Though the practice most certainly isn’t new, there has been a noticeable uptick since President Donald Trump took office in federal district judges issuing nationwide injunctions that put a freeze on the implementation of policies that touch on important — and, at times, partisan — issues.
But Attorney General William Barr has apparently seen enough of that. According to The Washington Examiner, he’s calling for the judicial branch to rein in the activist judges and refrain from issuing any further injunctions.
Not the Founders’ intention
Barr made his demand known in an op-ed published by The Wall Street Journal.
The attorney general wrote that the injunctions “create an unfair, one-way system in which the democratically accountable government must fend off case after case to put its policy into effect, while those challenging the policy need only find a single sympathetic judge.”
Hearkening back to the founding of our nation and the framers of the Constitution, the attorney general suggested that the courts were never intended to “act as a ‘council of revision’ with sweeping authority to reach beyond concrete controversies and rule on the legality of actions taken by the political branches.”
Trump v. Obama
Of course, nationwide injunctions have been issued against prior administrations, both Democrat and Republican alike, but the frequency of the use of that judicial tool has risen dramatically since President Trump took office in January 2017.
In fact, Barr noted, only 20 nationwide injunctions were issued during the eight years former President Barack Obama held office. In comparison, there have already been at least 40 such injunctions issued in the two-and-a-half years since Trump was sworn in.
Alongside partisan activists dedicated to opposing the Trump administration’s every move, Barr wrote, “shrewd lawyers have learned to ‘shop’ for a sympathetic judge willing to issue such an injunction.”
Indeed, “these days, virtually every significant congressional or presidential initiative is enjoined — often within hours — threatening our democratic system and undermining the rule of law,” Barr added. The AG warned Democrats that, while injunctions could be serving their partisan agenda at the moment, there could easily come a day when a future blue administration faces the same opposition.
Legal limbo
While there are a plethora of enjoined cases to highlight — such as the injunctions against Trump’s security-related travel ban or the restrictions against transgender military service — Barr pointed out that the “best example” of the sort of “harm” caused by nationwide injunctions was the one imposed against the administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program, which had been created by Obama via executive order.
In Barr’s view, that summary injunction undermined any possibility of a compromise on immigration and border security policies that could have included DACA as part of a deal, and instead, left program enrollees in a state of “legal limbo” while the appeals process slowly but surely reaches the Supreme Court for a final decision.
“It is indeed well past time for our judiciary to re-examine a practice that embitters the political life of the nation, flouts constitutional principles, and stultifies sound judicial administration, all at the cost of public confidence in our institutions,” Barr wrote. And I couldn’t agree more.