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Judges turn to extreme remedy to block Trump administration

Judges turn to extreme remedy to block Trump administration

As the Trump administration seeks to obliterate Obama-era policies, progressive lawyers are racing to court asking for an extreme form of relief, urging judges to reach deep into their judicial tool kits and issue national — even global — injunctions.

Such injunctions are a relatively new phenomenon, and some legal scholars worry they are bad for the country and bad for courts.

The experts say the extreme remedy squelches the benefit of having multiple judges consider a question and gives lawyers an incentive to “judge shop” their cases to judges they believe will rule in their favor.

Court battles are raging across the country less than a year into the Trump administration. Already, federal judges have issued injunctions on various versions of President Donald Trump’s travel ban and his policy toward so-called sanctuary cities.

Finding success, liberal lawyers are also challenging — and sometimes asking for similar relief — in the areas of LGBT rights, Obama-era policies aimed at young undocumented immigrants brought to the US as children and the contraceptive mandate.

And that’s just the beginning.

Less than an hour after the administration announced a termination of cost-sharing reduction payments related to the Affordable Care Act late Thursday, attorneys general in New York and California warned they would go to court.

History of nationwide injunctions

“There weren’t any national injunctions for most of US history,” said Samuel Bray, a law professor at UCLA School of Law. Bray said they started in the late 20th century but were rare until the last part of President Barack Obama’s second term, when Republican attorneys general started getting national injunctions to stop the Obama administration. Now, the tables are turned.

“Democratic attorneys general are getting national injunctions to stop the Trump administration. In just two short years, the national injunction went from rare to routine,” he said.

 When weighing an injunction, a judge takes into consideration several factors, including whether there would be irreparable harm to the plaintiffs. But in a recent note for the NYU School of Law, Getzel Berger worried that while the injunctions are lawful, “they are often granted (or denied) without applying a coherent or unified principle.”

He argued that while they may be a potent tool to deliver quick relief, they can encourage lawyers to “forum shop,” or find a judge who will likely rule in their favor and issue overly broad relief.

Judge shopping

Supporters of the Obama administration say that is exactly what occurred when one district court judge blocked Obama’s executive actions on immigration in 2015. US District Judge Andrew Hanen froze the programs nationwide — a decision that was later upheld by a federal appeals court.

When the issue finally reached the Supreme Court, the justices were serving with only eight members before the nomination of Justice Neil Gorsuch. They split 4-4 in the case and were left simply affirming the lower court opinion, making the order of one district court judge catastrophic on a signature Obama-era policy.

Some judges worry about using the extreme tool.

“Essentially, what this means is one judge in one circuit gets to control the law until the Supreme Court intervenes,” Judge Alex Kozinski, who sits on the 9th Circuit Court of Appeals, said last summer. Kozinski was not referring to a specific case but speaking broadly about such injunctions.

“This is contrary to two centuries of federal policy, which is the idea that you have dueling views in the lower courts before a matter percolates to the Supreme Court and the Supreme Court can choose among different views,” he told an audience at the University of California, Irvine School of Law.

It’s a similar point Berger made in his paper. “Nationwide injunctions freeze novel and difficult legal questions in conformance with the holding of a single lower court, hindering dialogue among the circuits and stunting the development of the law.”

They also prompt parties to seek out a judge or judges who might rule in their favor. That’s why during the Obama administration, the conservative-leaning 5th Circuit Court of Appeals was where critics of the President would aim their litigation.

Once they found success, they returned there again and again.



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