties.”

The limits on a judge’s power remain even in the face of an obviously unconstitutional policy, Bray said.

“There’s not an immediate solution to everything,” he said, “but our system is set up for deciding one case at a time.”

“It does run the risk of politicizing the judiciary.”

— Amanda Frost, law professor at American University