BILL BARR USED THIS ONE FIGURE TO PROVE NATIONWIDE INJUNCTIONS ARE A PROBLEM

[rangerrebew]

Wednesday, May 22, 2019
BILL BARR USED THIS ONE FIGURE TO PROVE NATIONWIDE INJUNCTIONS ARE A PROBLEM

Attorney General William Barr condemned the rise of nationwide injunctions Tuesday, saying such sweeping orders undermine the rule of law.

Nationwide injunctions prohibit the federal government from enforcing a particular law or policy across the entire country. Progressive cause lawyering groups have used such injunctions to stymie a wide array of Trump policy priorities.

“Since President Trump took office, federal district courts have issued 37 nationwide injunctions against the executive branch — that’s more than one a month,” Barr said during a Tuesday evening speech to the American Law Institute.

“According to the [Justice] Department’s best estimates, courts issued only 27 nationwide injunctions­ in all of the 20th century,” he added, before bristling at the notion that the disparity is a function of the president’s “lawlessness.”

http://ninetymilesfromtyranny.blogspot.com/2019/05/bill-barr-used-this-one-figure-to-prove.html

[rustynail]

What's done can not be undone.  Because precedent.
Judges rule now.

[Maj. Bill Martin]

What's done can not be undone.  Because precedent.
Judges rule now.

Congress can -- and should -- fix this problem.  Instead, it relied on an uncodified belief that judges would exercise self-restraint.

Congress screwed up.

[Cyber Liberty]

Congress can -- and should -- fix this problem.  Instead, it relied on an uncodified belief that judges would exercise self-restraint.

Congress screwed up.

Lower courts are creations of Congress.

[RetBobbyMI]

Lower courts are creations of Congress.

As long as the House is in Dimwit hands and as long as those courts/judges stymie Trump’s policies, nothing will change. It will take a Convention of States to alter the course of the ship USA.

[Maj. Bill Martin]

Lower courts are creations of Congress.

Right -- that's exactly my point.

Pass a law stating that any injunction issued against the federal government that has effects outside the judicial district is not effectively unless/until it is affirmed by the Circuit Court of Appeals.  And that the Supreme Court shall hear any appeal of such an order on an emergency basis.  Have that law not become effective until 2021, when it may be a Democrat in office, and you might get it through the House.

[Bigun]

Right -- that's exactly my point.

Pass a law stating that any injunction issued against the federal government that has effects outside the judicial district is not effectively unless/until it is affirmed by the Circuit Court of Appeals.  And that the Supreme Court shall hear any appeal of such an order on an emergency basis.  Have that law not become effective until 2021, when it may be a Democrat in office, and you might get it through the House.

@Maj. Bill Martin

Unless Congress has specifically granted them power to issue such injunctions, and I do not believe they have,  there is no need for such a law.

[Maj. Bill Martin]

@Maj. Bill Martin

Unless Congress has specifically granted them power to issue such injunctions, and I do not believe they have,  there is no need for such a law.

To make a long story short, it has.  In fact, back in 1937, Congress passed a law saying that only a three judge panel at a district court could issue injunctions declaring an action of the federal unconstitutional.  But Congress then repealed that back in 1976, so now a single district court judge -- by express permission of Congress -- can issue those kind of injunctions.

[Cyber Liberty]

To make a long story short, it has.  In fact, back in 1937, Congress passed a law saying that only a three judge panel at a district court could issue injunctions declaring an action of the federal unconstitutional.  But Congress then repealed that back in 1976, so now a single district court judge -- by express permission of Congress -- can issue those kind of injunctions.

And there we go.  It will take an Act of Congress to fix it.

[Bigun]

To make a long story short, it has.  In fact, back in 1937, Congress passed a law saying that only a three judge panel at a district court could issue injunctions declaring an action of the federal unconstitutional.  But Congress then repealed that back in 1976, so now a single district court judge -- by express permission of Congress -- can issue those kind of injunctions.

Would you please be kind enough to point me to the place where I can see that in writing @Maj. Bill Martin?

[Maj. Bill Martin]

Would you please be kind enough to point me to the place where I can see that in writing @Maj. Bill Martin?

The statute that required a three judge panel on a district court to issue injunctions against the federal government was 28 U.S.C. Sections 2281-82.  The section that repealed that, but did keep it in for some more limited contexts, is 28 U.S.C. Section 2284.

There are also a bunch of other federal statutes that prohibit the issuance of injunctions in very specific circumstances, such as the one that prohibits district courts against issuing them in most labor disputes.  That's at 29 U.S.C. Section 101.  Obviously, if there was no power to grant injunctions at all, there wouldn't need to be specific prohibitions.

Honestly, I've never seen anyone argue that federal courts don't have the power to issues injunctions period.  That comes from Article III itself.

