It’s the latest sign of how political polarization is changing the rules in Washington, even for the judiciary.
In a wide array of politically charged disputes, the Trump administration’s top courtroom lawyer, Solicitor Gen. Noel Francisco, has repeatedly gone directly to the Supreme Court, short-circuiting federal appeals courts to seek quick relief when district judges block the president’s policies.
Critics say Francisco’s tactics risk politicizing the high court. His defenders say he’s only reacting to what they — and President Trump — see as politically driven rulings by federal judges in California and other blue states. Trump himself, in recent tweets and other public comments, has openly said he sees the Supreme Court as a friendly forum now that he’s succeeded in placing two justices on it, solidifying a conservative majority.
In the past, the solicitor general would typically file a lengthy appeal petition with the high court if the government lost a major case in a federal appeals court and ask the justices to review the matter.
But that takes time — far too much time for Trump, who has been angry about having his orders, on immigration and asylum, for example, repeatedly halted by a single federal district judge.
So Francisco has opted for speed — albeit often while professing hesitation.
“It is with great reluctance that we seek such emergency relief,” he said last week in asking the high court to lift the order from a federal district judge in Seattle that blocked Trump’s proposed ban on most transgender people serving in the military.
On the same day, Francisco filed two similar appeals that urged the justices to also lift nearly identical orders from judges in Riverside and Washington, D.C.
The new approach has its roots in Trump’s first week in the White House, when he issued a broad and confusing proclamation to bar U.S. entry to travelers from several majority Muslim countries, only to have the order blocked nationwide by a federal judge in Seattle.
Since then, judges have blocked the president’s proposed federal funding limits for so-called sanctuary cities, Trump’s repeal of the Obama-era order that shielded from deportation the “Dreamers” who were brought to the country illegally as children, a broader religious exemption for employers who do not want to pay for employees’ insurance coverage of contraceptives, and the new limits on transgender troops.
Last month, Francisco proposed that the high court bypass the appeals courts and rule directly on whether Trump’s ban on transgender troops is constitutional. In doing so, he cited past national emergencies in which the Supreme Court had intervened directly to review a district judge’s ruling, including a 1952 case in which a strike closed the steel mills during the Korean War. His comparison drew mockery on legal blogs.
This month he came back with a second option. In his more recent appeals, Francisco said the justices should lift the judges’ orders so the administration can enforce its ban on transgender troops while the related cases work their way toward the high court.
Earlier in December, Francisco cited the “ongoing crisis at the southern border” and asked the justices to intervene in a pending dispute over asylum claims for immigrants who cross the border illegally to file their petitions. A few weeks before, Trump had issued a proclamation to change long-standing rules to make migrants “categorically ineligible” for asylum if they did not arrive at a designated port of entry.
Lawyers for the American Civil Liberties Union said the new policy violated the law. In the Refugee Act of 1980, Congress said that “any alien who is physically present in the United States or who arrives” here, “whether or not at a designated port of arrival” and “irrespective of such alien’s status, may apply for asylum.”
The ACLU sued in federal court in San Francisco on behalf of several humanitarian groups that help refugees, and U.S. District Judge Jon Tigar agreed that Trump’s order “irreconcilably conflicts” with federal law. He issued a nationwide order blocking the new rule on asylum, which Trump promptly denounced as the work of “an Obama judge.”
The administration appealed, but the 9th Circuit Court of Appeals upheld the judge’s order in a 2-1 opinion written by Judge Jay Bybee, an appointee of President George W. Bush. “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office,” he wrote on Dec. 7.
Four days later, Francisco lodged his emergency appeal to the Supreme Court. Tigar’s order “is deeply flawed and should be stayed pending appeal,” he asserted. The high court could act on the appeal at any time.
Lawyers who closely follow the court agree that Francisco’s frequent emergency appeals are unusual and a break with custom, but they differ on whether it is a smart or effective strategy.
Washington attorney Nicole A. Saharsky, who worked for 10 years in the solicitor general’s office, said the strategy has an obvious logic. “The government thinks it will win in the Supreme Court, so why don’t we go where we can win?” she said. “But there is the ‘boy who cried wolf’ problem. It could be counterproductive to say everything is urgent.”
“He’s been pretty successful so far,” said another Washington lawyer who asked not to be named. The high court has not flatly rejected Francisco’s appeals and has given the administration several partial victories. But these have come in terse orders that include little or no explanation.
For example, Francisco sent a series of emergency requests asking the court to stop a trial in New York where the state’s lawyers were challenging the Trump administration’s plan to add a citizenship question to the 2020 census. The state said the added question — by discouraging some noncitizens from participating in the census — would lead to an undercount of the population and, as a result, a loss of funding and political representation for New York, California and other states with high numbers of immigrants.
The solicitor general argued that the state’s lawyers were wrongly seeking to explore the “mental processes” of Commerce Secretary Wilbur Ross, who authorized the change. The New York lawyers asserted that Ross misled Congress when he said the Justice Department sought the change, citing emails showing that Ross had asked the department to request the change.
Without trying to resolve the dispute, the justices rendered a split decision. They shielded Ross from answering questions under oath, but let the trial proceed. They then took the highly unusual step of granting a review of the case, before the district judge had issued a ruling.
The Trump administration’s wave of emergency appeals may prompt the Supreme Court to grapple with the broader issue of nationwide injunctions handed down by a single federal judge.
Notre Dame Law School professor Samuel L. Bray, the leading expert on the issue, wrote last year in the Harvard Law Review that such national injunctions were unheard of for most of American history. Federal judges decided cases based on lawsuits brought by plaintiffs, he said, but their rulings were confined to the plaintiffs who brought the case, not extended to the entire nation.
During the 1960s and 1970s, he said, a few judges handed down rulings that broadly limited the government, but national injunctions took off near the end of the Obama administration.
Stymied by Congress, President Obama issued orders and proclamations with broad effect, including shielding the millions of undocumented Dreamers and parents with legal children from deportation, and protecting transgender students in public schools. Republican state attorneys brought lawsuits in Texas, and conservative judges handed down nationwide injunctions that blocked several of Obama’s decrees.
Under Trump, the process accelerated. While Obama mostly acted after years of seeking new legislation, Trump immediately favored executive orders and proclamations over the slow process of legislation. Democratic state attorneys on both coasts quickly went to federal courts and obtained broad national injunctions from liberal judges, blocking Trump’s plans.
“Whether you are a Democrat or a Republican, sometime in the last three years, your ox has been gored by a national injunction,” Bray told a House committee.
Francisco has repeatedly raised the issue with the Supreme Court. “In a span of less than two years, district courts have issued 25 nationwide injunctions or temporary restraining orders against major policy decisions in areas including national defense, national security, immigration and domestic policy,” he said last week.
He also offered a proposal that might appeal to Chief Justice John G. Roberts Jr. and several colleagues. Francisco said the court should limit the scope of injunctions to the plaintiffs who brought the suit.
For example, the Seattle judge’s ruling against Trump’s policy for transgender troops was brought on behalf of “nine individuals who are currently serving in the military or seeking to join it,” Francisco said. The judge’s order should be limited to protecting them, he proposed, and not the entire nation.