its time for democrats to do something about far right judges

Far-right, activist judges are on a rampage against Democratic policies. Last month, tens of millions of eligible Americans were prevented from getting up to $20,000 of their federally held student loans canceled by President Joe Biden under his long-awaited debt relief program. Unfortunately, this setback to the Biden administration’s carefully-crafted, broadly popular executive order did not come from elected officials accountable to any American constituency. Instead, the hopes of millions of Americans with debilitating student debt were dashed by a single right-wing federal district court judge in Texas appointed by former President Donald Trump.

Although the Biden administration has appealed this ruling, its long-overdue student debt relief program will now, at a minimum, be stalled for many months. This begs an important question: How can a lone Trump-appointed judge in Texas, through a single opinion, overturn the Biden administration’s meticulously planned executive order in all 50 states?

This issuance of a universal, or nationwide, halt on federal policy by a single right-wing judge is not a one-off incident. Over the past two years, activist district court judges have been issuing this kind of sweeping injunction of Biden’s policies, and even the laws of Congress, with alarming frequency.

In April, U.S. District Court Judge Kathryn Mizelle, a Trump appointee in Florida, struck down the Biden administration’s mask mandate for public transportation, a common-sense public health measure meant to reduce the spread of the deadly COVID-19 virus. In June 2021, U.S. District Court Judge Marcia Howard, a former President George W. Bush appointee in Florida, halted a provision in the American Rescue Plan Act that provides $4 billion in debt forgiveness, grants, and training, and education to farmers and ranchers of color to redress the effects of discrimination. On dubious legal grounds, Trump-appointed district court judges have also blocked Biden’s plan for a 100-day pause on deportations upon his taking office and his effort to end Trump’s inhumane “Remain in Mexico” policy. And, as of this month, a Bush-appointed judge appears poised to strike down an Affordable Care Act provision requiring employers to cover treatment like HIV-prevention pills and other preventative medical services.

Travelers transit through Miami International Airport in Miami, Florida, on April 22, 2022. The U.S. government is appealing a court ruling that controversially lifted a federal mask mandate on public transport earlier this week, the Justice Department said on April 20. After the Centers for Disease Control and Prevention (CDC) assessed that masks remain “necessary to protect the public health, the Department has filed a notice of appeal,” spokesman Anthony Coley said. A federal judge on April 18 struck down the COVID mask mandate, stating that it exceeded the CDC’s statutory authority.
Photo by DANIEL SLIM/AFP via Getty Images

As U.S. Supreme Court Justice Neil Gorsuch — a conservative Trump appointee — pointed out in his concurrence in Department of Homeland Security v. New York, the “routine issuance of universal injunctions” will inevitably prove “patently unworkable” for the federal legal system. First, one judge’s decision to implement a nationwide injunction is, by definition, a “rushed, high-stakes, low-information” decision based on limited facts in an ordinary federal district court’s docket.

Second, the ability of a lone, right-wing, activist judge in Florida or Texas to issue decisions that bind parties other than those who are a party to the case encourages forum shopping. Over the last two years, right-wing litigants have figured out that they can obtain nationwide injunctions by specifically targeting states like Texas, where local rules allow them to handpick any one of several Republican-appointed federal district court judges who will hear their case — many of whom have track records of issuing universal injunctions in support of conservative causes.

The consequences of these universal injunctions have been dire. Millions of Americans were deprived of life-changing student debt relief during high inflation and record wealth inequality. A deadly virus that would be better contained if basic protocols like masking were implemented based on scientific data and public health expertise. Thousands of vulnerable migrants unjustly returned to dangerous conditions in their home countries based on illegal Trump-era policies that remain in effect.

I have long called for Congress to restore sanity to our democratic system and exercise its well-established constitutional powers to regulate the federal judiciary.

As one of my final acts this term, I’m introducing the “Injunction Reform Act” to bar the ability of activist federal courts to issue nationwide injunctions of federal policies, channeling that authority instead to the federal district court in Washington, D.C., the D.C. Circuit Court of Appeals, and the U.S. Supreme Court. By making these three courts the only ones that can universally enjoin federal laws, regulations, and executive orders, my bill would vest this authority in the courts best suited to make decisions with national implications — as judged by their jurisprudential history and subject-matter expertise.

Nationwide injunctions are not per se a bad thing; we saw their appropriate use during the racist, xenophobic presidency of Trump, like when courts blocked his attempt to add a “citizenship question” to the 2020 census as part of a strategy to deny representation to non-citizens in the drawing of congressional seats and counting of Electoral College votes. However, at its core, the judicial branch exists to impartially administer laws as they are written. It should overrule the executive and legislative branches only when the law — rather than politics — dictates that result. The judicial branch does not exist to legislate from the bench, through a long list of Trump-appointed judges creating policy on behalf of a political party increasingly unable to win national elections absent voter disenfranchisement, foreign meddling, or election subversion.

Democrats must respond to this historical moment of right-wing judicial activism by limiting the ability of activist judges to strike down federal policies without a basis in fact or law. In doing so, we would restore integrity to the judiciary while returning power to the people and the representatives they elect.

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