Individual federal judges are not supposed to unilaterally decide policy for the entire country, yet that’s exactly what they’re doing — ignoring the will of the American people in the process.
Judge Jon Tigar’s injunction abuse last week is just the latest example of liberal judicial activism in outright defiance of the U.S. Constitution.
From his bench in San Francisco, Tigar accepted the demands of pro-migrant ”caravan” activists and applied their favored policies to the entire U.S. border. He blocked President Donald Trump’s order requiring asylum-seekers to apply only at legal ports of entry, and mandated that any caravaners who make it across the border be allowed to stay in the United States for as long as it takes to process their asylum claims — a process that normally takes months, if not years.
Until the 1960s, individual federal district courts never once issued preliminary injunctions overturning entire policies enacted by executive order. In the last decade, however — and especially since Donald Trump entered the White House — such injunctions have become a regular feature of American governance.
Tigar’s injunction marked the 26th time a liberal judge has blocked Trump administration policy nationwide without so much as a trial. That’s more injunctions in less than two years than any other president endured through his entire tenure in office.
A growing consensus is forming across the ideological spectrum that this can’t go on.
It’s clear to me that the ideological leanings of certain judges and the hysterical focus on “resisting” President Trump among liberal lawyers have both played a role in this state of affairs. Worryingly, their reliance on judicial bullying has managed to reveal a major structural problem with our federal courts.
The effect of these easily obtainable nationwide injunctions is that the country is now essentially ruled by a judicial dictatorship.
Activist lawyers know that a major test case takes at least months — and more often years — to makes its way through the courts to a final decision at the U.S. Supreme Court. They have learned that if they can find just one federal judge, anywhere in the country, who is sympathetic to their arguments, they can set policy for the entire country while that lengthy process plays out.
President Trump’s ban on travel from terror-prone countries, for example, was eventually fully vindicated by the Supreme Court as a constitutional use of executive authority. Yet for months, the American Civil Liberties Union and other liberal groups were able to force the entire executive branch to bend to their will merely because they found a sympathetic ear among federal judges in Hawaii and California who were willing to rule against the president’s executive order.
Encouraged by that success, liberal activists have used the same anti-democratic tactic to force the U.S. Department of Justice to fund sanctuary cities, compel the military to recruit “transgender” service members, and foist various other policy prescriptions from their radical wish list onto a nation that never voted for them.
This is not, however, simply a left vs. right issue. The desperation President Trump has stirred up among activists who detest his policies has simply brought the wider issue of nationwide injunctions to the fore.
During Barack Obama’s presidency, conservatives pursued a number of nationwide injunctions to frustrate his agenda and upset the normal process of court cases. Even today, Democrats have very real concerns that nationwide injunctions could render the entirety of Obamacare unworkable.
A consensus is quietly forming — among conservatives, libertarians, and liberals alike — that this is not how the government is supposed to function.
We can fix this. The Justice Department has already issued a memo to its attorneys directing them to fight against the imposition of nationwide injunctions. In time, the Supreme Court and the circuit courts could also limit the circumstances under which lower courts are able to issue injunctions.
Ultimately, though, the federal courts operate under parameters and rules set by Congress. That’s why lawmakers are taking up legislation to address this problem and make clear to federal judges the very limited circumstances under which they can issue these sweeping injunctions.
The executive branch cannot function effectively if a passionate minority of activist lawyers can set policy for months or years without winning a single election. This isn’t about politics; it’s about returning the courts to their proper constitutional role.
It’s time for Congress to reassert its constitutional prerogatives by reining in our out-of-control judiciary.
Joseph DiGenova is an American attorney who served as the United States Attorney for the District of Columbia from 1983 to 1988.
