Ses­sions urges govern­ment lawyers to fight ‘ju­di­cial ac­tivism’ in in­junc­tions

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

At­tor­ney Gen­eral Jeff Ses­sions urged Jus­tice Depart­ment lawyers Thurs­day to re­sist ex­pand­ing claims of power by fed­eral judges who or­der na­tion­wide in­junc­tions against govern­ment poli­cies.

Those na­tion­wide in­junc­tions have be­come an un­likely but fiercely de­bated le­gal hot spot in re­cent years, as judges have used them to de­lay both Pres­i­dent Obama and Pres­i­dent Trump from pur­su­ing their agen­das.

Mr. Ses­sions called that “ju­di­cial ac­tivism” and said it’s time the govern­ment’s lawyers push back.

“We have a govern­ment to run,” he said. “The Con­sti­tu­tion does not grant to a sin­gle district judge the power to veto ex­ec­u­tive branch ac­tions with re­spect to par­ties not be­fore the court. Nor does it pro­vide the ju­di­ciary with au­thor­ity to con­duct over­sight of or re­view pol­icy of the ex­ec­u­tive branch.”

He has is­sued new guid­ance to Jus­tice Depart­ment lawyers who find them­selves de­fend­ing govern­ment poli­cies in cases where a judge is con­sid­er­ing a na­tion­wide in­junc­tion. He urged the lawyers to stren­u­ously ar­gue against na­tion­wide in­junc­tions in those cases.

Law­mak­ers on Capi­tol Hill are also tak­ing ac­tion.

The House Ju­di­ciary Com­mit­tee ap­proved leg­is­la­tion Thurs­day to cur­tail in­junc­tions. Un­der that bill, courts would only gen­er­ally be able to is­sue or­ders gov­ern­ing the par­ties in the case in front of them.

The bill cleared com­mit­tee on a 14-6 vote.

“The Con­sti­tu­tion gives courts the au­thor­ity to de­cide cases for the par­ties be­fore them, not to act as su­per-leg­is­la­tors for ev­ery­one across the coun­try based on a sin­gle case,” said com­mit­tee Chair­man Bob Good­latte, Vir­ginia Repub­li­can.

In­junc­tions serve as ju­di­cial block­ades on the govern­ment tak­ing ac­tion.

For most of the coun­try’s his­tory, judges lim­ited their in­junc­tions just to the par­ties ar­gu­ing in front of them. Mr. Ses­sions says schol­ars can’t find any na­tional in­junc­tions is­sued be­fore 1963. But in re­cent years judges have de­cided that when a pol­icy is likely il­le­gal, it needs to be halted for ev­ery­one in or­der to pre­serve uni­form treat­ment.

One ex­am­ple came in 2015, when a fed­eral judge in Texas ruled an Oba­maera de­por­ta­tion amnesty for the il­le­gal­im­mi­grant par­ents of U.S. ci­ti­zens was likely il­le­gal, and blocked it for the en­tire coun­try. The Obama ad­min­is­tra­tion at the time had pushed for a nar­rower rul­ing only cov­er­ing the states that had sued.

More re­cently, Mr. Trump has run into the same prob­lem. Mr. Ses­sions said he’s been slapped with 25 na­tion­wide in­junc­tions rang­ing from his travel re­stric­tions to his sanc­tu­ary-city crack­down to his roll­back of an­other Obama-era de­por­ta­tion amnesty, for il­le­gal im­mi­grants brought to the U.S. as mi­nors.

Mr. Ses­sions says na­tion­wide in­junc­tions are un­fair to the govern­ment be­cause op­po­nents can file mul­ti­ple law­suits in dif­fer­ent ju­ris­dic­tions, and just need to win one to halt a pol­icy.

That was the case with the travel ban, where sev­eral judges ruled Mr. Trump was act­ing within his pow­ers — while oth­ers ruled the ban il­le­gal. De­spite the dis­agree­ment, the anti-Trump rul­ings and their na­tional in­junc­tions con­trolled.

The is­sue has got­ten at­ten­tion from the high­est quar­ters, with Supreme Court Jus­tice Clarence Thomas ques­tion­ing the va­lid­ity of na­tion­wide in­junc­tions.

It even came up last week in the con­fir­ma­tion hear­ings of Judge Brett Ka­vanaugh, Mr. Trump’s nom­i­nee to fill the va­cant Supreme Court seat. He de­clined to share thoughts, say­ing he fig­ures he’ll have to rule on it soon enough.

“That is an is­sue that is be­ing con­tested cur­rently in courts around the coun­try, I think, and as an is­sue of de­bate. And there­fore, I think I’d bet­ter say noth­ing about it. I apol­o­gize for that, but it is an is­sue of cur­rent de­bate,” he said.

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