A Win For the Constitution
Shawn is a mathematician working for a prize-promotion company in Dallas, TX. A Canadian, his first degree is in comparative constitutional theory. Shawn does polling design for political campaigns. He occasionally helps with math for vaccine researchers in Germany and a soccer club in Spain.
Last Wednesday the Supreme Court allowed the Trump Administration’s new rules regarding asylum seekers to go into effect, pending further litigation. In the process, the court did something else that went largely unreported but might be even more important: the court knocked down a nationwide injunction by an over-reaching federal judge, and delivered a message that nationwide injunctions are not a great idea. Whatever your position on asylum seekers, Wednesday’s ruling is a win for the Constitution and the will of the people as expressed through the executive and legislative branches of government.
Here is an incredibly brief history of the case over the last few weeks:
· District Judge Tigar, sitting in California: The Trump Administration’s policy is terrible and I’m blocking it nationwide until it’s declared constitutional.
· Ninth Circuit Court of Appeals (2-1, Motions Panel): We’re usually pretty freewheeling, but we think you’ve got to confine your ruling to the border area of our Circuit (realistically, California and Arizona). We don’t think you can issue a nationwide injunction.
· Judge Tigar, Monday: Watch me. We need one policy across the whole border. And I just issued the nationwide injunction again!
· 9th Circuit, Tuesday: Yeah, um, STOP IT. It’s only CA and AZ and we’re done asking nicely.
· Supreme Court, Wednesday (7-2): The Administration and Judge Tigar agree that we need a unified policy across the whole border—it’s going to be the Administration’s policy while this gets litigated.
Nationwide injunctions are a very bad idea, and I’ve railed against them before here.
Here’s Samuel Bray’s seminal blog piece that tears them apart.
To recap, a nationwide injunction allows any of over 600 federal judges to substitute his or her opinion for that of the elected legislative or executive branches. It lets litigants judge-shop and litigate until they eventually stumble on a judge willing to do their bidding. There’s also the possibility of “duelling national injunctions” from different judges on different benches.
This isn’t even a “red” or “blue” issue. True, this time, it’s a Trump policy the judge tried to invalidate. In recent years it’s been Republicans touring the Fifth Circuit looking for nationwide injunctions to kill Obamacare. Everyone’s been using this tool, and the Supreme Court needs to tell everyone to knock it off.
Judicial Review is a pillar of the American republic. Agreed: courts need to be able to test the validity of ordinary laws and executive orders against the higher law that is the Constitution. If a law or rule is going to get thrown out or put on ice, though, that needs to be done by the Supreme Court—either explicitly by ruling on a case, or implicitly by refusing to hear an appeal from a lower court and thus letting the lower court’s verdict stand. It mustn’t be up to any one of hundreds of federal judges. Last week’s action is the strongest sign yet that the Supreme Court understands and will enforce this idea.