Sessions rails against ‘activist judges’ with new DOJ guidelines on judicial orders
Attorney General Jeff Sessions pushed back against “the resistance” and “activist judges” on Thursday in Kansas City, where he announced new Justice Department guidelines on nationwide injunctions, or judicial orders that have broader applications than a specific case.
Sessions spoke to reporters and Justice Department officials at the Charles Evans Whittaker U.S. Courthouse in downtown Kansas City to rail against what he called “abuses of judicial power.”
“Judges have been issuing an increasing number of orders that block the entire United States government from enforcing a law or policy,” Sessions said.
Nationwide injunctions, sometimes referred to as universal injunctions, are decisions made by one judge that affects similar cases or issues across the country.
Jean Paul Bradshaw, a former U.S. Attorney who is now a partner with Kansas City law firm Lathrop & Gage, said federal courts are made up of 94 districts, most with several district judges.
“You have, however many hundred or thousand judges, one judge makes a ruling that affects everything,” he said.
Examples of nationwide injunctions include 2017 rulings from judges in Hawaii and Maryland that halted the Trump “travel ban,” an executive order that sought to block entry into the United States from several predominantly Muslim countries.
Sessions on Thursday referenced a judicial ruling in Illinois from 2017 that temporarily blocked the issuance of federal Byrne JAG grants to local and state law enforcement jurisdictions across the country. That was after the Trump administration had imposed conditions on the grants that withheld funding from “sanctuary cities,” or cities that don’t fully cooperate with federal immigration enforcement.
It hasn’t just affected the Trump administration. A 2016 order blocked an Obama administration policy allowing transgender students in public schools to use bathrooms of their choice. Nationwide injunctions also cluttered up litigation over the Affordable Care Act, leading to a Supreme Court decision that ultimately found it was constitutional.
However, Sessions wasn’t always a critic of these types of rulings.
In 2015, when he was a Senator for Alabama, he cheered a Texas judge’s ruling that halted an Obama executive order affecting immigration amnesty.
“The court’s ruling is yet further affirmation that the president’s action — as the president himself admitted many times — is illegal,” Sessions said at the time.
The occurrences of nationwide injunctions has accelerated in recent years.
“If we were to go back in our time machine 15 years, I don’t think anybody would have ever heard of such a thing. They would pop up but it wasn’t a phenomenon,” said Lumen Mulligan, associate dean of faculty at the University of Kansas School of Law. “They start becoming aggressively used and were the darling of the Republican Party at the end of the Obama administration.”
Mulligan said nationwide injunctions became increasingly common as a legal tactic among lawyers.
“If you’re going to allow each individual judge to enjoin the entire country, what you’ve done is you’ve empowered plaintiffs in these politically charged cases to pick their judge...I’ll go to the district where I think the odds of getting the judge I want is high,” Mulligan said.
Sessions said these types of orders began in 1963 and have picked up in recent years during both Republican and Democratic administrations, including 25 such actions since Trump has been in office.
“We have a government to run,” Sessions said. “The judiciary, which we respect, is a co-equal branch, not a superior branch.”
He added that the Executive Branch has “good oversight from Congress, let me tell you.”
Sessions said the new Justice Department litigation guidelines on nationwide injunctions were meant to help in combating such rulings, a fight he said the department would take “all the way to the Supreme Court.”