Trump seeks to limit judges' powers over injunctions after hard knocks

President TrumpDonald John TrumpTrump: officials plan to use court-ordered removals to expel migrant families: report Senator asks Senate to investigate Giuliani's planned trip to Ukraine seeks to prevent lower courts from issuing wide-ranging injunctions, which could significantly limit the powers of judges.

This decision came as groups opposed to Trump were able to obtain several of its policies, including those aimed at limiting immigration, put on hold by national orders issued by lower courts in battles that were finally decided by the Supreme Court.

Defense groups that pushed judges to issue injunctions nationally said they were needed to protect citizens against policies they considered harmful, and some legal experts agree that the right to pronounce such actions is protected by the Constitution.

But opponents argue that injunctions should be applied more restrictively to directly affected groups, saying the more liberal use of injunctions hurts the justice system.

Vice President Pence this week put the issue on the agenda, claiming in a speech to the conservative federalist society that the administration had been "unjustly" targeted by injunctions – and promising to unveil in the next few days ways to submit the problem to the Supreme Court. .

"So I say to everyone gathered here: for our freedom, our security, our prosperity and the separation of powers, this period of judicial activism must end," said Mr. Pence. "The US Supreme Court must make it clear that district judges can not decide more than the cases before them."

Ending injunctions nationwide would mark President Trump's latest attempt to shape federal courts, following the confirmation of two Supreme Court justices and the installation of more than 100 of his judicial choices by the Senate.

Opponents of Trump argued that national injunctions are necessary to protect those who may not be prosecutors, but who would nonetheless be affected by a particular policy or legislation.

"When the scale of the harm spreads across the country, relief should be on a national scale," said The Sasha Buchert senior counsel at The Hill LGBT advocacy group Lambda Legal.

She cited the ban on transgender service members as an example of a national policy that the group was able to counter by convincing a judge to issue an injunction at the national level, arguing that it was not the case. action would have had more soldiers than those who sued. .

The administration has finally put in place a more limited form of banning members of transgender services.

Cecillia Wang, deputy legal director of the American Civil Liberties Union, said that the efforts of the administration to limit the scope of the injunctions "are simply aimed at obstructing justice."

Wang also said that the power to issue injunctions at the national level is protected by the Constitution.

"I can not take seriously the vice-president's threat to overturn what the country's founders, the drafters of the constitution, intended to protect, against illegal action by the executive" Wang said.

But other legal experts oppose national injunctions. They argue that judges' decisions on blocking policy should apply only to the litigants, and that courts override their obligations by issuing very different injunctions.

Samuel Bray, a law professor at the University of Notre Dame who spoke out against national injunctions, said such large-scale orders "took the courts out of their constitutional role."

He argued that district courts were designed to rule on issues involving specific parties, not for an entire nation. And if those involved in a lawsuit want the order to be enforced nationwide, Bray said, they could still file a lawsuit to do so.

"Everyone in the class will win or lose together," said Bray. And he noted that if one party loses its case for a national injunction before a judge, "someone else may take another bite to the apple in another court".

Nicholas Bagley, a professor of law at the University of Michigan, also opposed to national injunctions, said the policies challenged in court deserved to be subjected to "rigorous" scrutiny in court and not just put on hold by the decision of a single judge.

"What troubles me is why everyone would agree to give judges the power to terminate important government programs simply because they can trick their pants into a particular case," he said. said Bagley.

It is unclear how the Supreme Court would rule if the question arose before them.

Justice Clarence Thomas, a Conservative appointed by President George H. W. Bush, has previously asked the Supreme Court to address the issue of national injunctions, if they continue to be used in the legal system.

But some experts said the rest of the court could be wary of the decision to remove judges from power currently used throughout the United States and enjoying a strong legal precedent.

It would also be difficult to bring a case before the Supreme Court to rule only on the constitutionality of national injunctions, since challenges to injunctions are often part of broader proceedings.

This means that judges could effectively sidestep the issue and decide on the merits of an injunction as it applies to a particular case, without necessarily ruling on the broader constitutionality of the injunctions at the national level.

Legal experts have also pointed out to The Hill that powerless parties have long supported injunctions, while power has opposed them.

Democrats and the Obama administration, for example, have opposed national injunctions issued in response to some of the former president's policies, such as ObamaCare and the DACA program (deferred action for child arrivals).

"The party that assumes the presidency does not like them. And the party no longer in power likes them, "Amanda Frost, a professor of law at the American University, told The Hill.

Frost said that she supported the existence of national injunctions. But she added that judges should be cautious in issuing orders and only do so if they deem it necessary to protect a wide range of Americans wrongly affected by federal policy.

But she rejected the argument put forward by Pence and others that a federal judge should not be allowed to make a decision that could affect the country as a whole.

"This is how our district courts work, a single judge must decide many general questions about the policy applied at the national level," said Frost.

And she noted that the Trump administration could still appeal the decision of a judge and get a stay of injunction, as was recently the case of an order that would have suspended a Trump policy forcing some asylum seekers to stay in Mexico while their cases are being processed

In the end, said Frost, the Conservatives who are now seeking to limit injunctions could come to regret it if the Supreme Court ruled in their favor.

"It's a short-term vision to get rid of them and say," Well, that will produce more politics than I like. "It may not be the case," she said.