Attorney General Jeff Sessions has been called out for a double standard on the matter of nationwide injunctions, particularly on his support for them when they affected Obama Administration policies and his condemnation of them when they affected the Trump Administration’s policies.
As BuzzFeed News reported on Friday, Sessions has time and again reacted to federal judges blocking Trump Administration policies on anything from travel bans to the defunding of sanctuary cities by saying these were ideological rulings. The words “extreme,” “unconstitutional” and “threat” were some of the words he used in his responses.
One interesting nugget from the BuzzFeed report is that at least one federal judge has specifically called Sessions out for saying things like this when there is a ruling against him or his party. In other words, Sessions isn’t contesting judges’ rulings on injunctions based on them being improper in a legal sense, but because they are activist judges.
Consider this from an April 19 7th Circuit Court of Appeals ruling by George H.W. Bush appointee Judge Ilana Rovner.
In it, she affirmed an injunction in favor of the City of Chicago and blocked the federal government from withholding grants from “sanctuary cities.” She also pointed out that Sessions as senator called broad injunctions against the Obama Administration’s immigration policies a “victory for […] the rule of law”:
At that time, then‐Senator and now‐Attorney General Sessions characterized the upholding of one such nationwide preliminary injunction as “a victory for the American people and for the rule of law.” Press Release, Sen. Jeff Sessions III, June 23, 2016. Now, many who advocated for broad injunctions in those Obama‐era cases are opposing them.
In fact, support for or opposition to nationwide injunctions would likely vary with the nature of the controversial issue at stake and the identity of the persons in power. For example, if a different Administration concluded that certain weapons were a threat to public safety, and conditioned receipt of Byrne JAG funds on a state or locality adopting a policy banning assault weapons, it is quite likely that the sides would reverse once again as to the need for and appropriateness of nationwide injunctions. Although the pursuit of nationwide injunctions may be influenced by shifting political motivations, that neither means that nationwide injunctions themselves are inherently evil, nor that such injunctions should never be issued. Instead, courts in determining the proper scope of injunctive relief, must be cognizant of the potential for such injunctions to have a profound impact on national policy.
Judge Rovner granted that support or opposition to nationwide injunctions is likely to vary based on the issue and who is in political power, but dismissed the idea that this has any bearing on judges’ issuing of injunctions.
In reality, injunctions serve as a check on power and this is the source of the backlash from those in a position to make policy.
But, to say one thing in Sessions’ favor, when he calls a nationwide injunction “extreme,” Judge Rovner seems to agree.
In upholding the injunction she said, “I do so, however, only for an injunction that protects Chicago.”
“Other jurisdictions that do not want to comply with the Notice and Access conditions were not parties to this suit, and there is no need to protect them in order to protect Chicago. An injunction, particularly a preliminary injunction, is an extreme remedy,” she wrote. “A nationwide preliminary injunction is more extreme still. One should only be issued where it is absolutely necessary, and it is far from absolutely necessary here.”
“Consequently, I would remand with instructions to the district court to modify the injunction so as to prevent the Attorney General from enforcing the conditions only concerning Chicago’s application for funds,” she concluded.
[Image via Chip Somodevilla and Getty Images]
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