tv AG William Barr Speaks to American Law Institute on Nationwide Injunctions CSPAN June 11, 2019 5:33am-5:50am EDT
attorney general william barr not spoken publicly about the house judiciary efforts to get a sub enough of the mueller report. but he did give a speech about injunctions this 25-minute -- this is at a dinner of the american law institute. >> the department's best entiree that during the 20th century, 27 nationwide injunctions were issued starting in 1963. since president trump took office, federal courts have injunctionstionwide against the executive branch. that is more than one a month.
that the only case litigated on the merits, the travel ban challenge ended with the policy being upheld. debate theot to merits on any policy, it is to discuss the use of injunctions, aside from the particular oddities of the daca case, i want to highlight five ways in which nationwide injunctions are inconsistent with our legal system. first, nationwide injunctions violate the separation of powers. arnold gould three -- article three in dallas federal courts with the power to look at controversies. that means concrete disputes among individual parties. justiceorlds of chief
marshall, the province of the court is to decide on the rights of individuals, not to inquire how the executive or executive officers perform their duties. partlimitation grows in out of the english system of equity, which limited relief and giving the case to the parties before the court. by the first restatement of judgments published in 1942, it was a system of personal justice as wrote,or samuel gray this means that injunction would restrain a defendant's action. this tradition is not just a matter of inertia, it is baked investingle three's of federal courts the power to stop federal controversies.
thejustice scalia put it, " judicial power is the power to adjudicate with conclusive effect disputed government personsagainst private and disputed claims by private persons against government or other private persons." justice frankfurt described as " providing the outlines of what were, and the founding generation, the familiar operations of the english judicial system." consistent with that understanding, federal courts have not issued any nationwide injunctions in the first 175 years of the republic. in 1963. case was one that absence of nationwide injunctions is not reflect an unwillingness to issue injunctions. 1937, attorney general
cummings issued a report stating that the lower courts have issued thousands of inductions -- injunctions. in keeping with the english tradition, they found the government only with respect to the parties in those cases. the government continue to enforce new deal programs against others. even then, the subsequent therney general described reaction and the use of injunctions to challenge new deal programs as reckless, partisan, and irresponsible. i could only imagine what he would think today. the novel approach taken by some districts over the past few years reflects a departure, not only from the historical limitations, but from our traditional understanding of the role of courts. courts issuing a -- nationwide
injunctions talk about striking down a law. we have all used the term as a shorthand, but courts do not have the authority to strike down laws. in our system they resolve disputes between parties, and as the supreme court explained, a court may enjoy -- enjoin not the execution, the acts. commentator explained, they cannot issue a writ striking down the statue from the books. this goes to the heart of the problem. the courts at the founding understood their role as addressing the rights of the parties. , orhey disregarded a statue executive policy in the name of judicial review, it was only because they were bound to apply the higher law of the constitution. of a judgeact
issuing a nationwide injunction acts as a one man or one woman council of revision. , ofsecond aspect of it nationwide injunctions, that is inconsistent with our american legal system is that it inflates the role of the individual court judge within the judicial structure. the constitution empowers congress to create lower aderholt courts, and in designing a system of 93 judicial systems, congress set geographical limits on jurisdiction. in our system, district court judges do not bind other , even judges in the same district. virtues, ithas many creates checks and balances and encourages what judge howard -- calledleventhal
percolation, the process in which many lower coat -- courts offer their opinion before higher courts resolve. this is the very in body meant of our common -- embodiment of our common law tradition. they -- legal principles involved -- evolve from a scattershot of precedent gathered through many judges working through legal issues. when a nationwide injunction issues against the government, it short-circuits the process, because such injunctions prevent enforcement against anyone, anywhere and overshadow related litigation. prevailshe government in every other case, a nationwide injunction still prevents all enforcement of the law. it gives a single judge the power to render irrelevant the
decision of every other jurors diction in -- jurisdiction in the country. this is not hypothetical. in litigation over the policy of transgender military service, the government won a big three in the d.c. circuit judge and yet, because district court had enjoyed a policy nationwide, the decision has no practical effect. the government could not implement prop -- policy until the supreme court backed it. that is not the only example. the ninth circuit ordered ether an on wh injunction from pennsylvania district court mooted the appeal within the night circus. eth circuit. this is not compatible with our judicial system. it not only allows the courts to
