Sunday, September 16, 2018


AG Sessions is all set to stomp out the power a single judge now holds, where one receptive federal district can totally stonewall President Donald Trump’s policies.
Sessions Fights Back Against Activist Judges

The Attorney General issued a set of guidelines to ensure U.S. Attorneys have legal ammunition to use in court when fighting unconstitutional nationwide injunctions designed to tie the president’s hands.

Attorney General Jeff Sessions promises to end the “judicial activism” thwarting the administration. The Department of Justice vows to fight back hard, stripping out of control Obama-era federal judges of the power to legislate from the bench through nationwide injunctions.
Sessions announced a harsher tone for litigation policy at a speech in Missouri on Thursday where he spelled out a new set of guidelines for United States attorneys.
He’s all set to stomp out the power a single judge now holds, where one receptive federal district can totally stonewall President Donald Trump’s policies all across the entire country. Many of the 25 national injunctions issued since President Trump took office were totally intended to tie the hands of the administration.
For instance, when Hawaii’s federal Judge Derrick Watson blocked the administrative order banning travel from high risk-predominantly Muslim countries, Sessions came unglued.
“I am really amazed that a judge sitting on an island in the Pacific can issue and order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”
When President Trump tried to cancel Barack Obama’s Deferred Action For Childhood Arrivals program, he got the same treatment. “This trend must stop.” Attorney General Sessions declared. “We have a government to run. The Constitution does not grant to a single district judge the power to veto executive branch actions.”
The attorneys fighting for team Trump came into court totally unarmed but Sessions just changed that.
Whenever a Department of Justice attorney is presented with a case that challenges “a federal government program, regulation, order, or law,” he wants them to apply “consistent positions.”
They are to aggressively argue that “overbroad injunctive relief” is not constitutional and there are limits on what judges are allowed to do. They’re “acting outside the bounds of their authority.”
Longstanding legal precedent justifies the argument that “equitable relief must be tailored to the particular final agency action and parties before the court” and also “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”
The Attorney General outlined six very specific points to be used in court from now on.
First and foremost, Department lawyers need to remind the judges that blanket injunctions “exceed the constitutional limitations on judicial power.” The constitution does not permit them to bind anyone into a ruling who isn’t directly involved in the case in front of them.
“Nationwide injunctions often afford relief not only to persons who are not parties to a case but even to those who would have had no standing to seek an injunction in the first place, thereby affording relief far beyond ‘the inadequacy that produced the injury in fact that the plaintiff has established.’”
The Supreme Court of The United States already recognizes the “general rule” that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”
The second point Sessions raises is that what the courts have been doing is a fairly recent invention and on the very shaky ground to start with, calling it “inconsistent with centuries of judicial practice.”
“For most of our history, courts understood judicial power as fundamentally the power to render judgments in individual cases and concluding that nationwide injunctions are legally and historically dubious.” There were only 22 issued in the first 200 years of our country but recently, “courts issued 22 in just over one year.”
The third mandatory argument in injunction cases is that they step on the toes of other courts. Lower courts often issue conflicting rulings on controversial legal issues and that is a good thing.
“The issuance of nationwide injunctions seriously impedes decision-making in the federal courts by interfering with percolation of a contested legal issue.”
One of the primary benefits of our judicial system is the ongoing dialogue that develops over time among the lower courts, whose decisions ordinarily do not bind one another pending review by the Supreme Court.
At the very minimum, the Supreme Court will have “multiple reasoned lower court opinions and the consequences that have flowed from them” to look at when they make the final ruling.
The Supreme Court says, “a rule allowing one court to issue a definitive ruling against the government in such cases ‘would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.”
Fourth, nationwide injunctions undercut the rule of law itself.
They “improperly undermine “well-established legal rules that reflect considered judgments about how to ensure the orderly resolution of disputed legal issues in specific circumstances.” For instance, we have the “class action system.”
With the injunctions, no class has been certified so “the only interests at stake are those of the named plaintiffs.” All the unrelated non-plaintiffs have no judicial “standing.” Otherwise, why have a class action process in the first place?
Litigation culminating in a nationwide injunction “is lopsided,” Sessions explains. A win for the plaintiff “binds the government” but “a win by the government allows additional plaintiffs to continue to challenge a law or policy until one of them succeeds.”
The fifth arguing point is that the injunction practice “interferes with judgments that properly belong to Congress and to the Executive Branch.” They take away the president’s ability to do his job as an administrator and the “opportunity to determine whether or how to apply a particular ruling beyond the parties in the case.”
Sixth, the use of trickery “undermines public confidence” in the courts. Activist groups “forum shop” to find the most receptive judge. That impacts the public’s confidence in the rule of law by calling fairness and impartiality into question.

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