Justice Kagan Enters the Debate on the National Injunction

Justice Kagan was interviewed today at Northwestern Law School, and she addressed the national injunction. Here's the account by Josh Gerstein of Politico, which leaves no doubt about where she stands:

During her remarks on Wednesday in a conversation with Northwestern Law Dean Hari Osofsky, Kagan took a notably hostile and forceful stand against a practice that hasn't generated much public debate but has roiled the legal community in recent years: individual U.S. District Court judges blocking federal government policies nationwide.

Executive branch officials from the Biden, Trump and Obama administrations have all complained about their major policy initiatives often being hamstrung by a single judge.

"This has no political tilt to it," Kagan said, taking aim not only at the sweeping injunctions but at the transparent "forum shopping" by litigants filing cases in courts they think will be friendliest to them.

"You look at something like that and you think, that can't be right," Kagan said. "In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas. It just can't be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process."

Comments

[The Margrave of Azilia]

She sounds correct, and I'll take her word that she's just being commonsensical, not political.

[jdgalt1]

Congress certainly has the power, maybe with limits, to delimit the jurisdiction of courts other than the Supreme Court. Why has it taken so long for Congress to bother? Have they done so in the past, but allowed their work to fall to ruin by neglect, or is some other factor at work here?

[apedad]

Because both sides want to have this tool/option in their back pocket to use when needed.

[TwelveInchPianist]

If only she were a part of some institution that could do something about the problem...

[Michael D]

Nice witty comment

[Michael D]

I still want an answer to a hypothetical ruling by the district in favor of Mr. Korematsu. Should it only have applied to him? Should it only have applied to anyone interned in that court’s jurisdiction?

If the government appealed and lost at the Circuit court, would it only apply to the area covered by the Circuit Court?

Exactly how long would the US citizens locked away for years have to wait before the courts decided in their favor?

You lawyers will not have to answer because we know that they had to wait years and the courts always sided with the government. Shocking!

The fact remains, the executive order of President Roosevelt applied nationwide. The severely egregious nature of the violation of the rights of every single US citizen interned during that time demanded immediate relief. Not just relief for one person or class-action relief for a group. The widespread application of the policy across the entire country (yea, concentrated on the West Coast by applicable nationwide) make a national injunction the only remedy.

Frankly, FDR should have been removed from office at that moment and tried for any number of crimes including false imprisonment and kidnapping.

[jdgalt1]

Agreed. If we want to forbid national injunctions by lesser courts, then we need an expedited process for such cases to be appealed to the Supreme Court, and for it to grant national temporary restraining orders in cases it is going to take up, even if the court's only action on some of them may be to GVR or DIG.

[Eric VonSalzen]

Michael you raise a valid question whether "a hypothetical ruling by the district [court] in favor of Mr. Korematsu" would have applied to all other Japanese Americans. Here's my suggested answer to your hypothetical.
The Govt order in Korematsu required "all persons of Japanese ancestry, including aliens and non-aliens" to relocate to internment camps. If the trial court had found that the "all persons" order was invalid, it could have totally enjoined it. But that would have left the Govt free to enter a new order that required particular persons to relocate if they were found to represent a threat to national security. If the court found that this new order satisfied procedural due process, it would have had to make a case-by-case determination whether each internee was validly found to be a threat. Or, it could have held that the Govt doesn't have the power to intern persons found to be a threat to national security in wartime.

[David Nieporent]

I still want an answer to a hypothetical ruling by the district in favor of Mr. Korematsu. Should it only have applied to him? Should it only have applied to anyone interned in that court’s jurisdiction?

As people explained to you, Korematsu was a criminal prosecution. Not a request for injunctive relief. A hypothetical dismissal of the charges against him would by definition only apply to him.

[not guilty]

Korematsu was not an action for injunctive relief. The appeal arose from a misdemeanor criminal conviction.

[Michael D]

Let us not mince words here. His criminal charge was based on the criminal act of the President. Submission to FDR’s act of tyranny is not an a criminal act no matter what the courts might say.

Had the charge been overturned, the only response for the court would be to find the Presidential order to be invalid and to vacate it immediately.

[Dan Schiavetta]

Why can the government oppose an injunction in Texas when an injunction on the same grounds has already been granted in New York? They’re collaterally estopped.

[dwshelf]

Now maybe she could have shown them where she voted in favor of enabling a Trump policy which had been so blocked.

To show us that it isn't political, you know.

[Sarcastr0]

Her objection is to district court remedies, so dunno how a SCOTUS finding is comparable.

[dwshelf]

https://en.wikipedia.org/wiki/Trump_v._Hawaii.

[apedad]

I disagree with Justice Kagan and would like to correct her on one point, "It just can't be right that one FEDERAL district judge. . . ."

FEDERAL judges should decide the case in front of them.

If the case happens to have nationwide implications, then so be it.

If the federal government policy being reviewed has nationwide scope, then a FEDERAL judge has the authority to stop or continue the policy on a nationwide-level.

If the federal government policy is not nationwide, e.g., something specific about the Tennessee Valley Authority, then the decision would be limited within the scope of the TVA.

[Archibald Tuttle]

Tongue in cheek: How about a national injunction against national injunctions?

Seriously, can district courts interfere with other district courts? It would seem illogical to allow that.

[Eric Owens]

“…In order to prevent misconstruction or abuse of its [treaty/commerce/tax/war/etc] powers, that further declaratory and restrictive clauses be added”

The national injunction is probably what’s referred to as karma.

[Tall Paul]

This is just another example of leftists pushing the envelope beyond its limits but not seeing it as a problem until someone on the right does the same thing, at which point it becomes an obvious outrage that has to come to an immediate end. But, as it turns out, the next time the left tries to resume the practice, certain "exceptions" and "distinctions" will be discovered.

[J555]

Strangely enough, Kagan never voiced any objections to this practice during the Trump years.

I'm really starting to think that the one defining trait of all leftists, whatever their other differences, is hypocrisy ... the belief that the rules for them are --- and SHOULD be --- different from the rules for other people.

[J555]

Here's the account by Josh Gerstein of Politico, which leaves no doubt about where she stands

Oh, there is no doubt about where she stands ... she stands with the Democrat Party, whatever it does and regardless of the merits or consistency of its position.

One of these cases came before the SCOTUS during the Trump years... and Kagan sided with the District Court judges who were stopping nationwide policy in its tracks. She's an unprincipled hack.

[nicmart]

We are constantly treated to civics textbook analyses while the entire edifice of American jurisprudence, indeed American government, is exposed as rot. The legal cartel lives well, and objects only occasionally and politely, while the US continues to have the highest incarceration rate in the world.

“If all the lawyers were hanged tomorrow, and their bones were sold to a mah jong factory, we’d all be freer and safer, and our taxes would be reduced by almost a half.” — H. L. Mencken

Libertarian-ish lawyers are no exception.