It is long past time for Congress to rein in power-besotted federal judges.
Another federal district judge yesterday issued another nationwide injunction on a matter of great political controversy. In this case, conservatives were the losers, but all political sides should have shuddered at the ramifications of the judge’s sweeping order.
In the case at hand, U.S. District Judge Wendy Beetlestone of Pennsylvania blocked a Trump administration rule exempting employers with religious objections from providing free abortifacients and other birth control through their health insurance policies. The injunction could force groups such as the Little Sisters of the Poor to choose between their faith and their social services to the indigent.
Set aside for now the problematic substance of Judge Beetlestone’s decision. What should unite all sides against it is that she issued her injunction not just with regard to the litigants before her or to her Pennsylvania jurisdiction, but instead nationwide. This continues an alarming trend — a SCOTUSblog explainer rightly called it a “relatively new phenomenon” — in which district court judges try to impose their own jurisprudential values to the whole country, rather than staying within their own lanes.
This trend has sparked a plethora of academic papers and journal thought pieces discussing whether such nationwide injunctions are legitimate exercises of a lower court’s authority. (A quick but far from exhaustive Internet search seems to produce more arguments against the practice, from both Left and Right, than for it.) Former Attorney General Jeff Sessions argued that these injunctions are a “threat to the proper functioning of the federal government, and Supreme Court justice Clarence Thomas has urged his colleagues to limit or end the lower courts’ uses of such injunctions.
Alas, the high court has yet to directly address the issue. It should do so, and it ought to accept Thomas’ reasoning.
Congress, however, also has the power to limit such injunctions. The U.S. Constitution’s Article III, Section 2, paragraph 2 specifically allows Congress to regulate the jurisdiction of federal courts — all of which courts other than the Supreme Court are created by Congress in the first place, without independent constitutional status.
Both parties should want to use this power against nationwide injunctions. Many Republicans right now are furious that lower-court judges appointed by former Presidents Barack Obama and Bill Clinton repeatedly have used these injunctions to block Trump administration rules. Democratic priorities and policies, though, are at equal risk. As Trump replaces more and more retiring judges with conservative appointments, those new judges could use national injunctions to overturn Obama-era decisions or laws or, in the future, to hobble whoever the next Democratic president may be.
For example, liberals briefly worried that a Texas judge who recently ruled all of Obamacare unconstitutional might apply his ruling nationwide, rather than wait for higher courts to consider appeals of his decision. The Texas judge, being a properly self-restrained conservative, did not make his order a national one, but the mere possibility should have impressed upon Democrats the dangers inherent in such judicial assertions of authority by lower-court judges.
That’s why, in the midst of unprecedented discord on Capitol Hill, this is one subject ripe for bipartisan agreement, especially if the Supreme Court keeps dodging the issue. The House and Senate Judiciary Committees ought to hold hearings on the practice, and they should craft legislation either forbidding nationwide injunctions or severely circumscribing their use.
Both sides should want to keep rogue judges in one corner of the country from trying to exert dictatorial power on a particular issue, even temporarily, over all 50 of these United States.
CORRECTION: In a previous version of this story, the Washington Examiner erroneously listed Hillary Clinton as president. The story meant to refer to her husband Bill Clinton. The Washington Examiner regrets the error.