• 79°

Lone federal judge controls U.S. Immigration for nine months

In October 2017, Federal District Judge Derrick Kahala Watson, appointed by then-President Barack Obama in 2013, issued a nationwide injunction against President Donald Trump’s travel ban for people from seven countries in which Islamic terrorists are active. These countries’ governments are in such disarray they are not able to provide the U.S. with sufficient records to properly identify and vet immigrants seeking to come to the U.S.

That’s right. One federal judge in Hawaii, at the lowest level of the federal court system, with a mere four years’ experience, issued a ruling that prohibited the entire Executive Branch from enforcing the travel ban.

Last Tuesday, June 26, the United States Supreme Court overturned Judge Watson’s ruling, upholding the President’s travel ban as squarely within the Chief Executive’s constitutional and statutory authority.

Justice Clarence Thomas issued a 10-page concurring opinion in which he used the first page to say he agreed with the majority’s opinion on the merits. He then spent the remaining nine pages to explain there is no constitutional or statutory authority empowering a lone federal district judge to issue universal injunctive relief against the President’s immigration policy.

Justice Thomas wrote: “Injunctions that prohibit the Executive Branch from applying a law or policy against anyone…have become increasingly common. District Courts, including the one here, have been imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”

“I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality,” Thomas continued.

Why would anyone other than attorneys or legal policy wonks care about a federal judge issuing a nationwide injunction? Attorney General Jeff Sessions answered this question in a March 2018 piece in “National Review.”

“Why does this matter to non-lawyers? This is a question of who gets to decide the policy questions facing America: Is it our elected representatives, our elected president, or unelected lifetime-appointed federal judges?”

“Nationwide injunctions,” continued General Sessions, “mean that each of the more than 600 federal district judges in the United States can freeze a law or regulation throughout the country — regardless of whether the other 599 disagree. That’s a threat to the proper functioning of the federal government….”

Almost two dozen nationwide injunctions have been issued against the Trump administration on hot-button issues like DACA and funding “sanctuary cities.”

In all these cases, the plaintiffs forum shop, i.e., pick a judicial district where they know they will get a judge with a sympathetic political bias.

For example, United States District Court Judge William Orrick of San Francisco, according to The Daily Caller and other news reports, was a political bundler who raised $230,000 for President Obama in 2008 and $100,000 for Democratic nominee John Kerry in 2004. Orrick was appointed to the Northern California District Court by Obama in 2013.

In 2017, Orrick blocked President Trump’s “sanctuary city” defunding order. His injunction applied not just to San Francisco and the Northern District of California, but nationwide.

If you think it was mere chance that Judge Orrick happened to be the federal district judge who decided this politically-charged case, you need to think again. The plaintiffs filed where they were certain a political ally on the bench would hear their case.

To quote Justice Thomas, “universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

Michael Henry writes in Oxford and can be reached at mhenryauthor@gmail.com.