By Daniel Horowitz
Yes, one House committee is finally stepping onto the field in the one-sided battle against judicial tyranny. After years of endless legislative fiat from single district and circuit judges, the House Judiciary Committee is voting this week on a bill that clarifies once and for all that courts do not have the power to issue injunctions against abstract policies and statutes outside the parties before that particular court. Now the only question is whether the Republicans will unite behind a cogent message of keeping legislation within the legislature and place this provision in the budget bill or at least bring it to a vote before the full House and Senate.
The president’s first year and a half in office has been marred by the erroneous belief within the political system that the ACLU can shop for a judge who agrees with it on policy and use a straw-man plaintiff to veto abstract policies. That single judge, typically shopped around to a circuit where the plaintiff will automatically win the appeal, ensures that commonsense policies well within the purview of the political branches are shut down indefinitely at the flick of the wrist from one judge until the Supreme Court is willing to take the appeal, which could take months or years. Even if the other side secures a victory at the Supreme Court, the Left continues to shop around to the same district judges a new case with a slight nuance and starts the cycle all over again.
Ending universal injunctions
H.R. 6730 would simply clarify that no federal court can issue injunctive relief outside the parties before that court. The bill, sponsored by Rep. Bob Goodlatte, R-Va., is just one paragraph. It categorically ends the practice of universal injunctions for all courts, even the Supreme Court. In other words, it doesn’t just limit a court’s reach to its geographical jurisdiction (for example, barring district or circuit courts from issuing injunctions outside their respective territories) but even outside the parties themselves.
Thus, the minute a court renders an opinion in a case, it wouldn’t instantaneously become a law or a veto binding on everyone. That is the plain understanding of the judicial power, as distinguished from the legislative power or an executive veto, at least until the recent era of judicial supremacy.
It would have been useful for the bill to go a step further and tighten up the rules for class action lawsuits. There is some concern that even after this bill, judges will be more liberal in certifying a class, thereby making everyone a party to the lawsuit and ostensibly shut down a policy nationwide. For example, when rendering a liberal opinion for an illegal alien, judges could certify all illegals as a class. However, this is a welcome start and may serve as the first step in Congress finally reining in the courts. The question now is whether House leadership will allow an immediate vote on the floor.
President Trump and Attorney General Sessions need to make this a big issue. They have just as much responsibility to properly interpret the Constitution as the other two branches do. They should make it clear that, even absent passage of this bill, they will not recognize the validity of universal injunctions. As Justice Thomas said, nothing in law or the Constitution authorizes judges to proclaims universal injunctions, and in fact, they violate the plain language of Article III’s definition of the judicial power extending only to individual “cases and controversies.” And as mentioned before, the fact that a statute (Federal Rule of Civil Procedure 23(b)(2)) provides rigid procedures for certifying a class action suit as a remedy for those who are not parties before the court is a clear indication that a judge cannot render an opinion as a de facto class action ruling without first certifying the class.
Democrats would be wise to agree to this politically neutral bill. It would apply to injunctions issued against policies of both sides. With polling looking more favorable for them by the day, they must remember that a time will come when they control government and the other side uses forum-shopping to essentially veto their policies. We either have three branches of government or one. There really is no other issue that so systemically affects every other policy more than ending this practice of universal injunctions, as Justice Thomas warned in his concurrence in Trump v. Hawaii.
Reforming the Ninth Circuit
In addition to ending universal injunctions, the House Judiciary Committee is passing another judicial reform bill to reorganize the Ninth Circuit Court of Appeals. Besides being way out of bounds in terms of jurisprudential soundness, the Ninth is universally regarded as too big and too unaccountable, as it controls such a wide swath of territory. H.R. 6754 would stop short of splitting the Ninth Circuit and creating a new circuit, as some of us have suggested. However, it would divide the current structure of the Ninth Circuit into three more localized divisions: a northern division for Alaska, Idaho, Montana, Oregon, and Washington; a middle division for the northern and eastern districts of California, Hawaii, Nevada, Guam, and the Northern Marianas; and a southern district for Arizona and the central and southern districts of California.
Structurally, any appeals from the district courts in the respective judicial districts would immediately go to the localized division of the Ninth Circuit for appeals. If divisions within the circuit disagree on outcomes, then the case would move to the “central division,” an ad hoc supreme body of the Ninth Circuit that would consist of the chief judge and four judges from each of the three divisions.
This bill was inspired by the recommendations of former Justice Byron White in a commission created by Congress 20 years ago.
This bill is definitely better than the status quo, as it would at least dilute the power of the Ninth Circuit. However, it still ties Arizona to parts of California, and ultimately, the states would be subjected to the same super-majority of existing liberal judges both at the district division level and at the central division level. A better proposal would be to limit the Ninth Circuit to California and Hawaii while creating a Twelfth Circuit for the remaining states. If Republicans truly plan to work this bill through both houses and sign it into law, then this bill makes sense as a compromise, but if they are going to throw it in the garbage anyway, they as may as well pass a real bill splitting the Ninth Circuit.
Let’s just hope these bills don’t go the way of some other good legislation that passed this panel and never saw the light of day on the House floor and in the Senate.