From the bench in San Francisco this month, U.S. District Judge Jon S. Tigar unilaterally decided what our national border policies are. With a migrant caravan of thousands amassed just south of San Diego, this one judge blocked President Trump’s executive order banning asylum applications from anyone who doesn’t come through a legal port of entry.
Tigar’s nationwide injunction means anyone from the caravan who makes it into California can stay in the U.S. for as long as it takes to process his or her asylum claim — a process that can take years. Asked by the Department of Justice last week to lift this injunction, Tigar refused.
This is just the latest example of abuse of judicial injunction powers. It’s time for Congress to reassert its constitutional prerogatives by reining in the out-of-control judiciary.
Individual federal district courts never issued preliminary injunctions overturning entire policies enacted by executive order until the 1960s. But in the last decade — and especially since Donald Trump entered the White House — such injunctions have become a regular feature of American governance.
Tigar’s injunction marked the 26th time a judge has blocked a Trump administration policy nationwide without so much as a trial. That’s more injunctions in less than two years than any other president endured through his entire tenure in office.
The ideological leanings of certain judges and the hysterical focus among liberal lawyers on “resisting” Trump have certainly played a role in this state of affairs. But a consensus is forming — among conservatives, libertarians and liberals alike — that this is not how the government is supposed to function.
This spate of judicial bullying has laid bare a major structural problem with our federal courts: When nationwide injunctions are too easily obtained, the country is essentially ruled by a judicial dictatorship.
Activist lawyers know that a major test case takes at least months — and more often years — to make its way through the federal court system to the Supreme Court. If they can find just one federal judge somewhere in the country who is sympathetic to their arguments, they can set policy for the entire country while that lengthy process plays out.
Trump’s ban on travel from terror-prone countries, for example, was eventually upheld by the Supreme Court as a constitutional use of executive authority. Yet for months, the American Civil Liberties Union and other liberal groups were able to bend the entire executive branch to their will because they found a sympathetic ear among federal judges in Hawaii and California who were willing to put an injunction in place against the travel ban.
Encouraged by that success, liberal activists have used the same antidemocratic tactic to force the Department of Justice to hand over federal grant money to so-called sanctuary cities, compel the armed services to accept transgender military recruits, and foist various other policy prescriptions onto the whole nation.
The desperation stirred up among activists who detest Trump’s policies has brought the problem of nationwide injunctions to the fore. This is not, however, simply a left vs. right issue.
During Barack Obama’s presidency, conservatives also pursued a number of nationwide injunctions to frustrate his agenda and upset the normal process of court cases. Even today, Democrats have concerns that a nationwide injunction out of a court in Texas could render Obamacare unworkable.
This is a threat to the rule of law that needs to be fixed. The Justice Department has already issued a memo directing U.S. attorneys to fight the imposition of nationwide injunctions all the way to the Supreme Court. In time, the Supreme Court and the circuit courts could limit the circumstances under which lower courts are able to issue nationwide injunctions.
Ultimately, though, the federal courts operate under parameters and rules set by Congress. That’s why lawmakers have proposed legislation to make clear to federal judges the very limited circumstances under which they can issue these sweeping injunctions.
This isn’t about politics; it’s about returning the courts to their proper constitutional role. The executive branch cannot function effectively if activist lawyers — without winning a single election — can set policy for months or years just by shopping around for a federal judge sympathetic to their cause.
Joseph DiGenova was the U.S. attorney for the District of Columbia from 1983 to 1988.