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Political Editors / Feb. 7, 2019

Lower Courts Obstruct Trump at Unprecedented Rate

He’s seen more lower courts block his executive actions than 42 previous presidents combined.

Lower federal courts have issued injunctions blocking President Donald Trump’s executive actions a record 30 times. “That number,” The Daily Signal reports, matches “the total for the first 42 of the 45 presidents so far in American history.” We knew judicial activism was a problem, but that’s astounding.

The majority of the injunctions, the Signal explains, were “against Trump administration policies providing extreme vetting of immigrants from countries deemed to be failed states; denying funding to sanctuary cities that won’t cooperate with federal law enforcement on immigration law; and tightening the asylum process for illegal immigrants, among other issues.” In other words, policies that aren’t exactly conventional.

To make matters worse, these injunctions weren’t merely regional in scope but national. Not surprisingly, the source for most of the injunctions came from judges sitting on some the country’s most left-leaning courts, such as the Ninth Circuit Court of Appeals. Prior to 1963, no lower court had ever issued national injunctions, and it wasn’t until the 1980s that nationwide injunctions began to become more common.

In fact, Barack Obama’s Justice Department pushed back against the practice, arguing, “A trial court abuses its discretion by fashioning an injunction, which is overly broad.” And last year, House Republicans proposed the Injunctive Authority Clarification Act, which would have put limits on nationwide injunctions, confining the rulings for the most part to the district over which the court presides, but it was never voted on.

Back in 2016, Justice Samuel Alito noted the obvious problem with lower courts being empowered to issue nationwide injunctions, writing that it “invites the loser to seek to obtain in court what they could not achieve in the political arena.” Precisely. What we have witnessed through the first two years of Trump’s presidency attests to the reality of this problem.

Michael Morley, an assistant professor at Florida State University College of Law, points out, “All it takes is a single litigant anywhere in the nation to win one time, and then they are able to obtain effectively nationwide relief enforcing the rights of all people throughout the nation. So, you have a fundamental asymmetry where the government has to win everywhere, whereas to have a policy or a regulation or an order invalidated, a challenger only has to win once.”

One thing is certain — the more lower courts continue to issue nationwide injunctions against Trump, the more the pressure grows for legislation to be passed that prevents this abuse.

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