Trump is going after Democrats’ favorite lawfare tactic, AG Barr signals US President Donald Trump has already faced nearly 40 nationwide injunctions against his policies, issued by federal judges following complaints by Democrats. Now his Justice Department is saying it might move against the tactic.
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Remember the “Muslim ban”? One of Trump’s first executive actions was to suspend travel to the US from several Muslim-majority countries, only to see it immediately blocked by federal judges in Hawaii and California. The expanded and revised travel ban was eventually upheld by the US Supreme Court, but only after more than a year of litigation.
The same scenario has played out with nearly every attempt by the chief executive to make policy adjustments to US immigration, with judges like Jon Tigar in San Francisco issuing sweeping nationwide injunctions blocking the measures and literally making a federal case out of them.
On Friday, Attorney General William Barr published an op-ed in the Wall Street Journal, arguing for ending the nationwide injunctions as “a modern invention with no basis in the Constitution or common law.”
The practice “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 argued.
“Partisans who cheer this trend should realize that someday the shoe will be on the other foot,” the AG wrote. “One can easily imagine the signature policies of a future Democratic administration—say, on climate change, immigration or health care—being stymied by courts for years on end.”
Those paying attention to Barr’s words may have noticed he said the exact same thing back in May, pointing out that the Trump administration had already faced 37 such injunctions by that time, versus 20 during the Obama administration, or the total of 27 issued over the course of the entire 20th century.
Why bring this up again now? Barr offers a clue by bringing up Deferred Action for Childhood Arrivals (DACA), an Obama-era program aimed at giving children brought into the US illegally protection from deportation and a path to citizenship. It was never codified into law, and therefore could be canceled by another executive action. Yet when Trump tried to do so in 2017, a federal judge blocked it with a nationwide injunction.
Barr argued the injunction was “catastrophic,” leaving DACA recipients in legal limbo and no closer to a legislative solution after two years, while the case has been pending before the Supreme Court.
Trump seemed optimistic about the outcome of that case, when he fired off a series of tweets about DACA on Friday morning. Later in the day, the White House quoted parts of Barr’s op-ed to the press pool, making sure reporters wouldn’t miss it.
Another interesting thing in the op-ed was that it quoted the opinion of Justice Clarence Thomas in the travel ban case, when he called the injunctions “legally and historically dubious” and urging the practice to stop – or else.
“If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so,” Thomas wrote in a concurring opinion in Trump v. Hawaii (2018).
Months ago, during a speech to the Federalist Society, Vice President Mike Pence said the Trump administration was looking for the appropriate case to ask the SCOTUS to end nationwide injunctions. Judging by Barr’s op-ed, it now appears they might have found one.
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