Overuse of the judicial process

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Should the majority rule in the halls of Congress, or are institutional safeguards needed so the minority can wield some influence? This question was basically answered by this nation's founders when they established a republic instead of a pure democracy. The plan was to maintain a balance between the interests of the majority and the minority, thereby achieving long-term stability. Preventing "the tyranny of the majority," Ed Feulner, townhall.com, 3/10/18.

As the saying goes, a democracy is two wolves and a sheep voting on what's for dinner. *** What the wolves want matters, but so does what the sheep wants.

FIRST, the powers of the majority in Congress are limited in several respects. Most obviously, the Constitution requires a 2/3 supermajority vote for certain matters (proposal of constitutional amendments - override of presidential vetoes - Senate ratification of treaties - Senate convictions in impeachment proceedings).

Additional safeguards reside in the procedural rules that the two houses of Congress have established to govern their respective proceedings (and may revise if and when changes are deemed desirable). What leadership positions will be created and how will they be filled - what committees will be established and how will members be selected - what legislative proposals will be considered - who will be recognized to speak and for how long - etc.

In general, the procedural rules may be presumed to be working satisfactorily. There is one issue that is clearly needed, however, and could make a big difference.

Departing from the constitutional norm of majority voting, the Senate filibuster rule effectively creates a 3/5 supermajority requirement for
all legislative votes. SAFE believes that such a requirement does more harm than good, notably by facilitating budget blackmail (take out those spending cuts or we won't vote to bring the bill to the floor) in the appropriation process. Time to bin the filibuster, 4/24/17.

SECOND, Congress's power to legislate is constrained by the protections provided for states/citizens by (i) Article I, Section 9 (no bills of attainder, ex post facto laws, etc.) and (ii) the Bill of Rights & subsequent amendments.

When disagreements arise re laws passed by Congress or policies of administrative agencies (which often supplement or even take the place of legislation), states and/or citizens can challenge the law or policy in the courts. So widespread has this practice become that it is debatable whether any law or policy can be considered effective if it hasn't survived a legal challenge or two.

Books could be written about the uses and abuses of litigation; this week's entry will settle for a 20,000-foot overview. We'll start with a recap of the DACA and DAPA litigation, identify other examples, and suggest possible reforms.

A. DACA/DAPA - In June 2012, the Obama administration announced an administrative policy of normalizing the legal status of immigrants who had brought to this country as children (aka Dreamers). This Deferred Action for Childhood Arrivals (DACA) program was justified on a prosecutorial discretion theory, even though such discretion is generally exercised on a case-by-case basis versus for large groups of people.

Provided they registered (nearly 800,000 have reportedly done so to date) and hadn't committed other serious crimes, the Dreamers were to receive temporary deferrals from deportation and be enabled to obtain renewable two-year work permits and Social Security numbers. Two years and counting: Assessing the growing power of DACA, immigrationpolicy.org,
June 2014.

Two years later, a similar program called Deferred Action for Parents of Americans (DAPA) was announced for a larger pool (some 5 million) of illegal immigrants, primarily adults with children. DAPA was subject to the same constitutional doubts as DACA - Congress is responsible for making laws; the executive branch is only supposed to execute them - and being an order of magnitude larger DAPA attracted widespread opposition. Postelection update: Illegal immigration,
11/17/14.

And don't take our word for this, because some high-profile observers have said much the same thing - including columnist Charles Krauthammer, liberal law professor Jonathan Turley, and the Washington Post. Watch out for a power grab on immigration, 8/25/14.

Litigation ensued, and implementation of DAPA was successfully prevented - but not in a way that resolved the legal issues. Action brought by 26 states - injunction granted by a federal district court in Texas and upheld by the 5th Circuit - appeal to the Supreme Court ended in a 4-4 tie, which reflected the vacancy created by the death of Justice Antonin Scalia and delay in appointing a successor. Supreme Court tie blocks Obama immigration plan, Adam Liptak & Michael Shear, New York Times,
6/23/16.

