Restricting judge shopping in cases that seek to overturn the voters' will by seeking nationwide injunctions

How to counter the Dems who are trying to rig the game

A preliminary note to my subscribers

On February 17, I published “The Massive Resistance and Ideas About How to Fight It.” That article discussed the following three ways to counter-attack against the state attorneys general, NGOs, and others who are waging lawfare against the Trump administration’s efforts to root out fraud and mismanagement in the federal government: (1) congressional limitations on judge shopping in nationwide injunction cases; (2) recall elections of state governors and attorneys general who are leading the lawfare effort against the Trump administration; (3) investigations of possible suits, both criminal and civil, against governors, state AGs, and those who are collaborating with them as part of their illegitimate lawfare campaign.

Most of that article was for paid subscribers only, because I think I owe them a little something extra. But today The Federalist published my follow-up article which deals only with the first of the above topics, i.e., ways Congress can limit judge-shopping. The article in The Federalist can be accessed at this link. But, if you prefer, you can simply keep reading as I have reproduced it in full below for all subscribers.

Congress should restrict use of nationwide injunctions and make it more difficult to rig results by judge shopping in such cases.

The radical Democrats have chosen their strategy to fight the reforms that voters demanded last November: the continued use of the judiciary to wage political lawfare against President Donald Trump and his administration. They often do so by carefully vetting and selecting a single federal court or judge that they think is aligned with their political views and will give them favorable treatment, even in highly charged political disputes. They then seek to have their favored judge issue a universal or nationwide injunction against the president or other government officers or agencies. This creates a system ripe for abuse that ultimately undermines the citizenry’s respect for the courts.

Abusive Nationwide Political Injunctions

Nationwide injunctions seek to block federal policies from being enforced anywhere in the country, not just in the district where the issuing judge sits. They are often used in an unprecedented manner to block federal policies disfavored by Democrats from being implemented or enforced.

One example of the abuse of such political nationwide injunctions occurred in 2017. President Trump had temporarily restricted noncitizens’ entry into the United States from eight specified countries that he determined had insufficient controls to prevent terrorism. A single district judge in Hawaii entered a nationwide injunction overturning that policy decision. That injunction did not just prohibit the enforcement of the restrictions in Hawaii, but extended to all 50 states. The following year, in Trump v. Hawaii, the Supreme Court reversed the injunction as an “abuse of discretion.”

Nationwide injunctions may sometimes be appropriate, but they also can be petri dishes that breed dangerous problems. They run afoul of the general principle that federal district courts are courts of limited jurisdiction whose role is to decide the dispute between the parties before them. They can interfere with the constitutional allocation of power between Congress and the president.

When courts become involved in such political disputes it can increase the perception that they are in the pocket of a particular political party. Such politicization undermines public confidence in an apolitical judiciary.

Whether to continue or modify the role of nationwide injunctions is a complex topic. This article will not attempt to wade into the dispute over whether they should be permitted at all or limited in scope. But whether they stay or go, there is a way to limit their abuse: Congress should act swiftly.

Judge Shopping and How to Limit It

Many of these political suits have been filed by Democrat state attorneys general, unions, left-leaning nongovernmental organizations, and others who are implementing the Democrats’ lawfare. The administration is defending several cases vigorously, with a number of successes so far. But some judges have granted injunctions, and even a successful defense can take an inordinate length of time.

This delay is these plaintiffs’ friend. It typically would be a year or more before a case presenting this issue could be decided by the Supreme Court. When such an injunction is granted, even one day’s delay can prevent the president from exercising his constitutional duty as the chief executive officer of the United States. That is unacceptable.

Congress should prevent this abuse. It can take a first step now by making it more difficult for plaintiffs to rig the results by judge shopping for nationwide political injunctions.

As the Trump v. Hawaii case exemplifies, these national injunction cases often raise constitutional issues with novel and unprecedented arguments that would be rejected by most judges. But when they have a weak and unprecedented case, the radical Democrats often seek to tilt the scales. They do this by shopping for judges whom they know will favor them — and who often have conflicts of interest — and then persuading those judges (who don’t need much arm-twisting) to make rulings that will advance Democrats’ political agenda.

Currently, any one of the hundreds of federal district judges in the country can attempt to thwart the agenda of the president — the single person in whom the Constitution has vested the executive power of the United States. It is akin to allowing any of the corporals in an Army division to overrule the commanding general’s orders.

In establishing the separation-of-powers doctrine in our Constitution, the Founders did not foresee or intend such a bizarre result. The current Congress therefore should limit the potential for abuse by eliminating forum shopping in such cases with this simple solution: Congress should amend the federal jurisdictional statutes to divest any single district court or judge of the ability to issue nationwide political injunctions that prohibit or limit the implementation of a president’s or other government officer’s national or international policies.

Congress should legislate that any request for such injunctive relief may be heard only by a panel of three judges, rather than by a single judge. To further reduce judge shopping and to ensure geographic diversity of the judges in cases with nationwide implications, the members of the panel should be drawn from districts in three different circuits, with both the circuits and all three judges selected at random.

So, for example, if the plaintiffs filed their suit in New York or Washington, D.C., knowing that their chances of drawing a left-leaning, “progressive” judge are high, none of the judges from that district could rule on a request for injunctive relief. The three judges on the panel might be from California, Montana, and Mississippi.

Such reforms would thwart most judge shopping, thereby reducing the risk of improper national injunctions, lessening the danger of further politicization of our courts, and improving public confidence in the integrity of the judiciary.

This should be a relatively swift and simple solution. Congress could then consider the more complex issue of whether courts can enter national injunctions at all, especially in political cases. As Justice Clarence Thomas noted in his concurring opinion in Trump v. Hawaii, such “universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”

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After reading this, if you want to read the discussion of the other two points in The Massive Resistance and Ideas About How to Fight It, i.e., recall elections and possible grounds for suits against the state AGs and others waging the lawfare, please feel free to purchase a paid subscription.