Jeff Sessions tells DOJ to fight ‘judicial activism’ in nationwide injunctions

September 13, 2018

Attorney General Jeff Sessions urged Justice Department lawyers on Thursday to resist expanding claims of power by federal judges who order nationwide injunctions against government policies.

Those nationwide injunctions have become an unlikely but fiercely debated legal hot spot in recent years, as judges have used them to delay both President Obama and President Trump from pursuing their agendas.

Mr. Sessions called that “judicial activism” and said it’s time the government’s lawyers push back.

“We have a government to run,” he said. “The Constitution does not grant to a single district judge the power to veto executive branch actions with respect to parties not before the court. Nor does it provide the judiciary with authority to conduct oversight of or review policy of the executive branch.”

He has issued new guidance to Justice Department lawyers who find themselves defending government policies in cases where a judge is considering a nationwide injunction. He urged the lawyers to strenuously argue against nationwide injunctions in those cases.

Injunctions serve as judicial blockades on the government taking action.

For most of the country’s history, judges limited their injunctions just to the parties arguing in front of them. Mr. Sessions says scholars can’t find any issued before 1963.

But in more recent cases, federal district judges have argued that when they determine a policy is likely illegal, they believe it needs to be halted at its root meaning a national blockade.

One example came in 2015, when a federal judge in Texas ruled the Obama-era DAPA deportation amnesty was likely illegal, and blocked it for the entire country. The Obama administration at the time had pushed for a narrower ruling only covering the states that had sued.

More recently, Mr. Trump has run into the same problem. Mr. Sessions said he’s been slapped with 25 nationwide injunctions ranging from his travel ban to his sanctuary city crackdown to his rollback of the Obama-era DACA deportation amnesty, a sister policy to the DAPA case.

The issue has gotten attention from the highest quarters, with Supreme Court Justice Clarence Thomas questioning the validity of nationwide injunctions.

It even came up last week in the confirmation hearings of Judge Brett Kavanaugh, Mr. Trump’s nominee to fill the vacant Supreme Court seat.

He declined to share thoughts, saying he figures he’ll have to rule on it soon enough.

“That is an issue that is being contested currently in courts around the country, I think, and as an issue of debate. And therefore, I think I’d better say nothing about it. I apologize for that, but it is an issue of current debate,” he said.