The new administration of President Donald Trump has been a whirlwind of activity in its first one hundred days but is running into resistance from men in black – activist federal judges.
Two months in, lower federal courts have issued injunctions stopping 15 of Trump’s executive orders, already more than recent administrations received throughout their entire two terms. During Trump’s first term, 64 injunctions were issued against his executive actions. In comparison, lower federal courts issued only six injunctions against former President George W. Bush during his two terms (8 years), 12 against President Barack Obama (8 years), and 14 against former President Joe Biden (4 years), according to a study published in the Harvard Law Review.
What accounts for the aggressive stance taken by so many federal district court judges?
All recent presidents have begun their terms with a spate of executive orders, usually to fulfill campaign promises or to immediately countermand executive orders of their predecessor. Trump’s have certainly been sweeping in their reach.
But there’s more happening, and in legal circles it’s known as “forum shopping.” Lawyers challenging one of Trump’s orders have their choice of 94 federal districts across the country in which to file their suit, and both political parties have become adept at “judge shopping” their cases to judges known to be politically sympathetic.
Peter Schweizer and co-host Eric Eggers pick up the gavel on the latest episode of The Drill Down to explain what’s happening.
After being noted by legal authorities for years, the problem of forum shopping was partially addressed by the Supreme Court in a case involving the pharmaceutical maker Bristol Meyers Squibb. But the pattern for challenging presidential acts in carefully chosen federal districts has been perfected as a policy-delaying tactic.
Liberal Supreme Court justice Elena Kagan warned an audience at Northwestern University law school in 2022 about “the ability of people to forum shop, to go to a particular district court where they think that they will get a result. You look at something like that and you think, ‘That can’t be right.” Justice Kagan explained, “In the [first term] Trump years, people used to go to the Northern District of California, and in the Biden years they go to Texas.”
For constitutional lawyers, this often creates a temporary delay. House Speaker Mike Johnson (R-KY) was a lawyer who often went up against activist judges in federal courts. Describing his legal career in front of judges appointed by presidents Clinton and Obama, Johnson told Fox News, “I had a judge once who looked over his glasses at me and said, ‘I know that’s what the Constitution says, but we’re doing something different here.’”
Judge or forum “shopping” was first allowed by law back in 1988, removing a requirement that in order to file a national case in a particular district the plaintiff had to prove a particular connection to the area, as Eric Eggers explains on the show. A bill is now pending in the House that would restore that requirement, but it faces an uncertain path.
In the meantime, Schweizer argues, the problem with the ability of a single federal court to issue a national injunction stopping a presidential action is that “this makes one branch supreme.” The hosts point out that the Supreme Court hears about 100 cases per year, but there are 13 federal courts of appeal that hear a combined 50,000 cases a year.
The issue has come to a head specifically because of an injunction issued against Trump’s move to expel Venezuelan illegal immigrants who are believed to be part of the Tren de Aragua criminal gang.
“So, if a judge decides, ‘Hey, I’m going to issue this injunction,’ the amount of time it would take for the case to become one of the 100 [annual] Supreme Court cases is lengthy,” Schweizer says. “So, the [district] judge’s decision in effect becomes the law until it can potentially be appealed at the district court of appeals, or if seen by the Supreme Court. And that’s where this case with the Venezuelan gangs is now.”
The hosts also wonder whether something should be done with federal judges who are consistently overruled at the appellate level when their rulings appear to be politically motivated rather than judicially sound.
“The purpose of a judge is not simply to say this is my opinion,” he says. “They are supposed to reflect what the Constitution or what the law says,” not to deliver a policy win for their political side when they know they will be overturned eventually.
For more from Peter Schweizer, subscribe to The DrillDown podcast.
Read the full article here
