Justice Neil Gorsuch was one of five Supreme Court judges who voted to stay nationwide injunctions imposed by lower courts that barred the Trump administration from denying visas to people who are likely to become public charges. But in his concurring opinion, Gorsuch went a step further, decrying the growing practice of judges exercising what amounts to veto power over government policies. Judicial veto has been especially prevalent in immigration matters, particularly since President Trump assumed office, as every policy aimed at protecting the public interest is litigated by mass immigration advocates.
“There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide,” Gorsuch wrote.
Any one of those judges – and the advocates for unchecked immigration know precisely who they are – can essentially veto efforts by the Executive Branch to faithfully carry out laws enacted by the Legislative Branch by issuing an injunction that applies not only in that judge’s district, but nationwide. With more than a bit of sarcasm, Gorsuch notes that, “Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant [i.e. the government] must act toward persons who are not parties to the case.”
The role of the district court judge in issuing an injunction against implementation of a federal immigration policy is to determine whether there is legitimate cause to believe that the plaintiffs filing the suit will be unfairly or irreparably harmed. “But when a court goes further than that, ordering 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,” observed Gorsuch.
Gorsuch’s concerns are not abstract legal musings. They address a calculated strategy that the mass immigration advocacy network has employed with remarkable effectiveness over the past three years, which is to try to run down the clock on the Trump administration. Winning their lawsuits against administration immigration enforcement efforts is a secondary consideration for the mass immigration advocacy network. In fact, the record shows that in the end they have lost nearly all of them on the merits. Their primary goal has been (and continues to be) to delay effective implementation of immigration laws and policies for as long as possible while waiting and hoping for a president who shares their ideological goals.
In furtherance of those goals, the mass immigration lobby has been able to rely on a relative handful of activist judges who believe that donning a black robe also endows them with veto power over presidential actions they disapprove of. “This is not normal,” Gorsuch opines. Or, perhaps, it is the new normal. Whatever it is, it not what the founders of our republic had in mind.