Josh Hawley Brings The Receipts To Call Out Sharp Uptick In Universal Injunctions Under Trump

yesterday

At today's Senate Judiciary Committee hearing, Sen. Josh Hawley (R-MO) spoke to witnesses about the use of universal injunctions by judges.

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Transcript

00:00Thank you, Senator Hirono. Senator Hawley. Thank you very much, Madam Chair. Thanks to all of the

00:04witnesses for being here. Let's just start by talking about the need to be here today and the

00:09fact that what we are seeing happen in district courts is, historically speaking, really

00:13unprecedented until recent years and out of, completely out of sync with our constitutional

00:19system. You alluded to this, Mr. Panuccio, the way that our founders designed our constitutional

00:23system. Mr. Bray, let me just, Professor Bray, let me just start with you. When, according to

00:28your scholarship, when's the first time that a district court issued a universal, non-party

00:32injunction of the kind that we're talking about today? I think the first one is 1963. There is

00:38historical debate about when they started in the 20th century, but I think that would be the first

00:42one. But they certainly are not traditional inequity before then, and they were a peripheral

00:47backwater until 2015. So 1963, so the republic is 200 years old, at most, by the time we get the

00:56first district court issuing a universal injunction, binding parties who were not before it,

01:01and even then, as you just alluded to, then there's this period of quiet where they're really

01:07not issued until the 21st century, until the 2018s. Is that correct? That's correct. And then we see

01:15this explosion, as you can see in the chart behind me, in the Bush years, Bush 43, we have six

01:21universal injunctions binding non-parties. In the Obama years, we have 12. You referenced one of

01:26those cases, Professor Bray, in your opening statement, your written statement. And then under

01:30Trump in his first administration, 64 universal injunctions binding non-parties, 14 under Biden,

01:39and now 15 under the second Trump administration in one month alone. Mr. Panuccio, let me just come

01:45to you. Tell us why this pattern that we're seeing here, and there's a clear partisan valence to it,

01:52but there's even more of a recency valence. I mean, this is something that just did not happen

01:56until very, very recently. Why is this so distortive to our federal system?

02:01Well, thank you, Senator. It's distortive because it has judges operating outside their

02:06constitutional role. They are exerting policymaking power over the whole country. And the issue is

02:12this. We are a republic. Those who get to exercise policymaking power, like yourself, like this body,

02:18have to face the electorate every six years, two years, four years, whatever it is.

02:23Judges do not. We gave them life tenure so that they could be insulated and make decisions without

02:28fear or favor. But we limited the judicial power to cases and controversies, just the party before

02:35them. And in my written testimony, I note that Hamilton said it's the least dangerous branch,

02:39but he had a caveat. Only if they exercise the judicial power. If they range beyond it,

02:44then it can be the most dangerous branch. And the public's confidence will be undermined

02:48because they have no chance to get rid of these judges because they have life tenure.

02:51They don't want to be ruled by kings. They want to be ruled in a republic where they have a vote.

02:55And here's my concern is that this pattern of, I think, abuse, this pattern of out-of-control

03:01behavior that we're seeing that's illustrated on the graph that's behind me is not decelerating,

03:05it's accelerating. And now we're seeing it not just with injunctive relief, we're seeing it in

03:10other orders, other procedural forms that are deliberately designed to insulate the judges,

03:16the district courts from appellate review, temporary restraining orders. You mentioned

03:18this, Mr. Panuccio. All of a sudden, we've seen a huge uptick in just the last few weeks

03:24in district courts issuing what looks a heck of a lot like a nationwide non-party injunction,

03:30but it's styled as a temporary restraining order. Now, Mr. Panuccio, if I were a judge

03:35who wanted to insulate myself from review, why might I choose the temporary restraining order

03:39vehicle to do it? I mean, why is this happening? Because, Senator, under current precedent,

03:44TROs, temporary restraining orders, are not immediately reviewable, unlike a preliminary

03:48injunction. So if you are a judge who believes a policy is unlawful and you want to exert power

03:54nationwide and you don't want anyone to review, the voters certainly won't, the only people who

03:58can do it are appellate judges. So you issue a TRO, then you extend it for another two weeks,

04:02and for at least a month, you can't be touched by the appellate courts. And has this happened

04:06in the last few weeks? It has been happening. We've seen straying beyond the typical preliminary

04:11injunction to TROs and other what are being called administrative stays, which

04:16also appear to be unreviewable. So here, I think, is the issue that's before us. In one sense,

04:21it's entirely appropriate that we're here today, and it's entirely predictable given the urgency

04:25of the situation. In another sense, it's sort of a wonder we need to have a hearing on this at all,

04:29because my Democrat colleagues for the last few years have been decrying the very behavior that

04:34we're talking about now. And I think, as you pointed out, Mr. Panuccio, we've had multiple

04:40members of the last administration, for example, Joe Biden's solicitor general,

04:44Elizabeth Praliger, she herself said in court, by the way, this wasn't a straight comment to

04:48the press, this is her at the Supreme Court, a court of equity may grant relief only to the

04:53parties before it. District courts violate this principle by issuing universal injunctions.

04:59Elena Kagan, Justice Kagan, it can't be right that one district court judge stop a nationwide

05:05policy in its tracks and leave it stopped for years while it goes through what is otherwise

05:10the normal process. I would just say to my Democrat colleagues, it shouldn't be,

05:14to quote the chairman, that one thing, or to quote the ranking member, that it's one rule

05:18for Democrats, it's one full rule for Republicans. Let's make it one rule across the board that no

05:23matter who appoints you, a judge can only bind parties who are before her or him. There are no

05:29nationwide non-party injunctions. Let's make that the standard and let's return these courts

05:35to the proper functioning of our constitutional system. Thank you, Senator Hawley. You stuck to

05:41that time. I'm so proud of you, Senator Schiff.

Josh Hawley Brings The Receipts To Call Out Sharp Uptick In Universal Injunctions Under Trump

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