Horowitz: Trump can use this Supreme Court victory to neutralize ‘resistance’ judges

January 28, 2020

Daniel Horowitz

Michael Reynolds/EPA/Bloomberg | Getty Images
In June 2018, following endless litigation against Trump’s “travel ban,” the Supreme Court stated the obvious: The president has full authority to regulate and deny entry to foreign nationals at will. Yet the lower courts continue to come back for more and are even demanding that the Trump administration hand over more information to these same litigantswho should not have standing to sue, per the Supreme Court decision. Will Trump’s victory yesterday at the Supreme Courtfor his enforcement of public charge laws have any greater success than the travel ban has had in the courts? It’s up to the president and Congress to check these rogue judges.

By a vote of 5-4, the Supreme Court agreed to stay the injunction placed on Trump’s public charge law by a New York district judge. It’s not a surprise that five justices understand the absurdity of a lower court enjoining a modest enforcement of a long-standing law against prospective immigrants accessing welfare and then receiving a green card.
What is more important, however, is the concurrence written by Justice Gorsuch, joined by Justice Thomas, because it gets to the heart of the judicial insanity grinding our sovereignty to a halt and hampering any effort by President Trump to enforce unambiguous statutes on the books.

No matter how many times these lower courts get slapped down by the Supreme Court, they feel they can still come back for another round, even on the same issue, and halt an entire policy, beyond legitimate litigants with standing before the court. Gorsuch wrote, “It would be delusional to think that one stay today suffices to remedy the problem.” Clearly observing this illegitimate trend of nationwide injunctions issued by forum-shopped judges in numerous other cases, Gorsuch called on his colleagues to “at some point, confront these important objections to this increasingly widespread practice.”

Much as in Justice Thomas’ concurrence in Trump v. Hawaii, Gorsuch observed that universal injunctions, used as ad hoc judicial vetoes on broad presidential authorities or statutes, clearly violates the limited scope of judicial power. “When a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies,” wrote Gorsuch in his concurrence.

Gorsuch went even further to illustrate some of the political chaos, absurdities, and undemocratic outcomes that are resulting from this unconstitutional practice. “As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.”

Finally, Gorsuch took it to the next step and explained, as I’ve been warning for two years, that once you legitimize this game of forum-shopping and judicial vetoes, there’s nothing stopping the Democrats from coming back for endless rounds of this:

There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide. The risk of winning conflicting nationwide injunctions is real too.

And the stakes are asymmetric. If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice—possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. What in this gamesmanship and chaos can we be proud of?

This is certainly refreshing. But too many supporters of the president will take this as a win and go home, simply hoping that three other justices join Gorsuch and Thomas in “overturning” the concept of universal injunctions. However, not only is that unlikely to happen, we shouldn’t have to wait for the Supreme Court to “allow” us to function as a constitutional republic. The other branches of government need to put these judges in their place and refuse to give effect to their civil disobedience.

Throughout the day yesterday, there were numerous headlines exclaiming how the Supreme Court “allowed” the public charge rule to go forward. Such language should give any constitutionalist heartburn. Courts do not stand above the other branches of government, and they do not veto or ratify policies. If that were the case, we would cease to have three co-equal, independent branches of government.

A spokesperson for the Department of Justice hailed the victory in a statement yesterday and expressed “hope” that “the Supreme Court is able to address the matter of nationwide injunctions once and for all at the appropriate juncture.” Well, the best way to ensure that this illegal practice doesn’t continue is for the other branches to refuse to give it effect.

Congress has plenary power over the Supreme Court’s subject-matter jurisdiction and judicial procedures and has full power over the entire existence of lower courts. It’s a disgrace that Republicans in Congress have failed to address this with a relentless legislative push.

As for the president and the attorney general, they must heed the principle of President Lincoln and the words of his attorney general, Edward Bates: “That is the sum of its [judicial] powers, ample and efficient for all the purposes of distributive justice among individual parties, but powerless to impose rules of action and of judgment upon the other departments.”