No single entity has subverted the will of American voters who overwhelmingly elected Donald Trump as president like federal district court judges appointed often, but not only, by Democratic presidents.
Thus far at least 16 injunctions have been placed against Trump initiatives plus other restraining orders that have slowed his "America First" agenda. So, the administration is asking the nation’s highest court for help, and the Supreme Court last week in oral arguments in Trump vs. CASA, Inc. – a case consolidated with Trump v. Washington and Trump v. New Jersey – did not tip its hand.
Related commentary: The dangerous rise of judicial supremacy
On the surface, Trump vs. CASA is about birthright citizenship and whether Trump’s executive order ending U.S. citizenship for the children of illegal immigrants born here is constitutional. But that question may not even be addressed by the Court, some analysts say.
Within its arguments, the Trump administration contends that district court judges are in place to deal with matters within their very defined geographic locations – and that applying their injunctions to matters of national scope amounts to judicial overreach.
This is a defense strategy by U.S. Solicitor General John Sauer, Hammer explained on Washington Watch Friday.
“He was basically just counting the votes and decided that there were not five solid votes for the view” that birthright citizenship should end, Hammer told show host Jody Hice.
“So, he made a tactical decision to argue this about the scope of relief here,” Hammer continued. “This is a very legal way of saying here that what we're actually talking about is the legitimacy of the so-called 'nationwide injunctions' that the lower-court judges slapped on the Donald Trump executive order.”
When the decision comes down “I am cautiously optimistic that the justices will do the right thing, but we’ll see,” Hammer added.
Too many questions to read justices
In last Thursday’s arguments, the justices were divided on the question of authority for the lower court judges, SCOTUSBlog.com reported.
Some justices in the past have wondered aloud whether such broad powers should be bestowed upon the lower courts, but now that they have them, removing them might be a step too far.
“Although several justices in recent years have expressed skepticism about so-called nationwide injunctions, which bar the government from enforcing a law or policy anywhere in the country, during more than two hours of oral arguments, it was not clear whether a majority of the justices were ready to bar such injunctions altogether,” wrote SCOTUSBlog.com.
Some justices questioned whether the administration’s proposed alternative to lower courts’ ability to issue these injunctions – a class-action lawsuit – would improve the system. Others suggested that this case is an inappropriate forum for the discussion because Trump’s EO denying birthright citizenship is so “clearly unconstitutional,” SCOTUSBlog.com reported.
On the very question of citizenship, the Court is wrong, Hammer argued. “I have argued for many years, including just over the past few months, that this is indeed a correct interpretation of the 14th Amendment and the Citizenship Clause,” he said.
But, he continued, that’s not likely where the case is headed. “They're probably going to stick just to the actual judicial power question as to whether … these nationwide injunctions are proper; to which I personally have a very simple answer, which is no,” he said.
“They are wholly improper. They are wholly illegitimate there. The judicial power of the United States does not encompass the ability of a rogue, random, one-off lower-court judge to bring an entire federal government program to a halt.”
Hammer bases this conclusion from founding father Alexander Hamilton’s explanation of the judicial branch in his 78th essay in The Federalist Papers. In that essay, Hamilton described the judiciary as the “least dangerous” of the three branches of government, arguing that it has neither the “sword” of the executive nor the “purse” of the legislature but only the power of judgment.
Hammer also cited Abraham Lincoln’s first inaugural address of 1861 when Lincoln saw the potential for what is playing out as lower-court judges seemingly thwart the Trump administration at every opportunity.
Not what we signed up for
Lincoln challenged the idea that the Supreme Court should be the final arbiter of political and legal questions.
"If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal,” Lincoln said.
“So, this is not the system that we signed up for. This is not the reason that the patriots of 1776 rebelled against King George III in the first place,” Hammer stated.
The whole argument that district court judges should have this authority is misplaced and overthought, he said.
“The key question is what are the legitimate confines of the judicial power? This is the first line of Article III of the Constitution. For what my money is worth, my reading of the judicial power is that a court has the power to bind the parties before it, to bind the plaintiff and the defendant there.
“Frankly, you don’t need to be a legal scholar here. All you need is some good old-fashioned common sense,” Hammer emphasized.
