AG William Barr demands end to nationwide injunctions empowering lone ‘sympathetic’ judges

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Attorney General William Barr is calling for an end to nationwide injunctions, which have become recurrent obstacles in the way of President Trump’s agenda.

With the frequency of judges’ orders blocking the enforcement of federal laws and policies on the rise, Barr’s op-ed in the Wall Street Journal escalates the Justice Department’s fight to check this facet of the judicial branch’s power.

Nationwide injunctions, he wrote, “create an unfair, one-way system in which the democratically accountable government must fend off case after case to put its policy into effect, while those challenging the policy need only find a single sympathetic judge.”

Barr alluded to the framers of the Constitution, asserting they never intended the courts to “act as a ‘council of revision’ with sweeping authority to reach beyond concrete controversies and rule on the legality of actions taken by the political branches.”

The rising number of injunctions have affected both Democratic and Republican administrations, but opponents of the Trump administration have accelerated the use of the procedural device. Barr said there were only 20 national injunctions during the eight-year Obama administration, while there have already been roughly 40 in the two-and-a-half years Trump has been in office.

“Shrewd lawyers have learned to ‘shop’ for a sympathetic judge willing to issue such an injunction,” Barr said. “These days, virtually every significant congressional or presidential initiative is enjoined — often within hours — threatening our democratic system and undermining the rule of law.”

Last year Barr’s predecessor, Jeff Sessions, released a memo to DOJ litigators with guidelines for arguing against the issuance of nationwide injunctions that halt executive branch actions as legal battles play out in the courts.

Among the injunctions handed down in the Trump era include those targeting a travel ban on Muslim-majority countries and restrictions on transgender individuals from serving in the U.S. military.

The “best example” of “harm” caused by these national injunctions, Barr said, relates to the legal fight over Trump trying to scrap the Deferred Action for Childhood Arrivals program, which offers protections for individuals brought to the U.S. illegally as children, instituted under former President Barack Obama.

Barr said the use of an injunction sabotaged a chance for political compromise.

“Far from solving the problem, the DACA injunction proved catastrophic,” he said. “The program’s recipients remain in legal limbo after nearly two years of bitter political division over immigration, including a government shutdown. A humanitarian crisis — including a surge of unaccompanied children — swells at the southern border, while legislative efforts remain frozen pending Supreme Court resolution of the DACA case.”

Critics of the Trump administration argue national injunctions as essential to protect people from what they view as illegal acts done unilaterally.

Responding to a speech Barr gave in May railing against federal judges who impose federal injunctions, Rep. Ted Lieu tweeted the Trump administration would not get so many court injunctions “if it didn’t engage in so many blatantly unconstitutional actions.” The California Democrat added, “You want the Imperial presidency. But you are weakening the presidency with your stupid legal arguments.”

The attorney general warned the Democrats’ eagerness to embrace injunctions could one day come back to haunt them.

“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,” he said.

Barr ended his op-ed by quoting conservative Supreme Court Justice Clarence Thomas, who said in 2018 that nationwide injunctions are “legally and historically dubious” and called on federal courts to consider adjudicating their use.

“It is indeed well past time for our judiciary to re-examine a practice that 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 said in conclusion.

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