Earlier today I was reading Prof. Josh Blackman’s post responding to criticism he has received for using the term Judicial Resistance, On the Judicial Resistance:

Over the past year, I have discussed at some length the self-professed “legal resistance,” which has coordinated legal strategies to resist President Trump in the courts. This front is part of the broader #Resistance movement against President Trump in the political sphere. These actions are completely rational, and unsurprising from the party that (unexpectedly) lost the election…. Without question, I have been extremely critical of these judicial opinions, which I firmly believe are profoundly flawed. Yet, I work very hard to ground my opposition in substantive arguments (many of which are published on Lawfare), and not devolve into political barbs…. The clearest articulation of my views on the judicial resistance comes in an October 2017 National Review essay that doesn’t even use the phrase. It develops three points that I’ve developed over-and-over again. First, I have written at voluminous length that these judges have abandoned the traditional deference afforded to the President based on Trump’s conduct. That is, the presumption of regularity has been abandoned… The consequence of this jurisprudence is that in effect, President Trump is disabled from exercising his own constitutional authority because of the circumstances in which he became president…. Second, courts have been motivated to reach out to resolve difficult constitutional questions when countless prudential barriers (standing, justiciability, constitutional avoidance, etc.), which would usually be adhered to, are ignored. In particular, the courts have shown no hesitation in second-guessing the government’s national security rationales,… Third, the courts have repeatedly questioned the president’s motivations as acting in bad faith, and doubted government lawyers who have offered legitimate reasons in court….

Read the entire post by Prof. Blackman, in which he explains that while he doesn’t claim bad faith by any judges, the result has been an abnormal judicial interference (my terminology).

Having covered many of the court decisions, particularly District Court decisions, which read in parts like political manifestos, I certainly agree that there is a judicial resistance to Trump.

We saw it in the travel order cases, and again in the January 2018 order from a San Francisco federal court judge order preventing Trump from ending DACA. I wrote of that Order

Another day, another judicial intervention trying to prevent Donald Trump from exercising his lawful Executive Branch powers. Of course, that’s not the verbiage the court used, but it’s a fair characterization of the San Francisco federal district court decision (full embed at bottom of post)(pdf.) in a lawsuit brought by Janet Napolitano on behalf of the California Regents seeking an injunction against Trump’s plans to end the DACA program. The essence of the decision is that the stated reasons for ending the program were that the Trump administration considered the DACA program an unconstitutional attempt by Obama to evade the law as passed by Congress. The judge disagreed with the administration as to whether DACA was constitutional or not, and hence found the decision to end the program arbitrary and capricious as applied to people already enrolled…. What’s so outrageous about the decision is that it equates a disagreement as to policy to a lack of policy. There was nothing arbitrary or capricious in the administration taking the policy position that the decision whether to continue DACA should rest with the Congress. It may be a policy choice the Court disagrees with, but it was a policy choice nonetheless, grounded in what even the Court found to be an arguable interpretation of the law. It was was the valid exercise of executive power to reverse the policy decision of the Obama administration because of a different view of executive power….I would expect this decision to result in another stay, if not from the 9th Circuit, then from the Supreme Court. There is a constitutional crisis in progress, one in which the Judiciary wrestles policy decisions away from the Executive Branch. Elections matter on policy decisions, unless that election is won by Donald Trump.

DOJ sought direct review by the Supreme Court, a rarely granted process, without having to have the case determined initially by the 9th Circuit.

DOJ did not seek a stay, but did seek expedited Supreme Court review. The Supreme Court ordered expedited briefing, and will consider whether to accept the case this Friday during conference.

Expedited Supreme Court review would be timely because now a second federal District Court judge has barred Trump from terminating DACA on March 5. The decision is pretty much a carbon copy of logic as the San Francisco decision. Prof. Ruthann Robson describes the holding:

In a 55 page opinion in the consolidated cases of Vidal v. Nielsen and New York v. Trump, United States District Judge Nicholas Garaufis granted a preliminary injunction against the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. Recall that New York, joined by 15 other states and D.C. filed a complaint last September alleging the DACA rescission violated the constitution as well as being unlawful under the Administrative Procedure Act (APA). Judge Garaufis’s Order is based on a violation of the APA finding the rescission arbitrary and capricious based in part on the Attorney General Jefferson Sessions’s memo finding the DACA program unconstitutional. After an extended analysis of Sessions’s Letter, Judge Garaufis writes To the extent the decision to end the DAGA program was based on the Attorney General’s determination that the program is unconstitutional, that determination was legally erroneous, and the decision was therefore arbitrary and capricious. The court does not address whether the DACA program might be unconstitutional on grounds other than those identified by the Attorney General, as any such grounds are not fairly before the court.