@Bigun

[Bigun]

The statute that required a three judge panel on a district court to issue injunctions against the federal government was 28 U.S.C. Sections 2281-82.  The section that repealed that, but did keep it in for some more limited contexts, is 28 U.S.C. Section 2284.

There are also a bunch of other federal statutes that prohibit the issuance of injunctions in very specific circumstances, such as the one that prohibits district courts against issuing them in most labor disputes.  That's at 29 U.S.C. Section 101.  Obviously, if there was no power to grant injunctions at all, there wouldn't need to be specific prohibitions.

Honestly, I've never seen anyone argue that federal courts don't have the power to issues injunctions period.  That comes from Article III itself.

@Bigun

Thank you for the citations.

Here is Article III in it's entirety:

Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
 
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Apparently my reading of what it says differs from yours.

[Maj. Bill Martin]

In what respect does it differ?

Thank you for the citations.

Here is Article III in it's entirety:

Apparently my reading of what it says differs from yours.

In what respect?  Section 1 says the judicial power of the United States extends to the Supreme Court, and whatever other inferior courts Congress creates.  Congress created the district courts and vested them with that power.  Section 2 explicitly says that power extends to all Cases, in Law and Equity.  So there's the power to issue injunctions.

It's Congress' power in Section 1 that enables it to limit the power given to inferior courts, which is why Congress has the power to limit the power of the inferior courts to issue injunctions if it wishes to do so.

[Bigun]

In what respect does it differ?
In what respect?  Section 1 says the judicial power of the United States extends to the Supreme Court, and whatever other inferior courts Congress creates.  Congress created the district courts and vested them with that power.  Section 2 explicitly says that power extends to all Cases, in Law and Equity.  So there's the power to issue injunctions.

It's Congress' power in Section 1 that enables it to limit the power given to inferior courts, which is why Congress has the power to limit the power of the inferior courts to issue injunctions if it wishes to do so.

I do not believe that the Constitution grants ANY court the power to overrule decisions of the Executive made in the performance of his duties.

[libertybele]

And there we go.  It will take an Act of Congress to fix it.

....so...what is the GOP waiting for??  (sarcasm, keeps me going these days). 

[Maj. Bill Martin]

I do not believe that the Constitution grants ANY court the power to overrule decisions of the Executive made in the performance of his duties.

That's a slightly different argument than the one Barr is making.  Barr is saying that lower courts should not be permitted to enjoin Presidential actions.  You're saying that not even the Supreme Court has the power to do that.

But okay....then exactly who decides whether the decisions the Executive makes were in the performance of his duties, or were in violation of the Constitution?  Or do you believe that the other branches of government should simply defer to the judgment of the President himself (whomever it is) when he makes such a decision, and claims that it is within the performance of his duties?

[Bigun]

That's a slightly different argument than the one Barr is making.  Barr is saying that lower courts should not be permitted to enjoin Presidential actions.  You're saying that not even the Supreme Court has the power to do that.

But okay....then exactly who decides whether the decisions the Executive makes were in the performance of his duties, or were in violation of the Constitution?  Or do you believe that the other branches of government should simply defer to the judgment of the President himself (whomever it is) when he makes such a decision, and claims that it is within the performance of his duties?

Courts render opinions. The Congress can act.

[Maj. Bill Martin]

Courts render opinions. The Congress can act.

Okay.  Well, the President himself doesn't execute his orders -- the Executive Branch as a whole does.  So if the Supreme Court renders an "opinion" - presumably just advisory since it's not an Order" -- should Executive Branch employees follow the orders of the President, or the Opinion of the Supreme Court?  I assume believe they should follow the President, but I want to make sure I understand your position.

@Bigun

[Bigun]

Okay.  Well, the President himself doesn't execute his orders -- the Executive Branch as a whole does.  So if the Supreme Court renders an "opinion" - presumably just advisory since it's not an Order" -- should Executive Branch employees follow the orders of the President, or the Opinion of the Supreme Court?  I assume believe they should follow the President, but I want to make sure I understand your position.

@Bigun

@Maj. Bill Martin

They are employees of the Executive Branch and thus required to follow the direction of the Chief Executive.

[Maj. Bill Martin]

@Maj. Bill Martin

They are employees of the Executive Branch and thus required to follow the direction of the Chief Executive.

Okay.  Just two more points of clarification:

1) You said that the Court cannot issue orders that bind the President or the Executive Branch.  What about laws passed by Congress and signed by the President.  Those also cannot be struck down by the Court?

2) And what about decisions/laws passed by states?  Can the Supreme Court strike them down as being unconstitutional or in violation of federal statutes?  Or are States similarly entitled to consider Supreme Court opinions as advisory only?

