President Biden is pushing an expansive agenda — but Trump-appointed judges are pushing back, using a powerful combination of legal tools to stymie the administration.
The most recent instance came earlier this month when Judge Robert Summerhays ruled the president’s team had cut too many procedural corners in arriving at its decision to end the Title 42 pandemic border shutdown, putting the president in violation of the Administrative Procedure Act.
Judge Summerhays, in issuing a preliminary injunction against ending Title 42, ruled that his injunction would apply nationwide, effectively halting the Biden team in its tracks.
That same one-two legal punch has also been used by judges to ding the president’s deportation pause, his attempt to erase the “Remain in Mexico” border policy, and his effort to expand consideration of greenhouse gas emissions in federal policymaking.
All were victims of the APA and nationwide injunctions, wielded by Trump-appointed judges.
The judges’ fans say they’re standing up to presidential overreach, ensuring a White House can’t send the nation careening on major policy changes without giving the public a chance to be heard.
Opponents say abuse is rampant, with plaintiffs calculating where to bring lawsuits in order to find judges most amenable to their goals.
“There is no question that a number of Republican states have turned the nationwide injunction into a political weapon against the Biden administration, by bringing cases seeking such injunctions before Trump judges who appear sympathetic to such efforts,” said Elliot Mincberg, a senior legal fellow at People for the American Way.
Just a few years ago PFAW cheered a ruling that imposed a nationwide halt to Mr. Trump’s attempt to end the DACA program for illegal immigrant “Dreamers.”
Meanwhile, it was conservatives who decried the injunctions as judicial overreach. Now, with Mr. Biden in office, many of those who criticized nationwide injunctions before have embraced them, saying it would be unfair to change the rules now, after having to live under them for the last four years.
Conservatives argue the president has invited the flurry of court challenges.
“The Biden administration has shown little respect for federal laws and absolutely no patience for administrative procedures,” said Mark Brnovich, Arizona’s attorney general, who has launched a number of challenges to Biden policies on everything from erasing the Title 42 pandemic border shutdown and stopping wall construction to coronavirus policies.
Mr. Brnovich said the federal courts deserve applause for helping “hold the Washington elites accountable.”
National Scope
Under normal circumstances, judges confine their rulings to the parties in a case in front of them. If one state sued over a federal administration policy and a judge sided with the state, only that party would be carved out of enforcement. The other 49 states would still be bound.
But judges who’ve issued nationwide injunctions say that doesn’t really work in areas like immigration, where having a uniform national policy isn’t just a good idea, it’s literally written into the Constitution. And forcing Homeland Security to abide by one set of rules, say over deportation, in Texas while following another set in California is a recipe for chaos.
“A piecemeal preliminary injunction would only further complicate DHS’s operations,” Judge Summerhays wrote in his Title 42 case injunction earlier this month.
Besides, the judge wrote, immigrants who cross at one part of the border can quickly move elsewhere, so any solution must be national.
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