Nationwide Injunctions Speak to Judiciary’s Growing Power, Barr Says


WASHINGTON — Attorney General William P. Barr said on Tuesday that district court judges who have put a stop to dozens of President Trump’s policies illustrate the extent to which the judiciary has amassed power far beyond its constitutional authority rather than how the administration has violated the law.

“Some say this proves that the Trump administration is lawless,” Mr. Barr said in a speech on Tuesday evening to the American Law Institute. “Not surprisingly, I disagree.”

Pointing to the broad use of nationwide injunctions, in which local cases are used to block nationwide policies, Mr. Barr said that the courts have undermined executive authority. The injunctions have also thrust the judicial branch into the political process and encouraged plaintiffs with strong political leanings to bring lawsuits just to frustrate the work of the president, Congress and even other district judges, he said.

“If we consider how things ought to work, it is perverse,” Mr. Barr said. “Rather than an orderly pattern of litigation in which the government loses some cases and wins others, with issues percolating their way through the appellate courts, we have an interdistrict battle fought with all-or-nothing injunctions.”

Mr. Barr’s comments were in keeping with his staunch support of Mr. Trump. He has declared that the special counsel’s report found no wrongdoing by the president and that it was reasonable for Mr. Trump to believe that he was wrongfully investigated. Democrats and Republicans have alike have questioned those characterizations, and the report itself painted a more damning portrait of the president than Mr. Barr has suggested.

Mr. Barr also supported Mr. Trump’s opposition to the Affordable Care Act, choosing to no longer defend the law in a federal court case in Texas.

But Mr. Barr’s remarks echoed critics from both parties who have denounced the use of nationwide injunctions to push back on executive and legislative decisions. Critics have long said that such injunctions allow federal judges to overreach beyond their geographically prescribed domains and that they undermine the idea that the judiciary is the impartial arbiter of American democracy.

Nationwide injunctions were scarcely used during the 20th century, but during President Barack Obama’s second term, the tactic gained popularity as a way to push back on perceived executive overreach.

Republican state attorneys general brought lawsuits to sympathetic conservative district courts, often in Texas, that ultimately blocked several of Mr. Obama’s initiatives, including overtime pay and rights for transgender citizens.

Since Mr. Trump took office, judges in California, Hawaii and other more liberal states have ramped up the use of nationwide injunctions, issuing 37 of them against the executive branch, or about more than one a month.

Those judges pushed back on many of Mr. Trump’s key policies, including his immigration order. The federal courts also issued a nationwide injunction on Mr. Trump’s travel ban, which the Supreme Court ultimately upheld.

And district court judges in California and New York have used such injunctions to block Mr. Trump’s order to wind down the Deferred Action for Childhood Arrival program, known as DACA, which temporarily shields from deportation young people who illegally entered the country as children.

Although his stated aim was not “to debate the merits of any particular policy,” Mr. Barr said that “no one seriously contends that DACA is required by law.”

(Such partisan swipes at the courts did not appear to please some members of the audience — only about a half gave him a standing ovation after his speech.)

While legal scholars have debated the legality of many of Mr. Trump’s decisions and actions, they have also expressed concern about the use of nationwide injunctions. Their rampant use, the scholars say, has transformed the relationship among the three branches of government, encouraged litigation for the sake of achieving those injunctions and politicized the judicial branch.

Mr. Barr echoed those fears on Tuesday.

He argued that the judicial branch has become more powerful as it has become more willing to review executive action and as judges have become more willing to use nationwide injunctions to override lawmakers.

“Nationwide injunctions undermine the democratic process, depart from history and tradition, violate constitutional principles, and impede sound judicial administration, all at the cost of public confidence in our institutions and particularly in our courts as apolitical decision makers,” Mr. Barr said.

He emphasized that the separation of powers, rather than the granting of certain rights, protected the United States from tyranny. “As Justice Scalia colorfully quipped, ‘Every banana republic has a bill of rights,’” Mr. Barr said.

While Mr. Barr covered the sort of serious topic that finds its best audience in a ballroom filled with lawyers, he cracked the occasional joke, to the crowd’s delight.

He may have been attorney general for about 90 days, he said, “but it feels like a lot longer,” a nod to the withering criticism he has endured for his defense of the president over the special counsel’s report.

And Mr. Barr noted that he upstaged his daughter’s wedding, a day before she was to marry, when Mr. Trump announced he would nominate him as attorney general.

“Just before the Barr name is going to be dragged through the mud, you’re changing your name,” he said he told her.


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