Fast forward to September 5, 2017, when the current president announced that the DACA program would be ended on grounds that it should never have been started by the executive branch and he couldn't justify continuing it (see below). A six-month grace period was provided so Congress would have time to pass legislation addressing the situation. Statement from the president, whitehouse.gov,
9/5/17.

Officials from 10 States are suing over the program, requiring my Administration to make a decision regarding its legality. The Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court. There can be no path to principled immigration reform if the executive branch is able to rewrite or nullify federal laws at will.

The state coalition had previously sent a letter to the president urging him to end the DACA program by September 5th, and this is what he did. One might infer that the coalition and the president were acting more like allies than adversaries, but in any case the DACA complaint was still pending in the Texas court and could have been readily amended to cover the DAPA program as well. Texas leads 10 states in urging Trump to end Obama-era immigration program, Julian Aguilar, texastribune.org,
6/29/17.

The administration's decision on DACA was generally supported by Republicans but lambasted by Democrats. Trump administration ends DACA with 6-month delay, foxnews.com,
9/5/17.

Democratic National Committee Chairman Tom Perez: "Donald Trump has secured his legacy as a champion for cruelty."

House Minority Leader Nancy Pelosi: "President Trump's decision to end DACA is a deeply shameful act of political cowardice and a despicable assault on innocent young people in communities across America."


A 58-page complaint was filed the next day in the federal district court for the eastern district of New York by 14 primarily blue states (CT, DE, HI, IA, IL, MA, NC, NY, OR, PA, RI, VA, VT, WA) plus the District of Columbia. The complaint alleged, among other things, that the proposed action was motivated by racial animus. Declaratory and injunctive relief were requested to prevent the president et al. from terminating the DACA program on March 5, 2018. AGs against DACA [termination], Daniel John Sobieski, americanthinker.com,
9/8/17 (download PDF of complaint).

Similar lawsuits were filed by other groups in various jurisdictions, and the first ruling was handed down in an action brought in California by Janet Napolitano [who had served as the director of Homeland Security while the DACA program was being established by the Obama administration] et al. In this judge's opinion, the DACA program was fine - never mind that Congress had never approved its creation, nor that the similar DAPA program had previously been held illegal - and the defendants were ordered to continue allowing persons who had registered in the DACA program to obtain extensions of their work permits pending further proceedings. Judge rules DACA legal, blocks Trump's decision to end program, Stephen Dinan, Washington Times,
1/9/18.

Judge William Alsup said the DACA case was different enough that he didn't feel bound by the logic of the 5th Circuit in the DAPA case, "and he blasted the Trump administration for caving to legal threats from Texas and other states opposed to DACA based on that circuit's ruling."

About a month later, a similar injunction was handed down in the state AG's suit in New York. The logic was similar to that for the first order, albeit expressed in more measured terms. Second US judge blocks Trump administration from ending DACA program, Dan Levine, reuters.com,
2/13/18.

[Judge Nicholas] Garaufis said the administration could eventually rescind the DACA program but that the reasons it gave last September for rescinding it were too arbitrary and could not stand. The judge ordered the administration to process DACA renewal applications on the same terms as had been in place before the president took his action.

Meanwhile, the administration had sought to by-pass the ultra-liberal 9th Circuit and petition the Supreme Court to lift the California judge's injunction. The high court rejected this request in favor of the normal district court - circuit court - S.Ct. sequence. Supreme Court rejects Justice Department attempt to fast-track DACA decision, Melissa Quinn, Washington Examiner,
2/26/18.

Finally, on the same date as the deadline previously set for congressional action on DACA, a federal judge in Maryland ruled that the administration had acted properly in terminating the DACA program with a six-month grace period. Judge rules Trump's DACA phaseout legal, Stephen Dinan, Washington Times,
3/5/18.

Judge Roger W. Titus, a Bush appointee to the bench in Maryland, said the judges in California and New York who blocked the phaseout attempted to substitute their own judgments for that of the Homeland Security Department, crossing constitutional lines in order to strike at Mr. Trump's policies.

What now? There may be a political deal, which will pave the way for legislation that provides for a DACA replacement program. Or the litigation concerning the termination of DACA will continue, eventually resulting in a definitive legal ruling.

