The Role of the Judiciary in the Trump Era
Most of us have the privilege of error. For the majority of people living in the United States, small violations of the law—speeding, jaywalking—result in little more than the annoyance of a ticket. Yet millions of undocumented immigrants live in fear that the slightest transgressions, the most insignificant errors in human judgment, can lead to a life radically changed. The specter of deportation hides perpetually behind flashing blue-and-red lights.
Sanctuary cities reduce the perpetual threat of deportation. In order to foster collaboration between law enforcement and undocumented immigrants, sanctuary ordinances allow local police offices to not notify ICE when an undocumented immigrant is detained for a minor offense. The right of cities to issue sanctuary ordinances was recently upheld in a number of lower court cases, including City of Chicago v. Sessions.
City of Chicago v. Sessions is not the only case limiting Trump administration policies. Several court decisions have limited President Trump’s attempted termination of DACA, a program that grants legal protection from deportation to undocumented immigrants brought to the US as children. A ruling in the District Court for the Northern District of California allows current DACA recipients to renew their work permits. Trump’s ban on transgender people joining the military was overturned by courts in Washington, D.C. and California. Trump’s travel ban, though ultimately upheld in the Supreme Court, was twice struck down by various lower-level courts. The third and final version was less stringent, affecting fewer countries and implementing fewer restrictions than the previous two.
But how much can courts really do to limit the aggressive executive action of the Trump presidency?
Despite these rulings, the answer is disheartening: not much. There are natural limitations to the power of lower level courts. For instance, the sanctuary cities ruling only applies to cities that choose to issue sanctuary ordinances—many do not. Moreover, sanctuary ordinances are weak: they merely allow police officers to not send information about a person who is undocumented when they commit a minor offense, such as speeding. Yet there is plenty ICE can do regardless. They have information that far exceeds the reporting from local police offices, and their jurisdiction is in no way affected by this ruling.
The bottom line is that ICE has the capacity to find most people it is looking for with or without the cooperation of local law enforcement. None of this suggests that the sanctuary cities ruling is irrelevant, simply that there are substantial constraints on how much it can do. For most undocumented immigrants, the threat of deportation remains palpable.
Yet even in cases where federal policy is affected it is possible that courts’ decisions can be circumvented. Bill Hing is a professor of Law and Migration Studies Professor at the University of San Francisco and founder of the Immigrant Legal Resources Center. In an interview with The Politic, he suggested that there are executive actions which courts cannot limit, such as a potential termination of DACA. Perhaps courts can uphold the legality of DACA, but if the program is terminated by the executive, courts are powerless to defend it. Courts can rule on issues of law, but when executive action seems wrong but not illegal, there is little courts can do.
But what about possible policy choices that are both illegal and wrong? In these areas at least, can we trust courts to enforce basic constitutionality?
Much depends on the degree to which courts are politicized. Hing thinks the politicization of the judiciary makes it harder for courts to rule purely on the basis of legality. For example, on the question of whether courts would uphold a limitation on birthright citizenship—which Trump has hinted he might support—Hing says that “15, 20, 25 years ago, I would have answered the question differently. I would have said I have absolute confidence that the judiciary would…rise above the politics. I am less confident of that today.” This is dangerous—conservative courts can uphold constitutionally dubious Trump policies, making it harder for other courts to reject those policies.
Much of the politicization of the judiciary results from changes in the mentality of US Senators. For Hing, “This idea of viewing yourself in a vision of trying to do the right thing for the country…whatever that might be, rather than…always voting in a completely partisan way, I don’t see that ending.” The judges who receive the most support from the party in power may not be the best judges, simply the judges most likely to vote along party lines.
The haste with which the GOP has approved circuit court judges in the last two years ought to concern progressives. Trump has approved 29 judges to Federal circuit courts, a record in recent years: at this point in his first term, Obama had appointed 11. In 2013, the Democrats ended the supermajority requirement to move on to a confirmation vote and banned filibusters to challenge nominations. These two procedural changes, combined with the increase in the Republican Senate majority in the midterm elections, make it harder for Democrats to stall future nominations.
There are 11 remaining vacancies in circuit courts and 112 remaining vacancies in district courts. Expect Trump to fill these quickly. Amanda Frost, a law professor at American University, told The Politic that “The Trump administration has been enormously effective on judges…I think the courts are going to be deeply conservative for many, many years.”