@Bigun

[Bigun]

Okay.  Just two more points of clarification:

1) You said that the Court cannot issue orders that bind the President or the Executive Branch.  What about laws passed by Congress and signed by the President.  Those also cannot be struck down by the Court?

2) And what about decisions/laws passed by states?  Can the Supreme Court strike them down as being unconstitutional or in violation of federal statutes?  Or are States similarly entitled to consider Supreme Court opinions as advisory only?

@Bigun

They can render their opinions.  That is all they were given the power to do.  They were purposefully given no powers of enforcement. If you believe they were then you need to show that to me.

[Maj. Bill Martin]

They can render their opinions.  That is all they were given the power to do.  They were purposefully given no powers of enforcement. If you believe they were then you need to show that to me.

1.  I take that to mean that your answer is the same with respect to the states and the laws passed by Congress as it is with the President.  The Supreme Court's opinions are only advisory, and nobody is under any legal or other obligation to carry them out or to obey them.  Is that correct?


2. When you state that courts were "purposefully given no powers of enforcement", that is technically true.  But also irrelevant because under our system of laws, it is the Executive Branch that is charged with enforcing court orders.  The power of courts to issue orders -- and the obligation of the executive to enforce them -- goes back hundreds of years in the common law in England, and in the colonies as well.  It's not stated expressly in the Constitution because everyone remotely familiar with our system of laws took it as given.  Under that system, the courts are empowered to issue orders that the executive branch is then required to execute.

But you're saying that is not correct -- that the courts don't even have the authority to issue orders that the executive branch must enforce, and that every "order" they issue is actually just a non-binding opinion.  I'd point out that just as the Constitution doesn't contain an express grant of enforcement power to the courts (or obligate the executive to respect those opinions) on constitutional issues, it also contains no express grant of enforcement power on civil or criminal issues either.  Meaning that every criminal conviction is simply an "opinion" that nobody is required to respect, and every civil case is just an "opinion" that nobody is required to respect, and for which no damages must every be paid.

3. So why would the Framers be stupid enough to put Article III in the Constitution at all, when all it can do is issue non-biding opinions that neither the other two branches, or the states, must respect or obey?  Under your interpretation of Article III, there is absolutely no reason for it to exist at all.

@Bigun

[Bigun]

1.  I take that to mean that your answer is the same with respect to the states and the laws passed by Congress as it is with the President.  The Supreme Court's opinions are only advisory, and nobody is under any legal or other obligation to carry them out or to obey them.  Is that correct?


2. When you state that courts were "purposefully given no powers of enforcement", that is technically true.  But also irrelevant because under our system of laws, it is the Executive Branch that is charged with enforcing court orders.  The power of courts to issue orders -- and the obligation of the executive to enforce them -- goes back hundreds of years in the common law in England, and in the colonies as well.  It's not stated expressly in the Constitution because everyone remotely familiar with our system of laws took it as given.  Under that system, the courts are empowered to issue orders that the executive branch is then required to execute.

But you're saying that is not correct -- that the courts don't even have the authority to issue orders that the executive branch must enforce, and that every "order" they issue is actually just a non-binding opinion.  I'd point out that just as the Constitution doesn't contain an express grant of enforcement power to the courts (or obligate the executive to respect those opinions) on constitutional issues, it also contains no express grant of enforcement power on civil or criminal issues either.  Meaning that every criminal conviction is simply an "opinion" that nobody is required to respect, and every civil case is just an "opinion" that nobody is required to respect, and for which no damages must every be paid.

3. So why would the Framers be stupid enough to put Article III in the Constitution at all, when all it can do is issue non-biding opinions that neither the other two branches, or the states, must respect or obey?  Under your interpretation of Article III, there is absolutely no reason for it to exist at all.

@Bigun

@Maj. Bill Martin

Over the years our courts have conferred upon themselves many powers not otherwise granted them and it's long past time for them to be reined in.

Criminal matters generally include people know as juries who render verdicts.

[Maj. Bill Martin]

@Maj. Bill Martin

Over the years our courts have conferred upon themselves many powers not otherwise granted them and it's long past time for them to be reined  in.

I agree.  But that's an incredibly vague answer to three rather specific points.  I mean, arguing that court orders don't actually bind anyone, and that the executive branch has no obligation to enforce any of them, is going quite a bit further than just reining them in a bit.  It's basically eliminating their function altogether.

I think that's an important point given that the entire federal government really needs to be reigned in -- including Congress and the Executive Branch.  All those agencies that write all those regulations that bind all our lives are part of the out of control executive branch.  And the same with Congress.  If not for the Supreme Court's decision in Heller, the Obama Administration likely would have implemented draconian gun control, and put severe restriction on political speech that would have suppressed dissent.

The federal court system is imperfect and needs to be corrected.  But eliminating its power altogether is even worse.