#LEGISLATIVE SOLUTION - The president has outlined a DACA fix plan: path to citizenship for about 1.8 million illegal immigrants (those eligible for DACA, including many who haven't registered) - $25 billion in assured funding for a southern border "wall" and other security measures - end visa lottery programs - dial back chain migration (granting entry based on extended family relationships). He characterized these terms as "a detailed proposal that should be supported by both parties as a fair compromise - one where nobody gets everything they want, but where our country gets the critical reforms it needs." Assessing the SOTU address,
2/5/18.

An ensuing debate in the Senate failed to produce 60 votes for a bill based on the president's plan (it received only 39 votes), or for any other bill that was offered. Critics claim that the president has shown that he doesn't care about the Dreamers and isn't willing to consider a reasonable deal. [Senator Tom] Carper's connections,
3/6/18.

Weeks of bipartisan negotiations resulted in a compromise bill that would protect Dreamers, while also increasing funding for border security by $25 billion [but dropping the proposals re the visa lottery program and chain migration.] Despite the president's rhetoric about wanting to work together to help the Dreamers and improve border security, he worked openly to derail negotiations and convince Senate Republicans to vote against the bill. Instead of following the 3 C's - communication, collaboration and compromise, the president chose to play political games with the lives of these young men and women and keep this crisis going through his [arbitrary] deadline.

Without presuming to know the "best" policy answer, SAFE has some suggestions for the procedural path forward. For now, the Senate should stack arms and allow the House to complete its deliberations. If the House passes a bill, then the Senate should take it up (no filibusters) and either pass the bill (perhaps with amendments, which would necessitate a conference committee) or reject it. Let's make the budget process work, Section III,
2/19/18.

Judicial rulings that the DACA program must be continued for an indefinite period after March 5th have relieved the pressure to reach a legislative deal. Perhaps there will be a short-term extension of DACA for cosmetic purposes in the omnibus appropriation bill that is due by March 23, but Congress doesn't seem likely to come up with a definitive DACA fix before the mid-term elections

#JUDICIAL DECISION - Sooner or later, the several circuit courts (2nd for NY, 4th for MD, 9th for CA) that are involved in the DACA termination lawsuits will rule on the district court orders, after which the Supreme Court will consider and decide (probably by a 5-4 margin) the case by, say, June 2019.

Our guess is that the administration's actions will be upheld if the question isn't mooted by the enactment of legislation in the meantime. We didn't believe the DACA program was constitutional when it was created in 2012, and it would offend reason to conclude that a president cannot change policies that were initiated by his predecessor.

The question of what sort of DACA fix should be enacted would remain on the table, with no progress having been achieved during the nearly two years taken up by litigation of the legal challenge to the president's administrative action. Sorry, but that's not how a government should operate.

B. Broader context - When a group of red state AGs filed suit against the DAPA program in 2014, the case was filed in a district court in Texas with only two judges (one a Clinton appointee, the other appointed by Bush43). The Bush43 appointee was assigned to handle the case, and the plaintiffs prevailed on him to order a nationwide injunction. The more common practice had been to issue judicial orders binding only the parties to the litigation. The result was affirmed by the 5th Circuit, as has already been related, and a short-handed Supreme Court divided equally on the issue.

Since the current president took office, blue state AGs have made aggressive use of similar tactics. One administrative action after another has been blocked, even though the administration may prevail in the end. Judges unleash "political weapon" against Trump, Alex Swoyer, Washington Times,
2/27/18.

. . . district judges issued nationwide injunctions on [Trump's] travel ban, refugee policy, phaseout of the Obama-era DACA amnesty [as already related], efforts to speed up deportations of Iraqis, stripping of federal grants from sanctuary cities, attempts to change Obamacare's contraceptive coverage and moves to reinstate a ban on transgender troops.

Filing politically motivated lawsuits may prove irresistibly attractive for those in the minority, as an alternative to agreeing to a legislative solution on the best terms that can be negotiated. But there will be times when the same tactics are used by the other side, and there are inherent drawbacks in this type of drill that won't serve the interests of either side.

