President Donald Trump faces a bevy of district court judges issuing restraining orders and injunctions blocking his executive actions, and Josh Hammer suggests the president take a leaf out of Abraham Lincoln’s book on the issue.
Trump has responded to the orders with calls for Congress to impeach lower court judges or restrain them in other ways, and observers on the Left have claimed Trump’s actions are creating a constitutional crisis. Chief Justice John Roberts publicly chided Trump over the judicial impeachment call.
Hogwash, says Hammer, a lawyer who clerked on the U.S. Court of Appeals for the 5th Circuit.
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“Frankly, to the extent that there is a constitutional crisis right now, it’s not coming from the people who they think it’s coming from,” Hammer told The Daily Signal. “There is a genuine separation-of-powers crisis at the moment and it’s coming from these overweening district court judges who are trying to bring the entirety of the federal government to a halt.”
Hammer—who joined The Daily Signal to discuss his new book “Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West”—counted between 65 and 70 so-called nationwide injunctions against Trump during his first administration. “That’s more than the first 44 presidents of the United States combined.”
He attributed the increase to “a very simple reason, which is that there was no such thing as a so-called nationwide injunction until the late 1960s.”
Hammer called the practice of nationwide injunctions “made up.”
“There is no such thing as a legitimate exercise of the judicial power of which the Article 3 vesting clause speaks that allows you to actually bind everyone in the country—that’s literally just not how it works,” he explained.
Judges have the ability to issue an injunction to prevent one party in a legal case from harming the other party in the legal case for a limited period of time, but that should not apply to federal policy, the lawyer said.
He pointed to one specific example in history that he said undermines the “judicial supremacist myth that we are currently living in.”
Hammer pointed to Dred Scott v. Sandford, the infamous 1857 case in which the Supreme Court held that “black people were not [and] cannot be citizens.”
“Lincoln says, time and time again in his debates with Stephen Douglas, ‘If I become a public servant, … I will respect this judgment as it pertains to the parties to the suit, Mr. Scott, but beyond that, I’m not going to lift a finger to do that,'” Hammer summarized. “And, sure enough, when he was president, Abraham Lincoln issued passports to blacks in the Western territory of the U.S., in direct defiance, actually, of the Dred Scott case.”
The lawyer said the notion that judges have “the ability to actually settle the law of the land for all of us there, that’s just not our system of governance.”
“At some point, [the Supreme Court] is going to have to take up the question—ideally—as to whether or not these nationwide injunctions exceed the legitimate boundaries of the judicial power of Article 3,” Hammer added. “Hint, hint, wink wink, they do.”
He suggested that Congress could legislate the abolition of nationwide injunctions “tomorrow.” Sen. Mike Lee, R-Utah, filed a bill Monday to limit the practice.
Hammer concluded by noting that Trump does not represent a threat to the Constitution, but his Department of Justice is arguably attempting to restore it:
For all the rhetoric that we hear about Donald Trump being a unique historical threat—‘He’s a dictator, he’s a fascist, he hates the Constitution, he’s this, he’s that’—look at the actual lawsuits that are playing out now [and] the actual legal positions that his DOJ is taking, basically day in and day out, when it comes to restoring a proper conception of the judicial power.
?LINCOLN'S RESPONSE TO JUDICIAL OVERREACH
President Trump should learn from Abraham Lincoln's response to judicial overreach, @josh_hammer tells me.
“There is a genuine separation-of-powers crisis at the moment and it’s coming from these overweening district court judges… pic.twitter.com/qXAAcfYOVf
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