Judicial 'Dictators': When a Single Judge Can Tell the Entire Country What to Do

WASHINGTON - Of the government's three branches, the Judiciary is the only unelected one, and at times the most powerful.  

The Obama administration faced 20 nationwide injunctions over eight years. President Trump and his administration have already been hit with nearly 40. The judges issuing such injunctions often halt Congress, as well, blocking enforcement of federal laws and policies.

Attorney General William Barr wants to stop these injunctions. In a recent op-ed for the Wall Street Journal, he wrote, "Shrewd lawyers have learned to "shop" for a sympathetic judge willing to issue such an injunction. These days, virtually every significant congressional or presidential initiative is enjoined—often within hours—threatening our democratic system and undermining the rule of law."

'Being a Judge Does Not Mean You're a Dictator or Czar'

Rep. Steve Scalise (R-LA) told CBN News it provides a judge near-total power.

The House Minority Whip stated, "Being a judge does not mean you are a dictator or a czar. You're supposed to be there interpreting the laws that are written and upholding the Constitution.  And too often we see a judge that has their own agenda, and they try to carry out whatever they want to do as opposed to what the law says."

Jeremy Dys is a lawyer fighting for religious freedom through First Liberty Institute.    

That becomes a real danger if not properly checked, because who will check the checkers?," Dys asked. "If the judges themselves are the ones who are going to decide what the Constitution says and we limit that to just one individual, that deprives 330 million Americans of the process that we're familiar with under our Constitution."

Dys warned these injunctions should frighten people of faith.

"This comes heavily into play on issues of religious liberty all over the country, where you might have one judge who would have a disagreement with how the Constitution is written or how the First Amendment has been interpreted," he explained. "But he could shut off those critical civil rights protections for the entire nation."

How the Process is Supposed to Work

The way it used to be Congress would pass a law, the president would sign it, and it would then take effect. Now if a judge steps in with a nationwide injunction to stop it, the president or lawmakers must slog their way through the entire Judiciary.

"The average case, I think, to the Supreme Court takes roughly six years to percolate up through the system," Dys noted. 

So one judge who differs with what a president decides or a Congress legislates can stymie the whole government.

As Attorney General Barr states in his September 5th Wall Street Journal op-ed, "…nationwide injunctions threaten to turn every case into an emergency for the executive and judicial branches."

Don't go to the Judiciary if You Want to be a Lawmaker

As a top lawmaker, it certainly peeves Congressman Scalise.

"It always angers me when I see these activist judges – judges who are not elected – decide, rather than interpreting the law, they want to make their own law," he fumed. "You shouldn't go to the judiciary because you want to be a lawmaker. You should run for Congress.   We're held accountable every two years for the votes we take, the bills we pass, the positions that we take."

And two men who did just that -- run for Congress -- are taking action. 

Republican  Senator Tom Cotton  and Congressman Mark Meadows have just introduced the Nationwide Injunction Abuse Prevention Act. If passed, it  would prevent lawful policy changes from being blocked by individual district court judges.

The way the Judiciary is supposed to work is local judges decide cases for the people in front of them. Then disputed local rulings go before the district or circuit courts. And if various circuits disagree with each other, the US Supreme Court decides for the whole nation.

'A Lot More Eyes on the Situation'

"That would give a lot more eyes on the situation rather than just one individual sitting in his chambers making the decision," Dys said. 

As Barr puts it, "A Supreme Court justice must convince at least four colleagues to bind the federal government nationwide, whereas a district court judge issuing a nationwide injunction needn't convince anyone."

Dys said of the usual slow march of a case up the judicial ladder, "It's designed to be slow like that on purpose so that we have time to deliberate the best understandings of what the law ought to be, to see how it actually impacts the world around us."  

"If one judge sitting by himself in his chamber can decide that law is now void for the entire nation, it sets that entire process on end," he added.  "Actually, it puts the judge above the legislature, and that's not what the Founding Fathers had in mind with the idea of separation of powers."

A Real Constitutional Crisis?

Dys had another word of warning about a nationwide injunction.

"The average Joe in the streets of Upland, Indiana needs to realize it's going to have a real impact on them if one judge sitting in his own chambers can determine that the First Amendment does or does not apply to that person and then also the rest of the country," he explained. "That can be a real constitutional crisis on our hands."

Scalise added, "These judges who are appointed for life in some cases don't think the Constitution is a firm document.  They think they can recreate it in their own view.  And that's not what the law is all about."

The Supreme Court itself might step in to do something about all of this.  Justice Clarence Thomas in the 2018 case Trump v. Hawaii labeled nationwide injunctions "legally and historically dubious" and wrote, "If federal courts continue to issue them, this Court is duty-bound to adjudicate their authority to do so."