RIGHT SPEAK: Relief For Trump In Sight — If Supreme Court Special Session Reins In Rogue Judges; Government by Injunction; Supreme Court Sets Stage for Possible Crackdown on Nationwide Injunctions

Relief for Trump in sight — if Supreme Court special session reins in rogue judges:

“What’s the difference between God and a federal judge?” goes the old joke. Answer: “God knows he’s not a federal judge.”

The district judges issuing scores of “nationwide” injunctions against President Trump appear to take this gag with deadly seriousness.

Under this dubious practice, a single federal judge claims the ability to block a law or executive order not just in his or her city or state, but throughout the country.

As Supreme Court Justice Neil Gorsuch has wryly observed, they seem to think their power is not just nationwide, but “universal” or even “cosmic.”

But the Trump administration is looking to counter these judges’ overreach, without taking the politically and constitutionally extreme steps of impeachment or defying a court order.

It’s doing so through a canny Supreme Court filing that contested the nationwide injunctions blocking Trump’s bid to end birthright citizenship.

The government’s plea in that case didn’t center on the problem of “birth tourism” — but instead presented the justices with a “modest” proposal: End nationwide injunctions because they violate the Constitution.

Last week, the court appeared to take Trump up on the offer, announcing a highly irregular May 15 oral argument session on the case — at a time when the justices are usually polishing their last opinions for the term and packing their bags for the summer break.

Nationwide injunctions have proven a disaster for the federal judiciary.

While judges have used them against presidents of both parties — conservatives won them to stop former President Joe Biden’s student loan cancellations, for example — judges have reserved a special place in their courtrooms for Trump.

By the end of March, just 10 weeks into Trump’s second term, federal judges had issued 17 such injunctions — more than George W. Bush, Barack Obama, or Joe Biden received in their entire terms in office. The anti-Trump tally will almost certainly hit 20, if not two dozen, by the end of April.

That’s given nationwide injunctions an undeniably partisan cast.

Worse yet, judges must violate the Constitution to issue them.

Article III of the Constitution limits the federal judicial power only to “cases and controversies” — that is, to the legal claims that appear directly before them in the courtroom. --->READ MORE HERE

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Government by Injunction:

We’ve all imagined what we would do if we were king for a day. Even federal judges. Remember the joke, “Question: What’s the difference between God and a federal judge? Answer: God knows that he’s not a federal judge.” Well, for some federal judges, that’s no joke; they genuinely don’t know the difference.

President Donald Trump has decided (among other things) to enforce federal immigration laws and remake the administrative state. Not everyone is happy. Numerous lawsuits—almost more than “the stars of the heaven” or “the sand which is upon the sea shore”—have been filed to slow or halt some of his policies and practices. So far, he has had some successes and some failures, but we are still in the early innings, with more to play.

Consider a current, trendy practice that some federal district court judges have applied with alacrity: issuing so-called “nationwide injunctions” outside the context of a properly certified nationwide class action. Those orders bar the President from implementing a law or policy in a certain manner not only against the plaintiff who won his or her lawsuit, but against everyone else, whether in this nation or elsewhere, even though nonparties are, by definition, strangers to the litigation that gave rise to the injunction. Some judges have even issued those injunctions at the earliest possible stage of a case: when a plaintiff asks a judge to enter a temporary restraining order (TRO) against the federal government (usually at 4:55 pm on a Friday) because his client not only is likely to prevail when the judge finally resolves the case, but also needs immediate injunctive relief to avoid the return of Vigo the Carpathian before the government can even be advised that there’s a lawsuit afoot. It’s the legal version of asking a parent for help with a term paper due that day just before leaving for the school bus.

Injunctions were a traditional form of relief in England when this nation was founded. Since then, plaintiffs have sought and obtained injunctive relief if they can persuade a judge that such immediate relief is legitimate and critical to prevent the government from irreparably harming them. What makes nationwide injunctions novel is that, nowadays, a plaintiff (read: the public interest lawyers representing the carefully chosen plaintiff) seeks far more than protection from the government for himself. No, the plaintiff wants to halt an entire government program applicable to him and thousands of others. To do so, the plaintiff importunes a federal district court judge to stop that program in its tracks nationwide. You can fund or free Willy and all of his friends if you can persuade one federal district court judge (to mix movies, not metaphors) to freeze a federal program in carbonite until a higher court sets aside that injunction or Congress revises the statute at the bottom of the dispute.

Some might say that this is just whining over nothing. As its name provides, a TRO is temporary. It may last for no more than 14 days; a district court judge can lift it at any time before that period expires; and, if the court leaves it in effect, once that two-week period expires, it becomes a preliminary injunction that an appellate court of appeals can review and set aside if need be. At its worst, therefore, a TRO can cause only a little delay in implementing a federal program. What’s the big harm?

Start with the most obvious harm: financial. The Trump Administration has delayed the issuance of some federal grants so that the new administration’s officials at the Department of Government Efficiency can decide whether a variety of grants made by the Biden Administration were fraudulent or unwise and should be clawed back, grants such as the following: “(1) $56 million to boost tourism in Tunisia and Egypt;” a “$20 million grant to create an Iraqi version of ‘Sesame Street;’” “$2.5 million to advance Diversity, Equity, and Integration (DEI) in Serbia’s workplaces;” “$2.5 million to build electric vehicle charging stations in Vietnam;” “$2 million “for promoting sex changes in Guatemala;” “$500,000 for the expansion of (inter alia) atheism in Nepal;” “$70,000 to produce a DEI musical event in Ireland;” “$47,000 for a transgender opera in Colombia;” “$68,000 for dance classes in Wuhan, China”; and “$32,000 for a transgender comic book in Peru.” Likely 90 percent of Americans (or 99 percent of those not civilly committed or registered Democrats, pick ‘em) are irate that the Biden Administration took their money by force then to shovel it out the door for such inglorious activities. Trump Administration officials are certainly entitled to ask whether $56 million is better spent on food or ammunition for our military than on tourism anywhere, even here. That inquiry is doubtless a legitimate one.

The problem, however, is this: If a district court enters a TRO ordering the federal government to hand over funds to the plaintiff organization, the government might never get that money back even if the plaintiff was not entitled to receive it. Suppose the plaintiff is a non-governmental organization whose mission is to distribute federal funds to people in foreign lands, perhaps ones like Yemen, which lacks a central government and is in the midst of a civil war, chaos, or both. Once the plaintiff obtains a TRO, it might try to “win” the case by immediately disbursing those funds before the TRO expires. If the plaintiff has not been required to post a bond so that the government can ultimately recover that money if the plaintiff loses—which Rule 65(c) of the Federal Rule of Civil Procedure requires, but district court judges do not always demand—those funds are like one of Aaron Judge’s homers: gone, forget it, goodbye. Good luck trying to claw back money paid out to anyone in Yemen. I’m sure that the Yemeni courts (assuming that there are any) would be very receptive to a claim for relief filed by lawyers representing the nation that is bombing it as I write.