God bless U.S. Representative Darell Issa for introducing H.R. 1526, the No Rogue Rulings Act. It will address the burgeoning problem of federal trial judges issuing universal (nationwide) injunctions. But, it would not be necessary if the U.S. Supreme Court and the Executive branch had done what the founding fathers had expected.
A quick primer: The injunctive relief attacked in the Bill is considered “equitable relief.” Equity asks what would be just when a determined wrong can’t be remedied by monetary damages
For example, I start parking in your driveway. You sue me for trespass. Money damages—essentially me paying you “rent” for the times I used your driveway—does not remedy your problem if I keep parking there. So, equitable relief is awarded. The judge issues an injunction prohibiting me from parking in your driveway anymore.
Rep. Issa’s legislation would address situations in which a hypothetical Gravy Train Charity sues the federal government over having its USAID grant eliminated or Tim Terrorist sues to prevent his deportation. Each alleges the federal government is violating some federal law or the U.S. Constitution.
Assume a federal trial judges decides the complainant is correct. In that case, the court enters an injunctive order that, if enforced, would prevent the action complained of. That decision can be appealed.
But these judges are extending the injunction (prohibition) against the government beyond the parties before the court to prevent the federal government from taking similar action against anyone! Now everything grinds to a halt during the appeal, not just the the actions against Gravy Train and Tim Terrorist.
The proposed legislation would prohibit a federal trial judge from doing that.
Neglect by the U.S. Supreme Court
The U.S. Supreme Court should have squashed these universal injunctions a long time ago. On January 27, 2020, U.S. Supreme Court Justice Neil Gorsuch addressed this problem in a case involving the Department of Homeland Security:
[W]hen a court order[s] the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III. (Emphasis supplied).
Allow me, as a lawyer, to summarily interpret the last sentence: These injunctions are outside the constitutional powers of the judicial branch. They are unconstitutional orders.
Then, the Justice added, “It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice.” It has not done so. Through the high Court’s neglect, too many federal judges continue to exercise unconstitutional powers.
The Impotence of the Judicial Branch.
This point is a bit tricker, so let me begin with a quote from the dissent of U.S. Supreme Court Justice Antonin Scalia in the Court’s decision holding that the laws in Kentucky, Ohio, and Michigan limiting marriage licenses to a male and female couples was unconstitutional, Obergefell v. Hodges (2015). He addressed how a Supreme Court judgment like that would be carried out, that is, “executed”:
The Judiciary is the "least dangerous" of the federal branches because it has "neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm" and the States, "even for the efficacy of its judgments.”
In other words, the federal judicial branch has no enforcement powers of its own! None. Zip. Zero. Nada.
Scalia added:
With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the "reasoned judgment" of a bare majority of this Court—we move one step closer to being reminded of our impotence.
That kind of reminder from the executive branch is exactly what the Founding Fathers thought would happen, as I’ll next explain.
Because federal courts are impotent to carry out their orders, Congress, by statute, created the U.S. Marshall’s service. Congress gave its employees authority to carry out federal court orders. But the Marshalls’ authority is under the jurisdiction of the U.S. Department of Justice, which is under the authority of the Executive Branch.
That’s why Scalia rightly said the courts “must ultimately depend on “executive arm.” We only have nationwide district court injunctions against the federal government because the executive branch is either ignorant of or has ignored its prerogative to say, “Your order is unconstitutional and unlawful, and we aren’t going to enforce it or comply with it.” That’s what it means to be as an equal and independent branch of the federal government.
Moreover, a solitary Marshall, tasked with carrying out an order he or she thought unlawful, could do refuse to do so. That Marshall’s superiors might, after giving his or her reasons some thought, agree. Alternatively, they might fire him. But the point is this: The Marshall is not an employee of the judge or the judiciary!
A Marshal or the Marshall service as a whole refusing to carry out a judge’s order is similar to the “doctrine of the lesser magistrate,” an official who stands against unlawful orders by a higher official. It is propounded in the Magdeburg Confession of 1550. In our case, this precept is brought into the structural separation of powers in our Constitution, meaning each branch is equal and can use its power to check the others.
What we might think sounds like chaos helped bring about the liberty that founding fathers like Patrick Henry preferred over life under tyranny, whether monarchial, parliamentary, or judicial.
Our founding father’s and the courageous Christians before them gave us civil liberty under God. (For more about this, see my book, Recovering the Constitution-Using the Ninth Amendment to Restore Civil Liberty.
Rep. Issa’s bill will probably never be approved by the Senate. But, we really don’t need a new law to stop what federal judges are doing. What we need is to remember two truths. First, the Lord Jesus Christ is reigning over what might be consider a call to chaos. Second, He is bringing about true Christian liberty for all the citizens of His holy nation who live in America.
What is needed is less ignorance and neglect, and a lot more faith-born courage in the Lord Jesus Christ to execute God’s covenant promises to His Son and His people.