too much power, but also asymmetrically. when a court denies a nationwide injunction, the decision does not affect other cases. when a court grants it, it renders all other litigation irrelevant. think about what this means for the government, when congress patches -- passes a statute or the president issues a policy that is challenged, the government must run the table. the challenges have to find -- challengers have to find one district court judge willing to render a nationwide injunction. one judge can cancel the policy. even the chief justice of the united states must commence at least four other justices to bind the federal government. injunctionsnwide undermine confidence in the judiciary. when a single judge can freeze
policies, it is not hard to predict what plaintiffs will do. they shop until the statute drops." they have flooded texas judicial courts during the obama administration while similar requests have landed in california and new york. assuming all good faith, the a pre-and's -- the appearance of shopping is inescapable and damaging to the idea of a impartial judiciary. includeequences could politicizing the district court confirmation process in ways similar to what we have seen the courts of appeals and supreme court, and none of us should want that to happen. create unnecessary emergencies. the nationwide can -- injunction constrains a nationwide policy
in the justice department has no choice but to seek emergency relief. no one benefits from that. the alternative is for a government to wait months or told -- or years for appeals run their course before the executive may implement its policies. nationwide injunctions conflict with the litigation system that congress has chosen as the medication -- the mechanize -- the method. preventde injunctions conformity. we value uniformity in our legal system but also have ways to achieve it, usually by review -- by review through the supreme court. court issues ae nationwide ruling we have more confidence that it is due to the
proceeding efforts in the lower courts. nationwide injunctions turn the process onto its head and treat the first case like it is the last case. threeall, why do we have judges on the intermediary appellate level and nine justices on the supreme court? it is because of the significance of the last decision adopting a uniform rule for the country. congress and the federal rules committee have also designed mechanisms for aggregate negation -- aggregate litigation, none include nationwide injunctions. consider federal rules 23 which allows plaintiffs to bring action on behalf of unnamed parties, but they must meet a series of procedural requirements including that they share typical claims and the main plaintiffs will adequately
represent the members of the class. the rules provide for absent class members to receive notice of the action and the opportunity to opt out. they are generally bound by the district court's judgment and precluded from litigating in different courts. nationwide injunctions do not work that way. began, i raised the problems of nationwide injunctions not -- as a matter not of partisanship, but rule of law. a policyasily imagine freezing under nationwide injunctions on years on end. imagine if a new administration were to abandon a zero-tolerance policy only to see a district court order it back in place. one can draw up countless other scenarios. i do not to see any of them. nationwide injunctions undermine
the democratic process, depart from our history, violate constitutional principles and impede sound judicial administration all at the cost of public confidence as a political decision measures -- makers apply law. the justice department will continue to oppose nationwide injunctions as we have across administrations. voicesyou will make your heard on this issue too. in a time of differences on so many legal and policy issues, this is one area where i hope lawyers and citizens can agree. thank you for your invitation to speak with you tonight, and for all you do for the legal profession. [applause] [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its
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be sure to watch "washington journal," live at 7:00 eastern this morning. join the discussion. debates ase resolution today giving the judiciary committee approval sue attorney general william barr, and don mcgann in federal court to compel them to provide congress with information related to the molar report investigation -- mueller report. it also allows other subcommittees to sue trump officials for documents as long as they get approval from a bipartisan house committee. watch live coverage starting at noon on c-span. andh any time on c-span.org for free on the app. >> the house rules committee met monday to consider the rules for debate on the resolution authorizing the house judiciary
committee chair to take legal action against attorney general mcgahn. don they offered an amendment to postpone consideration, but the amendment failed. rules committee voted along party lines to send the measure to the house floor for debate. this is over an hour. >> are we ready? [chatter] >> all right. ready? the rules committee will come to order. this is really a sad day. we are here today because the president of the united states has shown an unprecedented and complete d