As Prof. Robson describes, the preliminary injunction is fairly narrow, and actually allows the Trump administration the ability to terminate individual participation without limitation, quoting from the opinion:

This order does not hold that the rescission of DACA was unlawful. That question is for summary judgment, not motions for a preliminary injunction. Cf. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953) (“[A] preliminaiy injunction . . . is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not ﬁxed or ﬁnal or conclusive, characterized by its for-the-time-beingness.”). This order does not hold that Defendants may not rescind the DACA program. Even if the court ultimately ﬁnds that Defendants’ stated rationale for ending the DACA program was legally deﬁcient, the ordinary remedy is for the court to remand the decision to DHS for reconsideration. On remand, DHS “might later, in the exercise of its lawful discretion, reach the same result for a different reason. This order does not require Defendants to grant any particular DACA applications or renewal requests. Restoring the DACA program to the status quo as of September 4, 2017, does not mean that every DACA recipient who requests renewal of his or her deferred action and work authorization will receive it. The DACA program identiﬁed “criteria [that] should be satisﬁed before an individual is considered for an exercise of prosecutorial discretion.” (2012 DACA Memo at 1.) It did not require immigration ofﬁcials to defer action against any individuals who met these criteria; to the contrary, the 2012 DACA Memo stated that DHS would exercise prosecutorial discretion “on an individual basis” and would not “provide any assurance that relief will be granted in all cases.” Preserving the status quo means only that Defendants must continue considering DACA applications and renewal requests, not that they must grant all such applications and requests. This order does not prevent Defendants’ from revoking individual DACA recipients’ deferred action or work authorization. Under the 2012 DACA Memo, DHS may terminate a DACA recipient’s deferred action “at any time, with or without a Notice of Intent to Terminate, at [its] discretion.” Maintaining the status quo does nothing to alter that.

In following the Twitter response to the decision, I saw this from last fall, a criticism of this judge’s comments during oral argument by Jeff Sessions during an October 2017 Heritage Foundation speech (emphasis added):

Sessions goes after Judge Nicholas Garaufis in his Heritage speech, calls his DACA comments "highly offensive" and "disrespectful." https://t.co/XQJtp3fjS4 — Mark Joseph Stern (@mjs_DC) October 26, 2017

But that brings me to a final point: how we preserve our rights. Our rights are best preserved by the structure of the Constitution the Founders established—most importantly the separation of powers. Co-equal branches of government ought to respect one another as co-equal branches. As you all know well, some judges have failed to respect our representatives and Congress and the Executive Branch. One particularly striking example was the federal judge in Brooklyn who heard argument on a challenge to the federal government’s wind down of DACA. That is a straightforward question of law. But rather than address that question, the court said the government “can’t come into court to espouse a position that is heartless.” Not unlawful, but “heartless.” With respect: it is emphatically not the province or duty of courts to say whether a policy is compassionate. That is for the people and our elected representatives to decide. The court’s role is to say what the law is. A judge’s comments on policy like this are highly offensive, and disrespectful of the Legislative and Executive Branches. Judges have the solemn responsibility to examine the law impartially. The Judiciary is not a superior or policy-setting branch. It is co-equal. Those who ignore this duty and follow their own policy views erode the rule of law and create bad precedents and, importantly, undermine the public respect necessary for the courts to function properly. This is especially problematic when district courts take the dramatic step of issuing activist nationwide injunctions—orders that block the entire United States government from enforcing a statute or a presidential policy nationwide. Scholars have not found a single example of any judge issuing this type of extreme remedy before the 1960s. But today, more and more judges are issuing these lawless nationwide injunctions and in effect single judges are making themselves super-legislators for the entire United States. We have nearly 600 federal district judges in the United States—each with the ability to issue one of these overreaching nationwide orders. That makes the need for judges to stick to the law even more important. A single judge’s decision to enjoin the entire federal government from acting is an extreme step, and too often, district courts are doing it without following the law. Exercising this awesome power because of a political disagreement is all the more unacceptable. The Constitution gives judges no right to veto a President’s actions because they disagree with him on policy grounds.

What Sessions was lamenting is the essence of the judicial resistance to Trump. Hopefully the Supreme Court will put an end to it in the travel order and DACA cases, and others.



