Sunday, July 1, 2018

Unless we heed Clarence Thomas’ warning, SCOTUS ‘travel ban’ victory is hollow

Our political system regards the Supreme Court as superior to the other two branches of government. Why then doesn’t the high court wield its supremacy over its own branch and rein in the lawlessness of the lower courts? Shouldn’t it uproot a growing power grab by the lower courts that are issuing nationwide injunctions over broad policies? Justice Thomas seems to think so.
In Thomas’ concurrence in the “travel ban” case, he spends just one paragraph dealing with the merits of the case. In the rest of his concurrence, he addresses the fact that in this case and in many other similar cases, lower courts have been abusing their power and applying their rulings beyond the subjects of the litigation. As long as the tens of thousands of immigration lawyers can continue to challenge any long-standing immigration policy before a carefully shopped district judge and immediately secure a nationwide injunction on that policy, the categorical ruling of the majority will have a limited effect.
Whether one agrees or disagrees with Trump’s immigration policies, it is still absurd and dangerous that a district judge was able to shut down a president’s policy and even force him to alter it dramatically, especially now that we know the Supreme Court agreed with the president all along. Now district judges are mandating that illegal DACA amnesty be administered nationwide. Are we going to allow national security, the military, and foreign policy to be run by a single forum-shopped district judge and hope that somehow the Supreme Court will step in within a few years, after all the harm is already done?
Thomas observed that sweeping universal injunctions applied beyond just the plaintiffs in the cases are becoming increasingly common. “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.”
Read the rest from Daniel Horowitz HERE.

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