Litigation is expensive, it often takes years to resolve, and the outcomes aren't necessarily more predictable (judges reach divergent results on the same issue, just like legislators do) or wiser than those that would result through the legislative process. See, e.g., GovCare weathers another legal challenge,
6/29/15.

Members of Congress can be voted out of office if the voters don't approve of what they are doing, but there is no similar way to hold federal judges accountable if they succumb to temptation and assume the role of super-legislators. [Attorney General Jeff] Sessions blasts judges for nationwide injunctions against Trump administrative policies, Jeff Mordock, Washington Times, 3/10/18.

"In truth, this is a question of raw power-of who gets to decide the policy questions facing America: our elected representatives, our elected president or unelected lifetime-appointed federal judges," Mr. Sessions told a gathering of the Federalist Society. "Today, in effect, single district court judges are going beyond proper adjudicative bounds and making themselves super-legislators for the entire United States."

Widespread use of litigation as a delaying tactic undermines willingness of the minority to accept legislative compromises, thereby contributing to a pattern of (a) legislators ducking controversial issues year after year (aka "kicking the can down the road") and (b) administrators choosing to fill the vacuum by taking decisions that exceed their proper authority. Congress must rein in administrative agencies,
1/19/15.

Unsurprisingly, the tendency to politicize the judicial process has spawned bitter battles over the filling of judicial vacancies. Diversity criteria - litmus test issues - political affiliations - etc. If the Republican-controlled Senate had not refused to take up the nomination of Judge Merrick Garland to fill the Supreme Court vacancy in 2016, for example, the outcome of the DAPA case might well have been reversed.

C. Possible reforms - If it's true that politically motivated lawsuits are getting out of control, what should be done about it and who is responsible for taking action?

Congress could seek to address this problem by adjusting the jurisdiction of lower level federal courts (aka jurisdiction stripping). Under the Constitution (Article I, Section 8), Congress is empowered to "constitute Tribunals inferior to the Supreme court" - which presumably includes defining the mission of the lower federal courts it creates. Congress can END the tyranny of the courts TOMORROW, Daniel Horowitz, conservativereview.com, 3/1/18.

Thus, says Mr. Horowitz, "Congress could simply clarify, in the Rules Enabling Act governing the administrative procedures of the courts, that the courts lack any power to issue nationwide injunctions beyond the individual plaintiff."

How this would play out in a suit brought by a bevy of state AGs claiming to represent a laundry list of affected interests in their respective states is somewhat unclear, however, and other approaches might well work better. If cases brought against the federal government seeking declaratory or injunctive relief against a law or administrative policy could only be considered in the DC Circuit, for example, that would at least eliminate forum shopping (i.e., liberal suits brought in the 9th Circuit and conservative suits in the 5th Circuit).

Or perhaps the
Supreme Court could do the necessary, say by rebuking lower court judges that exceed their proper bounds and/or promulgating judicial limits on nationwide injunctions. Sessions blasts judges for nationwide injunctions against Trump administrative policies, op. cit.

"We hope the Supreme Court will resolve this issue," Mr. Sessions said. "There can be no question that courts should put an end to nationwide injunctions and keep activists on both sides of the aisle from paralyzing federal government."

The
general public could help as well by becoming more skeptical of the motives and methods of the state AGs and others who are resorting to legal warfare in furtherance of their political ideas. A telling sign is when the attack shifts from the substance of and legal grounds for a given policy to its supposed motivation. Ibid.

As the judges order nationwide injunctions, they are ruling based on their personal opinions and not federal law, Mr. Sessions said. [Thus in] September, U.S. District Judge Nicholas Garaufis of the Eastern District of New York called the Trump administration "heartless" for refusing to extend the October deadline for DACA recipients to renew their status. "Not illegal," Mr. Sessions said. "Not unlawful. Heartless."

And longer term, the nation's
law schools might consider placing a higher premium on the virtues of judicial restraint in teaching the lawyers of tomorrow.

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#For some of us, much less optimistic, another potential explanation is to be found in Saul Alinsky's guidance. - SAFE member (DE)

Comment: As the saying goes, it's never easy to "put the genie back in the bottle."

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