January 22, 2019
It's hard enough to be the president under normal circumstances. But try doing it while others are constantly trying to usurp your constitutional authority. That's the position Donald Trump's been in for two whole years. Every time he acts, the courts react -- at best, putting his policies on hold. At worst, refusing to consider them. Today, finally, one set of justices got it right -- but the White House had to go all the way to the top to find them.
It took five members of the Supreme Court -- including this administration's two nominees -- to put an end to the activist nonsense on at least one issue: the president's transgender military restriction. Although the justices didn't rule on the policy, they did agree that other courts were out of line to block it from taking effect until the policy was adjudicated in the courts. For months, radical judges had been tying the Pentagon's hands from moving forward with the plan. By a 5-4 vote, Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh reversed the lower courts' orders and gave the military the green light to proceed.
The White House had asked SCOTUS to go ahead and decide the issue. But, as so many legal experts have pointed out, it's extraordinarily rare for the justices to bypass the lower courts. Solicitor General Noel Francisco argued this was an issue of national security and it was "necessary to place the Department of Defense in the strongest position to protect the American people." For now, five justices are at least showing some deference to the commander-in-chief, a courtesy other courts refuse to give him.
Of course, the idea of presidential authority never used to be a radical concept. After eight years of watching Barack Obama exercise his power -- and hijack everyone else's -- Donald Trump decided to paint inside the constitutional lines. That's why this new wave of judicial activism is so outrageous. "We have seen some federal judges at the trial level act like they are nothing short of the resistance of Donald Trump," Breitbart's Ken Klukowski fumed. Instead of just siding against the administration -- which is bad enough when it violates the plain text of the law -- more courts are using their injunction power like a political weapon. With it, even a single, unelected, lower-court judge can stop the administration's agenda in its tracks.
"For plaintiffs who hire the best lawyers," Ken explains, "they know not only what districts to file in, but also to make sure those districts are also under the jurisdiction of the U.S. court of appeals that's also left-leaning." That means a single ruling from a single lawsuit could be a two-year dagger in the heart of any of President Trump's policies. "In just his first year, district judges issued nationwide injunctions on his travel ban, refugee policy, phaseout of the Obama-era DACA amnesty, efforts to speed up deportations of Iraqis, stripping of federal grants from sanctuary cities, attempts to change Obamacare's contraceptive coverage and moves to reinstate a ban on transgender troops," the Washington Times points out.
The difference between a narrow ruling and a national injunction can be massive, law professor Howard Wasserman warns. "Instead of allowing many judges to reach independent judgments, they resolve the question for all courts," argues the Atlantic. "The government has little choice but to appeal, sometimes all the way up to the Supreme Court... That's no way to govern a country. Injunctions should provide relief to the parties who sue, not to people who don't sue..."
But for Trump's opponents, who've never been able to succeed on their extremism legislatively, this is Judicial Activism 2.0. David French calls it "Trumplaw:" the process of crafting a new standard of court review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump.
Step One: The Obama administration uses its executive power to implement a progressive policy (such as DACA or the contraceptive mandate).
Step Two: The Trump administration uses its executive power to repeal the Obama-administration action and implement a more conservative policy.
Step Three: Progressive plaintiffs file suit in a friendly jurisdiction using dubious legal theories to seek a broad injunction against the Trump-administration action.
Step Four: Progressive judges join the #Resistance, write obviously flawed opinions, and seek to freeze Obama's policies in legal amber.
It's refreshing to see at least five members of the Supreme Court try to rein in the lower court judges who are bent on telling the commander-in-chief how to run the military. The people charged with keeping our nation safe can't do their job when rogue judges keep injecting their personal agendas into every social issue that reaches their courts. It's the president's job to decide military policy -- and it's time for the nation's judges to let him
Tony Perkins' Washington Update is written with the aid of FRC senior writers.