Attorney General Jeff Sessions on Saturday railed against federal judges for impeding President Donald Trump's national agenda, telling students at a conservative gathering that a handful of judges are making themselves "super legislators" by authoring sweeping decisions in the heat of legal fights.
"In truth, this is a question of raw power — of who gets to decide the policy questions facing America: our elected representatives, our elected president or unelected lifetime-appointed federal judges," Sessions told the Federalist Society's 2018 National Student Symposium at the Georgetown University Law Center in Washington.
On topics like Trump's proposed travel ban and the ending of an Obama-era immigration program, Sessions complained that a single federal judge is able to issue a nationwide ruling that stops the administration in its tracks. Known as a nationwide injunction, such a ruling applies beyond the particular people involved in a case and remains in force even when another federal court sides with the administration. Such a split occurred this past week when a federal judge in Maryland upheld Trump's decision to end Deferred Action for Childhood Arrivals, but because of an earlier injunction from federal judges in California and New York, parts of the program remain in place.
Trump is not the first president to face such legal hurdles, which Sessions said is not a partisan issue since it affected former President Barrack Obama, too.
A former conservative stalwart in the Senate, the attorney general acknowledged that some Republicans sought similar legal battles on friendly turf, in states like Texas, during Obama's time in office, in a process known as forum shopping. But with Trump now in the White House, it is liberals who are hoping for advantages in places like California and Hawaii. The Obama administration failed to convince the Louisiana-based Fifth Circuit Court of Appeals to strike down an injunction against DACA with a similar argument.
The Supreme Court has not weighed in definitely on the topic of nationwide injunctions; instead justices have ruled on the particulars of a specific case. But Sessions is optimistic that the highest court in the land will soon issue a brush back to would-be legal resisters. A federal appeals court can overturn or limit the scope of an injunction.
"We are hopeful that the Supreme Court will soon send a clear message to the lower courts that injunctions ought to be limited to the parties of the case," he said.