Vice President Mike Pence announced on Wednesday in Washington at a Federalist Society conference, that the Trump Administration is seeking an appropriate case in which to ask the Supreme Court to end nationwide injunctions — usually imposed by “activist judges” similar to those found on the 9th Circuit Court of Appeals, in which the Supreme Court has overturned more than 85% of those decisions.
Such orders have continually obstructed the President’s national agenda, interfering with his sworn oath of office as the “only” Chief Executive to make and institute policy.
For example, “activist judges” within the lower courts have hampered administration policy priorities on immigration, national security and health care.
“The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them, and it’s imperative that we restore the historical tradition that district judges do not set policy for the whole nation,” Pence told the conservative lawyers group.
Adding, “In the days ahead, our administration will seek opportunities to put this question before the Supreme Court, to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land.”
Attorney General William Barr is also involved in the effort to find a suitable case in which to ask the Supreme Court to end nationwide injunctions. He believes these encourage lawyers to “shop around” for ideologically friendly judges, manufacture disputes within those friendly jurisdictions, and turn ordinary cases into “high noon emergences” empowering a single judge, and an unelected official, to set policy for the entire nation — which in effect undermines the entire legal process, moreover conflating those mandated (by law) in setting policy, and calling into question the separation of powers.
The idea behind “percolation,” is that the lower courts should struggle with their interpretation of the same law before the Supreme Court intervenes.
However, a legal dispute involving the potential of a nationwide injunction would not reach the high court on its own. Rather, the issue would come attached to the specific ongoing dispute, which needs first to be adjudicated.
For example, the President’s decision to strip sanctuary cities of federal funds, which immediately had progressive lawyers seeking “activist judges” seeking a nationwide injunction in stopping the Trump Administration dead-in-their-tracks. If the high court decided to take the case, they would first adjudicate the main dispute, before turning their attention to the nationwide injunction issue.
Both progressives and conservative lawyers use the legal loophole of nationwide injunctions thus circumventing a chief executives policy agenda, usually in the short term. Another example, however this one on the flip side of the ideological scale is when Republican State Attorney’s frustrated the Obama Administration’s transgender bathroom policy, thus blocking the former President’s agenda.
However the President isn’t only hoping that the Supreme Court will rule in his favor, he’s also installing a record number of federal judges to the bench, hoping to flip two appellate courts to majority Republican control by the end of 2019.