This article was written by the distinguished retired judge, John H. Wilson
It is no secret that the Ninth Circuit is the place to go if you want to block any measure taken by the Trump Administration. The President himself admitted as much in February when he declared his intention to declare a National Emergency at the Southern Border; “we will have a national emergency, and we will then be sued, and they will sue us in the Ninth Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling and then we will get another bad ruling, and then we will end up in the Supreme Court, and hopefully we will get a fair shake and win in the Supreme Court.”
In San Francisco (which is within the Ninth Circuit), Federal District Judge Richard Seeborg has already blocked two of the President’s initiatives. In March, he issued an injunction blocking the Administration from adding a question on citizenship to the 2020 census form; then, less than a month later, Judge Seeborg ruled that asylum seekers could not be returned to Mexico while their claims for asylum are under consideration. Both of these decisions are currently being appealed by the Department of Justice.
At the outset, there is a question at issue here that is little understood by the majority of people – how can a federal judge, sitting in a lower court in San Francisco, issue a ruling that is binding on the entire federal government, across the entire nation?
Any litigant who brings a case before a Court may ask that Court to issue an injunction – that is, an order that the defendant stop doing something, or do not act at all, because those actions of the defendant would be harmful to the Plaintiff. When the party bringing the claim asks a Court to halt the actions of the defendant right at the beginning of the case, the relief requested is called a “Preliminary Injunction.” In state court, the average preliminary injunction is granted to prevent the sale of a house, or some other piece of property, the theory being, once the property is sold, the plaintiff won’t be able to get it back and will be irreparably harmed.
After hearing more evidence, a Court can issue a “Permanent Injunction,” or a Court can lift the injunction all together, depending upon the proof offered to the Court regarding the harm a plaintiff would suffer by the proposed action of the defendant.
The federal court’s power to issue such an injunction, also known as a Temporary Restraining Order, is found in Federal Rule of Civil Procedure 65, which states that the Court may issue such an order, without prior notice to the defendant, when “specific facts…clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.”
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Rulings supporting this authority can be traced back as far as 1932, when in the case of Leman v. Krentler-Arnold Hinge Last Co., the US Supreme Court upheld the ruling of a District Court which had enjoined a manufacturer from violating a patent held by one of their competitors – “once the district court properly established jurisdiction over the defendant, it could issue a binding decree ‘not simply within the District of Massachusetts, but throughout the United States.’”
Thus, there is no geographical limit to a Court’s exercise of its power to issue an injunction. But the question that now arises is whether or not the District Courts have been abusing this power in recent years.
Vice President Mike Pence has made clear that he certainly thinks so. In a recent statement, he “called on the Supreme Court to step in and order lower courts to limit their rulings to the parties in front of them.” “In the days ahead,” VP Pence stated, “our administration will seek opportunities to put this question before the Supreme Court — to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land.”
Unfortunately for the Trump Administration, the US Supreme Court is unlikely to curb the power of District Courts to issue nationwide injunctions. Too many defendants appear in Federal Court with national, and even international contacts. Suppose Wal-Mart, or Target, or Microsoft appear as a defendant in Federal Court in Wisconsin, where a plaintiff is alleging an unfair trade practice. The District Court finds as a preliminary matter, that there is enough evidence to support the allegations made by the plaintiff, and that an injunction is in order. Who would want that injunction to only apply in the state of Wisconsin?
Rather than curtail the power of the District Court, the real issue involves the appointment of Federal Judges who honor and respect the rule of law. Here the Trump Administration has been very successful – in fact, with the confirmation of Rodolfo Ruiz to the U.S. District Court for the Southern District of Florida, as of May, 2019, President Trump has had 100 of his judicial nominees confirmed. e This success is a source of panic for the left, who are used to appealing to progressive, activist judges like those who sit on the Ninth Circuit. Instead, Trump has appointed Judicial Conservatives who leftist can now accuse of “oppos(ing) reproductive rights, gay rights, affirmative action, unions, government regulation, any form of gun control, and immigration.”
In the end, rather than reduce the power of Federal Judges to redress wrongs, the Trump Administration needs to continue to put the right people on the federal bench – ones who will not foster a political agenda of any kind.
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