Supreme Court Asked to Limit Nationwide Injunctions Trump Hates; But Congress Might Do It Better By Reviving Earlier 3-Judge Courts
Check out our H2 hedge fund letters here.WASHINGTON, D.C. (March 6, 2018): The Trump administration, in its filing about its travel ban, has asking the Supreme Court to limit what appears to be the growing use of nationwide injunctions being issued by individual judges to stop new administrative initiatives - e.g., its crackdown on "sanctuary cities," the ban on transgender persons in the military, plans to end DACA, etc. - calling them a "deeply misguided practice."
But because the Court is unlikely to address the issue, and because of its limited ability to take effective action, a better proposal might be for Congress to reconsider reinstating a process widely used previously under which challenges to the constitutionality of federal statutes had to be heard by a 3-judge panel, and the results would immediately - without any delays for review by federal circuit courts - be reviewed by the U.S. Supreme Court as a matter of right, says public interest law professor John Banzhaf.
In many cases where a federal judge believes that plaintiffs have a strong case against an action by the federal government, it will issue a temporary and/or preliminary injunction - sometimes simply called a "stay" - until the case can finally be decided, a process which can take several months or even longer.
Although the grant of such stays can be appealed to the intermediate federal courts - the U.S. Courts of Appeals - appellate court are often reluctant to overturn these temporary decisions.
Moreover, since the plaintiffs can generally choose the circuit likely to be most sympathetic to their cause, such reversals tend to be rare, and the stays largely remain in place, often for some time.
Then, if the original stay is not overturned by the circuit court, it can remain in effect for a long time since the Supreme Court is reluctant to adjudicate cases on a piecemeal basis, and would often prefer a final decision by a circuit court before tackling any difficult constitutional issues.
Moreover, because the high court can take only a limited number of cases each term, and because of its limited schedule, these orders, issued by a single federal judge and holding up major executive actions, can remain in place for a very long time.
In the past this concern was somewhat limited because judges tended to issue injunctions which directly affected only the parties before them, and in any event were limited in effect to one district or one state.
Thus a new policy might be enjoined in one state, but the government was free to move forward with it in the remainder of the country. But, for a variety of reasons, judges have begun issuing nationwide injunctions, preventing the policy from going into effect anywhere, often for extended periods.
Attorney General Jeff Sessions said that such nationwide injunctions have been used 20 times in Trump's first year in office, "as many as President Obama had in eight years."
Aside from the fact that so many of these rulings have gone against the administration, a more legitimate objection is that a single judge in a single circuit, often chosen by the plaintiffs because its prior rulings suggest sympathy for their position, can in effect dictate and stymie a policy promulgated by the president, arguably for compelling reasons, for a very lengthy period of time.
Banzhaf says its doubtful that the Supreme Court would address the issue at all. Even if it did, its ability to mandate effective change may be limited.
While it may be able to coerce federal judges to limit nationwide injunctions somewhat, the effect would be limited. Even more importantly, the Court can probably do little about the delays now involved as the cases must be decided by two different courts before they can reach the Supreme Court.
The professor says that Congress might be able to do a much better job by simply largely reinstating, with few if any changes, the procedures which governed challenges to the constitutionality of federal states from 1958 until 1976 under 28 U.S.C. Sec 2282.
Under Sec. 2282, such challenges could be brought only before a panel of 3 separate federal judges.
This limited the power of any one judge to block and stop an act of Congress, and was thought to help insure a more balanced and centralist legal decision since the 3 judges would have to deliberate before reaching a decision.
But perhaps more importantly, says Banzhaf, the process eliminated any intermediate review, and the delays such a process could take. Instead, any finding of unconstitutionality by the 3 judges would be immediately appealed as of right (not discretion) to the U.S. Supreme Court for appropriate action.
Congress eliminated this procedure back in 1976, apparently largely because of the logistical issues involving in bringing the three judges together for oral argument, subsequent deliberation, and then the careful crafting of a final written decision.
But, notes Banzhaf, with modern internet-based video conferencing equipment, judges sitting in three different cities can jointly participate in oral arguments, able to hear as well as see each other as well as counsel for all parties to the proceeding.
Similar video conferencing capabilities, as well as the ease with which documents can be drafted collaboratively by different persons in different states, should largely eliminate this growing problem of having one judge and one circuit, chosen by the plaintiffs for their apparent sympathies, able to hold up new major federal initiatives for many months of even years.
Interestingly, House Judiciary Committee Chairman Bob Goodlatte, R-Va., reportedly has raised this issue with Chief Justice Robert and other judges after other Republican lawmakers complained.
In the past it was Democrats who complained when individual federal judges, arguably chosen by plaintiffs based upon their hostility to the Obama administration, likewise held up some of his initiatives.
If the Supreme Court is unable or unwilling to deal with this problem effectively, it is likely that Congress will at least hold hearing on the issue so that all proposed remedies and points of view can be heard, predicts Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf