“Judicial Restraint”

It has become comical. 

The administration of President Trump makes bold moves, often by Executive Order, to rid the country of criminal aliens, to cut bloated budgets of previously sacrosanct administrative departments, end spending taxpayer money on ludicrous DEI programs, stop the dangerous practice of staffing and promoting personnel in military units in accordance with racial, sexual, and even gender identity quotas among other initiatives.  Daily there are announcements on major policy revisions regarding how departments in the Executive Branch are to go about their business. 

However, every change engenders a court filing of overblown and exaggerated claims from a cadre of well-funded left wing law firms.  Firms who carefully forum shop which of the 600 or so unelected lower court federal judges scattered across the land would be predictably eager to stick their nose in areas where they have no business.  Judges who mindlessly halt the changes regardless of the consequences.

And these are not judges presiding over real lawsuits.  Not in the traditional sense.  

The ordinary process in a court of law is for someone who has a grievance or complaint to file a lawsuit.  The charging papers contain a list of allegations and a prayer for damages to make the plaintiff whole.  The person or entity sued answers the complaint with allegations of their own and even, on occasion, a cross complaint. Then the process of discovery occurs where the parties exchange information and evidence, hearings are held to narrow down the scope of the complaint, settlement discussions are had and if the parties can’t come to an agreement a jury is selected or waived, and the evidence is presented by means of witnesses who are sworn in and cross-examined.  A verdict is reached and then a remedy fashioned usually in the form of money damages. That is the ordinary procedure.  

But with these designed to stop the President’s executive orders, there is no intent to have a trial with witnesses and evidence presented before an impartial finder of fact like a jury. The goal is to stop the actions of the Executive Branch by means of an injunction.  In other words, the President is not to act unless some court somewhere says it is o.k.  This is not ordinary. The issuance of injunctions in law is known as an extraordinary remedy.  Extraordinary too is the number of them being issued.  It has turned into a virtual orgy of prior restraint, prohibiting acts or ordering acts, without a trial, without a real testing of evidence.  

Injunctions being, in law, an extraordinary remedy, they are supposed to be rare, rare because they are a prior restraint on actions, not a remedy for wrongful actions.  And even more rare is the use of preliminary injunctions.  What has developed is an epidemic of preliminary injunctions leaving us being governed by a cadre of unelected lower court federal judges, who there is no reason to believe have a minimum of competence in the area of management and administrative skills.

If, indeed, as many pundits like to opine, there is a “Constitutional Crisis” involving the Separation of Powers, it has been brought on by the judiciary.  

Multiple federal courts are issuing dozens of injunctions and applying them not just to the parities before them, but across the land, universally.  And most unfortunate of all there is the perception of a political bias behind the issuance.  The injunctions don’t seem to be issued after a thorough, impartial hearing by a careful and thoughtful magistrate.  Instead, they are perceived to be orders handed down by partisan activists who have chosen sides before any party appears before them.  

What has happened to the judiciary that these perceptions can be so widespread?

It does no good to look back at how brutally political Senate confirmation hearings have become.  That ship has sailed.  But one can’t help but wonder that those hearings and the blatantly political bias of many senators, abetted by law school professors in inculcating the “right” political thought in their students, have led to this point. 

One way of regaining respect for the institution is to return to a few time-honored principles. 

Like “Judicial Restraint.”

Judicial Restraint is a legal concept, once regularly taught in Constitutional Law classes, and discussed in case opinions by the more prudent members of the appellate bench. It’s a concept which one rarely hears mentioned nowadays.  It’s too bad because it is needed.  

Judicial Restraint is a principle fashioned by the judiciary over the centuries, to ensure the judicial branch does not leave its moorings and cross over into the purview of the other two branches of government.  The principle is there because the judiciary itself recognized that when they approach the cliff where they depart from interpreting the law into making the law, it’s dangerous.  They are crossing into an area the Framers of the Constitution wanted them to stay out of.  The Framers intentionally provided that the Judicial Branch would have no army, have no purse strings, have no police forces.  In Hamilton’s view expressed in the Federalist Papers, were to be the weakest branch of government and would have to rely on the good will and support of the public.  When they go too far afield, when they tempt fate by encroaching on an area reserved to the Executive and Legislative branches, they invite a response such as that President Andrew Jackson who once said of a ruling by the Supreme Court presided over by Chief Justice Marshall, “John Marshall has made his decision, now let him enforce it.” What are they to do, if they scorn a President whom they must rely on to enforce their orders?  What if he refuses?  Judges are supposed to be referees, not players.  It is dangerous for them to forget that important fact.

So, what is Judicial Restraint?

In Washington State Grange v. Washington State Republican Party decided in 2008, The United States Supreme Court in discussing Judicial Restraint ruled speculation was not proper basis to strike down an election law as facially violative of political parties’ associational rights.  Exercising judicial restraint in a facial challenge, the court said, “frees the Court not only from unnecessary pronouncements on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.”  

They elaborated, “… Facial challenges also run contrary to the fundamental principle of JUDICIAL RESTRAINT that courts should neither “anticipate a question of constitutional law in advance of the NECESSITY of deciding it” nor “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Finally the Court reiterated, “…Facial challenges to constitutionality of law are disfavored for several reasons, including that such challenges OFTEN REST ON SPECULATION, and that they also run contrary to fundamental principle of JUDICIAL RESTRAINT, under which courts SHOULD NEITHER anticipate question of constitutional law in advance of necessity of deciding it nor formulate rules of constitutional law broader than is required by precise facts to which it is to be applied.

The Constitutions does not empower courts to decide on their own what the law should be.  The are to interpret the law, not make it.  There are express limits on their jurisdiction.

Article III of the Constitution limits the jurisdictions of federal courts to “cases and controversies.”  An actual dispute must exist.  There must be an injury to the party before the court.  Advisory opinions are not to be issued. The framers fashioned this limit on the authority of the judiciary to prevent them from acting as a super-legislature or super-executive, voiding the laws and actions of the other branches.  It is there to preserve the integrity of the Separation of Powers. So many of the injunction being issued are “anticipatory” before any action has been taken, before a “case or controversy” legally exists.

Ripeness and Mootness are further limits on what cases a court may decide.  If a suit is filed before a harm has occurred or before the threat of harm Is imminent, there is no genuine dispute, and the court has no jurisdiction.  The Court stated in the 1947 case of United Mine Workers v Mitchell, “a HYPOTHETICAL THREAT IS NOT ENOUGH. We can only speculate as to the kinds of political activities the appellants desire to engage in or as to the contents of their proposed public statements.  Should the courts hear such cases, they would become the organ of political theories.”  Similarly, a case may be filed too late to be heard by a court. It is Moot. For example, in 1971 a man sued when he was denied admission to a law school.  He won at trial and was in the third year of school by time it reached the Supreme Court where the appeal was dismissed as being moot.

STANDING of the parties is also a legal prerequisite for a court to hear a case.  It is not in the court’s jurisdiction to act unless the party before it has suffered an injury in fact, the injury was caused by the challenged action, and a favorable decision will redress the injuries suffered. 

Of supreme importance to many of the cases now being improvidently decided by the lower federal courts is the Political Question Doctrine.  It is one of the most important limitations upon judicial power in constitutional law. Decisions of the Supreme Court have long held that certain types of cases cannot be dealt with by the courts because of their political nature.  In such instances, it is the political branches, the Executive and the Legislative, that are better equipped to deal with political issues than a court of law.

In Baker v Carr decided in 1962 Justice Brennan (a democrat appointed by President Eisenhower, yes, such things used to happen) wrote for the court that the presence of any of the following factors suggests a Political Question which is best left to the discretion of the Political Branches and NOT the judiciary:

1. The case involves a power delegated by the Constitution to the executive or legislative branches.  Like immigration and foreign policy.  Like being Commander in Chief of the military.
2. There are no manageable standards for resolving the case.  This covers most budgetary issues and spending priorities. 
3. Impossible to decide the case without an initial policy determination regarding non- judicial discretion.   Like the use of DEI. The number of personnel necessary to run a department.  Like the allocation of public resources to activities that the President has determined are inimical to American interests. 
4. To undertake resolution would express lack of respect for the other branches of government.  Like interfering with every act and decision of a duly elected President carrying out what he promised to do if elected.
5. There is a need to adhere to a political decision already made.  Yes.  True.  An election was held.  A choice was made.
6. There is potential embarrassment from conflicting pronouncements by various departments on one question.  How embarrassing it is to our system of government that one low level federal judge with an undisguised disdain and animus toward a sitting President goes out of his way to threaten, cajole and coerce the representatives of the Executive Branch in order to bend them to his or her will.

One thing is clear:  Foreign affairs, national security and the Military are matters that are the province of the Political Branches and not generally justiciable in a court of law.  For example, in a 1939 case the Supreme Court stated, “The President as both Commander in Chief and as the Nation’s organ for foreign affairs,” has intelligence information not available to the world at large OR THE COURTS”.  And “it would be intolerable” for courts to nullify actions of the Executive in such situations. “Nor can it require courts sit in camera in order to be taken into executive confidences.  . . . the very nature of executive decisions are WHOLLY confided by our constitution to the political departments of government.” Consider the President’s acts in revoking security clearances for certain law firms.  It is not for the courts to decide matters of national security.  This is not an area for Judicial interference.

And speaking of factor number six above, of supreme embarrassment is the aspect of lone federal judges, clueless at managing the efficiency of even their own court dockets, much less that of a government agency, who can’t wait to stop the moves of a Presidential administration, in their tracts.  It is humiliating to the country and the legal system to expect a Presidential administration to justify to these minor functionaries their every move before implementing a change. Even as to the decisions made by the Department of defense.   

None of this is any of these judges’ business.  If someone is truly harmed and has a valid legal claim, they can file a lawsuit and press the matter in court.  And have their claims actually tested.  But that isn’t happening.  Now prior restraint is all the fashion for federal judges.  It is not what the courts were put in place to do.  Judges are not policy makers, they are not managers, not accountants, not personnel chiefs, and most certainly not Senate confirmed cabinet secretaries heading vast departments of the government.  

It was not always so.  Once upon a time, not so long-ago Judicial Restraint was in order. 

This discrete area of law, federal courts, of late, have chosen to ignore.  

I doubt it’s out of ignorance.  

One suspects it may be out of arrogance and vaunted ambition. 

Yes, well, it is becoming Comical.  Indeed.  But, good lord, man, it’s not supposed to be funny. 

For other writings by Phil Cline, visit philcline.com

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