WASHINGTON (CN) — Senate Republicans want to put a stop to nationwide injunctions, aiming to stifle the power of courts that have placed blocks on Trump administration policies from coast to coast.
Senate Judiciary Chairman Lindsey Graham said in a hearing Tuesday morning that the Trump administration in just three years has already been slammed by nearly three times the injunctions President Barack Obama faced in eight years.
Federal judges have issued 55 preliminary injunctions and counting on the Trump administration, compared to 19 such blocks under President Obama and 12 under President George W. Bush.
Graham, a staunch Trump defender, took issue with a single district judge wielding the power to put a stop to the president’s policy making.
“It’s creating chaos in our courts, chaos in policy. It requires courts to act faster than they normally would. I don’t know how to fix it,” the South Carolina Republican said, adding: “But somebody needs to fix it because I don’t think you can run the country that way.”
But Democrat Senator Dianne Feinstein of California said that nationwide injunctions are nonpartisan and in recent years acted as safeguards against the Trump administration, citing immigration policies like the so-called Muslim travel ban and the termination of the Deferred Action for Childhood Arrivals, or DACA.
Feinstein said the courts protected more than 700,000 DACA recipients from deportation in the two-year legal battle leading up to the Supreme Court hearing the case last November, including 223,000 in her home state of California.
The high court has yet to issue a ruling on whether Trump legally terminated the Obama-era program permitting DACA recipients to reside in the U.S. without citizenship, weighing the fate of the hundreds of thousands of young undocumented immigrants known as Dreamers.
“These injunctions have protected hundreds of thousands of individuals…from irreversible harm while lawsuits challenging the policies make their way through the appeals process,” Feinstein said.
Critics of nationwide injunctions argue the judicial power leads to rushed litigation and increased politicization of the courts.
In Washington, where litigants often file cases challenging executive branch actions, Obama-appointed judges have routinely placed blocks on Trump policies that raise difficult constitutional or statutory questions. Some nationwide injunctions, like the Ninth Circuit block on the travel ban, have been later overruled by the Supreme Court.
Loren AliKhan, solicitor general for the District of Columbia, assured the Senate Judiciary Committee on Tuesday that the appellate review process protects against any potential judicial bias in the lower courts.
“Forum shopping exists in all cases and the readiness of appellate courts to review nationwide injunctions when they are issued stands as a powerful safeguard against enterprising plaintiffs and overzealous district judges,” AliKhan said.
The solicitor general defended nationwide injunctions as necessary to provide complete relief and uniform interpretation of the law.
But several law professors testifying Tuesday warned that the courts are overreaching their constitutional power by issuing nationwide injunctions.
“There is a reason why this had emerged with such dramatic force in the last five years,” said Notre Dame law professor Samuel Bray, citing increased policy making in the executive branch. “But that is not ultimately a reason to let the courts get out of their lane.”
Meanwhile, Senator Ted Cruz pinned the blame on Democrat-appointed judges, claiming one-third of the nationwide injunctions against Trump administration policies came out of California.
“I believe we have a handful of judges who are operating effectively as part of the resistance movement, trying to put themselves in the way of Trump policies they happen to disagree with,” the Texas Republican said.
But Bray said that he does not view preliminary injunctions as a partisan issue, calling them “equal opportunity offenders” that can “thwart both Democratic and Republican initiatives.”
Responding after Tuesday’s hearing to Senator Feinstein’s concern about the Trump administration deporting DACA recipients, University of Michigan Law School professor Nicholas Bagley said politics have consequences.
But Bagley, who admitted that as a Democrat his views on preliminary injunctions are controversial, warned: “If you think that that’s an intolerable outcome just imagine what the conservative courts are going to do when we have climate change legislation.”