Universal Injunctions, Congressional Capacity, and Filibuster Reform

Today I participated in a Rappaport Forum discussion at Harvard Law School titled "Rule by One Judge: The Question of Universal Injunctions." My fellow participant was Professor Mila Sohoni, and our moderator was Professor Guy-Uriel Charles. It was an excellent discussion, and you can watch it here.

Two of the students who attended sent me this very interesting note afterwards, which I am posting with their permission:

Today at Harvard Law School's Rappaport Forum, Professor Guy-Uriel Charles moderated a fantastic conversation between Professors Mila Sohoni and Sam Bray on the legality of "universal injunctions." To highlight the real world stakes of the debate, Professor Charles asked the panelists why there's been a sudden uptick in universal injunctions in recent years. The answers highlighted the link between the increasing prominence of federal courts and the dysfunction of Congress.

Professor Sohoni pointed to the phenomenon of "old statutes, new problems" as one of the key drivers behind the recent spike. As she put it, we have to consider nationwide injunctions against the executive's "background level of illegality." As Congress fails to legislate on the issues that matter most, federal agencies step in to fill the void—often with only a tenuous claim to statutory authority.  Hence the uptick in controversial rules—and attendant universal injunctions—in matters relating to topics like gun control and contraception.

Professor Bray expressed concerns about the anti-democratic nature of universal injunctions: after all, a single district court judge places the policy priorities of a duly elected president on hold. If one shares Professor Bray's concerns, then one should think critically about reforming Congress so that it can live up to its legislative responsibilities. If Congress were capable of legislating once again, it would pass new statutes  to respond to new problems. There'd be less of a need for agencies to interpret outdated statutory authority in novel, aggressive ways. As a result, there'd be fewer occasions for single district judges to issue universal injunctive relief that places presidents' policy agendas on hold.

There's no single fix to Congress's retreat from relevance. In this fall's issue of National Affairs, we proposed one: reforming the Senate filibuster. Our proposal is simple: if the Senate can't clear a 60-vote supermajority threshold, it should instead just have to clear a simple majority threshold twice, with an election in between. As we explain in the article, this reform would empower Congress to legislate a bit more on the issues that matter, while also enhancing deliberation. It might even improve the overall tenor of our politics.

Turns out our proposal might also help make universal injunctions less frequent and less consequential.

Thomas Harvey & Thomas Koenig are students at Harvard Law School. Follow them on Twitter @Tom_Harvey94 and @thomaskoenig98.

Comments

[Flight-ER-Doc]

With an election in between? Binding a sitting senate/congress to the decision of a previous senate?

So, bills never die? As soon as an election happens they can vote on an idea?

[Dr. Ed 2]

It would have precluded Trump's second impeachment because the prior acquittal would have bound the new Senate.

The only reason they could do it twice was because it was a new Congress and everything before was gone.

[SRG2]

Nope, because the grounds for impeachment were entirely separate and distinct.

[Lee Moore]

Not sure you’re analysing the proposal correctly. I read it as vaguely analogous to the UK system since 1910 or so.

Prior to that a Bill had to be passed by the House of Commons (elected guys) and by the House of Lords (non elected guys) and then rubber stamped by the King (a mere formality.) You can see the same basic idea in the US - House, Senate, Presidential sign off.

In 1910 or so after a big constitutional fuss this was changed. With a few specified exceptions, a law can now be passed by the House of Commons alone, iff

1. The House of Lords refuses to pass a Bill passed by the Commons
2. At least a year later
3. And in the next session of Parliament (no intervening election required) the Commons passes exactly the same Bill (minor twiddles like a new commencement date are allowed)
4. The Lords say no again
5. Some specified time passes
6. The Bill is presented to the King and he signs it

Thus there is no obligation placed on the later Commons to re pass the same Bill. Instead it’s a right - if they choose to pass the same Bill again, they can bypass the Lords.

In practice this procedure is hardly ever used, because the Lords knowing they only have the power to delay, don’t try to block. But because the Commons doesn’t want to wait a year for its pet projects, it is willing to amend the more outrageous bits if the Lords object.

So I read the students plan as simply a filibuster rule change whereby the Senate rules permit but do not oblige the later Senate to pass the same Bill without a filibuster in the next Congress.

[David Nieporent]

Binding a sitting senate/congress to the decision of a previous senate?

Binding? The new one still has to vote in favor of it.

This is hardly a crazy proposal; many states work that way for constitutional amendments.

[Dan Schiavetta]

If one judge issues an injunction against a government policy, the government will run into a res judicata/collateral estoppel holding if it tries to oppose an injunction on that policy anywhere else. End of analysis.

[TwelveInchPianist]

Ending the analysis before discussing US v. Mendoza? Seems premature.

[Eric (the OC tanker)]

If congress did not expressly give authority to an Executive branch agency to perform an action, then that agency has no authority to perform that action. Plain. Simple. End.

[Lee Moore]

I agree, but I don't think that justifies an injunction imposed on the government generally, ie beyond its dealings with the actual successful plaintiff.

[Aubrey LaVentana]

The Tenth Amendment smiles.

[Longtobefree]

Or judges could just stop issuing injunctions for areas outside their jurisdiction?

[Dr. Ed 2]

I never understood how they could -- or why they couldn't issue contradictory injunctions. Districts don't bind each other...