The increasing conservatism of the Supreme Court matters too. The Supreme Court decides which cases to hear. The recent confirmations of Justice Gorsuch and Justice Kavanaugh increase the likelihood that any given anti-Trump ruling in circuit courts gets to the Supreme Court. This suggests that, even when lower-level court decisions rule against Trump policies, some of these rulings may be overturned.
Yet there is a controversial legal practice that could potentially act as a safeguard against the increasing number of conservative judges in federal courts. This controversial practice is known as the nationwide injunction. Most lower court cases that receive widespread coverage in national news use nationwide injunctions.
The nationwide injunction gives lower-level courts pseudo-legislative power. They occur when a specific court rulings affect the entire country, not just the specific defendants in a case. For example, when an Illinois district court ruled that the Department of Justice could not withhold funding from Chicago for becoming a sanctuary city, every sanctuary city in the country was affected.
Nationwide injunctions matter. They allow single court decisions to have substantial nationwide impact. Even if most courts become conservative, decisions made in liberal courts can affect the rest of the country.
Of course, this power is limited. It is standard legal practice for courts to incorporate the opinions of other courts into their own decisions. District court decisions can be appealed, meaning multiple courts hear many cases. Still, nationwide injunctions are powerful.
Samuel Bray, a law professor at Notre Dame Law School, thinks they are too powerful. As he points out in an interview with The Politic, the question of nationwide injunctions is always going to be perceived as political when, in fact, it may not be: “At any particular moment, the national injunction seems partisan. It seems like, right now, it is a Democratic weapon against Trump, and, before, it was a Republican weapon against Obama. I think it’s more complicated than that, partly because, right now, the Affordable Care Act could be threatened by national injunctions.”
Nationwide injunctions do not only threaten Republican policy—they threaten policy generally. While liberal courts can use them to limit Trump policies, conservative courts can limit Obama policies too. For example, DAPA, an Obama-era program to extend legal residence to the parents of citizens or residents, was blocked by nationwide injunctions issued by federal district courts before Trump took office. Nationwide injunctions are in fact nonpartisan—they pose threats to both parties’ policies.
Critics argue that nationwide injunctions are destabilizing, as they give courts immense power over national policy. They point out that nationwide injunctions promote “forum shopping,” the practice of choosing to sue in favorable courts. Forum shopping means any law that could potentially be struck down is always challenged in the court most likely to strike it down. It gives immense legislative power to lower-level courts, and potentially creates a constant state of instability in national policy.
Further, nationwide injunctions may simply exceed the role that the judiciary ought to have. As Bray argues, “Courts have tremendous power, and we trust them to do a lot. We trust them with that precisely because of certain kinds of constraints on the judicial role.” Arguably, we give judges the power to make binding decisions because they stay in the role of passing judgment on the parties involved in a trial. Allowing judges to rule on every possible party is, for Bray, “outside the judicial role.”
Scholars generally agree that courts should, in most circumstances, avoid nationwide injunctions. However, many contend that, in some situations, they are necessary. Frost points out that nationwide injunctions are essential in cases where consistency in national policy is important, such as immigration.
Moreover, Frost argues that nationwide injunctions are appropriate in response to the recent overuse of executive action by Trump, but also by Obama. She argues that, “When the executive acts alone, especially if there is no clear sanction by Congress…there is more leeway for checking him than when the political branches act together. His action is more constitutionally suspect if he pushes the boundaries of what we think the federal government can do.”
The future of nationwide injunctions is uncertain. It is unlikely that the Democratic majority in the House will ban them while Trump is president. Except for sparse lines and footnotes in some court opinions, the Supreme Court has avoided commenting on the issue in recent years. Some scholars think that injunctions are likely to be struck down by the Supreme Court. Others think the court will remain quiet.
Either way, the issue of nationwide injunctions has substantial implications on lower courts’ capacity to limit Trump policies. If the Supreme Court chooses to ban nationwide injunctions in the next few years, it will be much harder for lower-level decisions to influence policy outcomes. Circuit and district court decisions will affect fewer people and will be more broadly challenged in a world without nationwide injunctions. Yet, to the extent that injunctions are allowed, they can be used to limit Obama’s legacy, and they can create instability in national policy.
The bottom line is that judges are becoming increasingly conservative. It is unclear that nationwide injunctions are a means through which liberal courts can or even should fight against that tide. Regardless, the naturally limited domain of courts, and the increasing degree to which they are affected by politics, makes it such that it is difficult for them to change the policy direction of a country. Perhaps they will intermittently rule against specific policies, but they cannot change widespread tendencies in executive governance. Widespread change must come from the ballot box. Do not expect it to come from the gavel.