Will SCOTUS Hamstring the President?

The end of this year’s Supreme Court term is upon us, and the berobed sages have, as is their wont, saved the resolution of the most portentous disputes for the last day. The Nine are expected to announce rulings in cases involving, among others, the role of race in redistricting, the rights of religious parents vis-à-vis their young public schoolchildren, and the Trump administration’s effort to limit the scope of birthright citizenship. The portent of the citizenship case rests not on the merit of the dispute, as the underlying question of whether the children born here to illegals are automatically American nationals upon birth has not yet reached the court. Instead, the court is likely to weigh in on a procedural question that has in the first six months of President Trump’s second term largely hamstrung his policy agenda — the use of so-called universal injunctions by federal judges.The use of these injunctions — by which local district judges are able to make rulings that apply across the entire country — has come under withering criticism from Mr. Trump and his allies for, in effect, thwarting the policy moves he was elected to put into effect. These columns pointed to the wave of injunctions raising “concerns about the politicization of the federal bench and a kind of concerted judicial resistance to the president’s program.”That prompted Mr. Trump to ask the Nine for relief from what the White House depicts as unwarranted obstruction by the federal courts. Republicans in Congress, too, are eyeing warily these universal injunctions. Senator Grassley calls them “a favorite tool for those seeking to obstruct Mr. Trump’s agenda,” noting that “more than two-thirds of all universal injunctions issued over the past 25 years were levied” during his first term.The universal injunctions, too, appear to be a relatively novel innovation in the federal judiciary. Mr. Grassley reports there is “no clear record” of the use of the judicial tactic prior to 1963. Since then, they have become a scourge for presidents of both parties. Justice Neil Gorsuch has, our A.R. Hoffman has noted, criticized their use as “a stratagem to ‘govern the whole Nation’ from one courtroom.”Justice Clarence Thomas, in a case in 2018, Trump v. Hawaii, decried the universal injunctions as “legally and historically dubious.” Even so, defenders of the practice note that the surge in judicial scrutiny is tied to Mr. Trump’s energetic use of the executive order as a means to push ahead on policy changes that might otherwise get bogged down in a narrowly divided Congress, a point alluded to in May by Justice Brett Kavanaugh at the court.The Nine could well find that while it sympathizes with the substance of Mr. Trump’s complaint on the universal injunctions, it is a question for Congress. That’s because the Constitution grants to the legislature authority to designate, or change, the power of the federal courts on this procedural head. That grant of authority is to “constitute Tribunals inferior to the supreme Court.” It is likely to prove the most notable ruling from the bench this morning.That said, a ruling over the role of race in drawing Louisiana’s congressional map could also prove both legally and politically significant, as the case involves the boundaries of Speaker Johnson’s district. The justices, too, are expected to decide the fate of a Texas law that seeks to limit, by setting age verification requirements, the scourge of online pornography among young viewers. It’s a dispute that has raised thorny First Amendment questions.The case of the parents in Maryland who balked at their young schoolchildren being exposed to books like “Pride Puppy” and other gay-themed materials could prove a vindication for religious liberty. In another case we are watching closely, the court could help scale back the administrative state by finding that Congress wrongly delegated its tax power to bureaucrats with the “Universal Service Fund” on phone bills. On this one, we may call you back.

Will SCOTUS Hamstring the President?

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