[Purple Martin]

You have a short memory. Just entered "Washington Texas federal district judges issue contradictory abortion pill decisions" and up popped dozens of articles about only the most recent such inter-state kerfuffle.

Most were variations of this example from CNBC:

Judge Thomas Rice ordered the FDA to keep mifepristone on the market in 17 states and D.C., while Judge Matthew Kacsmaryk suspended the FDA's approval of mifepristone nationwide.</blockquote

[Aubrey LaVentana]

That explains that the courts do enter contradictory judgments.

It doesn't explain how.

[Dr. Ed 2]

” a single district court judge places the policy priorities of a duly elected president on hold.”

Isn’t this why SCOTUS was given primary jurisdiction on certain types of cases? Maybe national injunctions should start with the national court.

As to filibuster, I’d like to go back to the old rules where the filibusters had to actually speak during the filibuster — they used to read the DC phone book and such. And I realize that those law students have probably never even seen a phone book, at least the old 4″ ones.

But the Senate was intended to be a drogue anchor on the populist House, which was also why the Senators were not initially directly elected. The Constitution was written by people who saw the French Revolution start to unfold, several had actually been to France. They also were aware of Shay’s Rebellion the year before and it had scared the daylights out of them — they wanted the Senate as a check on the populist mob and the popularly-elected House.

Yes there are consequences of the filibuster but what has it saved us from? But for Harry Reid’s “nuclear option”, we wouldn’t have Justices Kavanough or Jackson and probably not others. Were we better off when nominees had to have some minority party votes?

Before it was "Obama" Judges and "Trump" Judges?

Yes the Civil Rights Act was filibustered, but that built support for it and made it bipartisan. Now compare that to Obama NoCare that didn’t have a single Republican vote for it — and which the GOP is still fighting.

The filibuster prevents one party from rubbing the other party’s face in the dirt, and don’t we already have enough of a problem with that???

This is a bad idea from young people who aren’t old enough to have seen the consequences of populist angst go bad.

[Dr. Ed 2]

I couldn't get this in time -- I have no doubt those young law students are well intended, but I also think Brandeis was right:

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

[Olmstead v. U.S., 277 U.S. 438 (1928) (dissenting)]”
― Louis D. Brandeis

[David Nieporent]

The Constitution was written by people who saw the French Revolution start to unfold,

JFC, can you get anything right? The French Revolution did not start until two years after the Constitution was written and one year after it was ratified.

[Dr. Ed 2]

"START to unfold..."

The Boston Massacre was March 5, 1770 -- six years earlier.

[Absaroka]

Dr. Ed: " The Constitution was written by people who saw the French Revolution start to unfold, "

Wiki on the French Revolution: "The French Revolution[a] was a period of political and societal change in France that began with the Estates General of 1789, and ended with the coup of 18 Brumaire in November 1799..."

Wiki on US Constitution:
Created September 17, 1787
Presented September 28, 1787
Ratified June 21, 1788

Analysis: nitpickers may say that 1788 happened before 1789, but note what Ed actually said - the constitution was written by people who saw the French Revolution unfold. And that is largely true! Most of the people who drafted the constitution were still alive as the French Revolution unfolded! They just didn't see it while writing the constitution, thus making Ed's causation arrow unlikely.

In another thread, Dr. Ed said "I have a day job, it isn’t janitor, and I’m not quite anal enough to keep rechecking everything on a daily basis". Here's a thought - check before posting? Not everything, just the things you are about to post.

(Not sure what the timing of the Boston Massacre has to do with the Constitution/French Revolution timeline)

[Dr. Ed 2]

The Declaration of Independence was approved on July 2, 1776, but was that the start of the Revolutionary War?
The Battle of Lexington and Concord was on April 19, 1775, but was that the start of the Revolutionary War?
The Boston Tea Party was on December 16, 1773, but was that the start of the Revolutionary war?

While they were justified, the first time that British Soldiers fired on Americans was March 5, 1770 -- although the tensions that would lead to the Revolution started before even that.

My point is that the tensions that led to the French Revolution existed before the actual Revolution.

Jefferson, Adams, & Franklin were in France in 1784 -- they had to see what was going on around them.

[Soronel Haetir]

And who says that it even needs to be the federal government that addresses issues like gun control? To my mind it is one of the driving factors of our politics becoming so vicious, the fact that decisions are becoming ever more centralized. If Congress does act on a hot button issue, it is going to do so in a way that upsets significant portions of the electorate, no matter what choice it makes. And unfortunately we live in a "we've got to do something" world, even if, on reflection, "nothing" would be the better option.

[Lee Moore]

1. A lot of weight is being placed on the alleged "need" for more legislation. I can think of a lot of legislation that I would like to see passed (mostly of repealing nature) but I cannot quite summon the requisite arrogance to describe my preferences as "needs."

Memo to self. Strive for more arrogance.

2. I can see the proposed new Senate filibuster rule lasting about 20 minutes before it dissolves into a no filibuster rule.

[devilsadvocateri]

"Only by granting lawmakers the power to enact more and better legislation can we ensure that both Congress and the Supreme Court are fulfilling their proper roles in our constitutional order."

who said more is better . . .

[Aubrey LaVentana]

Rather than 'more is better':

Reserve the first two weeks of a new Congress for only bills of repeal.