Yesterday I reported on the back and forth between an Oakland ‘Obama’ Judge and the 9th Circuit. The 9th limited a lower court injunction (twice) on Trump’s asylum rule to AZ and CA but SCOTUS, having had enough, has stepped in and on the issue.
In what appears to be a 7-2 decision, the Supreme Court removed the injunction and let the regulation go into effect nationwide. The order removes the injunction through trial and appeal to the Ninth Circuit. If the Ninth Circuit rules against the administration, the stay of any injunction remains in place until the Supreme Court either declines to hear the government’s appeal or when the Supreme Court makes a decision.
While the 9th Circuit did its job by limiting judicial overreach, the US Supreme Court said that’s not good enough.
It relates back to a separate article from May 2019 in which AG Bill Barr questions why district court judges were allowed to exercise more power than the Chief Justice.
He talks to the problem of local district court judges invoking nationwide injunctions a power even the Chief Justice of the Supreme Court does not have.
The left loves to whine about Trump’s executive orders (to be fair, the way we complained about Obama’s). Most of Trumps are to overturn Obama’s so I think we win that argument. But consider the power and abuse Barr describes.
When (for this discussion) the Left disagrees with a Trump EO overturning an Obama EO, someone files a lawsuit in court to have it blocked. One judge, often unelected, can issue a nationwide “executive” order of his own (an injunction) with the force of law.
William Barr rightly believes that is wrong.
“…when a court grants a nationwide injunction, it renders all other litigation on the issue largely irrelevant. Think about what that means for the Government. When Congress passes a statute or the President implements a policy that is challenged in multiple courts, the Government has to run the table—we must win every case. The challengers, however, must find only one district judge—out of an available 600—willing to enter a nationwide injunction. One judge can, in effect, cancel the policy with the stroke of the pen.”
The Supreme Court’s quick response to the asylum injunction tennis match out in Oakland may be in response to these concerns. They have not only put a stay on the Oakland court’s injunction, but they have also blocked it indefinitely. Or at least until the case has been heard by the 9th. And then, if necessary, by the Supreme Court itself.
The statement seems clear. District Courts do not have the power to pass down federal edicts. Whether the other 599 district courts get the message is not clear. And we can’t expect SCOTUS to clear the decks to undo every ruling of this kind nationwide.
But this is a beginning, and it is a step in the right direction.
