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Trump And Pence Launch Autocratic Attack On Federal Courts

Reprinted with permission from DCReport.

Here’s a proposed step towards the new autocracy that Donald Trump is promoting that we ought to stop in its tracks.

Vice President Mike Pence told the Federalist Society on Wednesday that the Trump administration intends to challenge the right of federal district courts to issue rulings blocking nationwide policies, arguing that such injunctions are obstructing Trump’s agenda on immigration, health care and other issues.

It’s a perfect distillation of what’s wrong about the direction of the Trump presidency. It is a call for disruption – again – of judicial procedures and jurisdictions, all with the intent to protect any policy announcement by an imperial White House to be questioned. And it is not the White House’s jurisdiction to change.

In effect, the policy being presented by Pence would require multiple court challenges to reach a nationwide effect. The whole point of a federal judiciary is the opposite.

That the courts have become the favored battleground for Trump critics is as much a reflection of the fact that Trump policies have been announced too often in violation of the Constitution, of standing law and procedures, is not a fault of the judicial system. It is an indictment of the Trump policy-making machinery.

Pence argued that nationwide injunctions issued by federal judges “prevent the executive branch from acting, compromising our national security by obstructing the lawful ability of the president to stop threats to the homeland where he sees them.” He said the administration wants to bring the issue to the Supreme Court “to ensure that decisions affecting every American are made either by those elected to represent the American people or by the highest court in the land.”

Administration officials have complained that announced policies like a Muslim Travel Ban were blocked in the courts simply get in their way, Constitutional issues apparently be damned.

Simply put, Pence is saying that lower courts should not be allowed to block the government from enforcing a law even if that law is found unconstitutional — they should only be allowed to exempt the specific person or people who sued from the law, argued RawStory.com.

The Supreme Court has never addressed the nationwide extent of the injunction against the ban issued by lower courts because the justices upheld the ban in its entirety. Experts say that for the Supreme Court to issue a definitive ruling on nationwide injunctions, it would first have to rule against the administration on the underlying merits of the case before it. Only at that point could the court consider whether a lower court order should apply nationwide or only to the people who are challenging an administration policy.

Obviously, a nationwide injunction has the effect of stopping “a federal policy everywhere,” as argued in the travel ban case. An alternative is for a judge to issue an order that gives only the people who sued what they want.

In his remarks, Pence quoted from an opinion by Justice Clarence Thomas, who joined the majority opinion upholding the Trump travel ban last June, but also wrote separately to say nationwide injunctions “are legally and historically dubious” and that the high court would have to step in “if federal courts continue to issue them.”

Trump has long railed against district courts, especially the 9th Circuit, on the West Coast,  for blocking his initiatives, including efforts to overhaul the nation’s immigration system.

Trump raised the courts issue at a Florida rally, saying, “Activist judges who issue nationwide injunctions based on their personal beliefs undermine democracy and threaten the rule of law.”

Ironically, Trump won a 2-1 ruling from the 9th Circuit just this week that allows the administration to make asylum seekers wait in Mexico for immigration court hearings while a court challenge continues.

Yes, there is an argument that lawyers go “forum shopping” for a believed-to-be friendly court.  But adoption of such a ban on national injunctions could adversely affect cases with classes of individual plaintiffs as well.  More importantly, these court challenges have become a necessary defense in an increasingly authoritarian presidency. Trump simply wants to eliminate all challenges to any policy he favors.

This one ought to be stopped in its tracks.

IMAGE: Judges of the Ninth Circuit Court of Appeals in San Francisco, CA.

Judges Strike Down Ohio’s Gerrymandered Congressional Districts

Reprinted with permission from Alternet.

Of all the Rust Belt states that President Donald Trump won in 2016, Ohio was arguably the most disappointing for Democrats in the 2018 midterms two years later. Democratic Sen. Sherrod Brown was reelected, but Republicans maintained 12 of the 16 seats that Ohio has in the U.S. House of Representatives. A federal court ruling on Ohio’s congressional map, however, might give Democrats some hope for 2020’s House races in the Buckeye State.

A panel of three federal judges, Roll Call reports, has struck down Ohio’s congressional map as unfairly gerrymandered. The judges ruled that Ohio must present a new map for 2020 and has given the state until June 14 to come up with one.

During the Obama years, Ohio and Michigan were among the states where Republicans were aggressive in their gerrymandering of congressional districts. Ohio’s congressional map, in 2011, was redrawn by a GOP-controlled state legislature. That map, first used in 2012, was challenged by various Democratic as well as nonpartisan organizations—and the three-judge panel found that “invidious partisan intent, the intent to disadvantage Democratic voters and entrench Republican representatives in power, dominated the map-drawing process.”

This decision follows an April 25 ruling in which a panel of three judges ruled that Michigan’s congressional map had been unfairly gerrymandered and that the state must come up with a new one for 2020. In the lawsuit challenging Michigan’s congressional map (which was drawn in 2011), the League of Women Voters and some Democratic plaintiffs argued that it gave an unfair advantage to Republicans. And the judges agreed with the lawsuit, ruling that it was wrong to “dilute the views of Democratic voters.”

Michigan, however, was generally a better state for Democrats than Ohio in 2018: despite gerrymandering, Democrats flipped two GOP-held seats in the U.S. House of Representatives.

Michigan’s state legislature has until August 1 to draw a new congressional map, which would be signed into law by the state’s new Democratic governor, Gretchen Whitmer.

IMAGE: Photo of Senator Sherrod Brown (D-OH) by Ohio AFL-CIO/Flickr.

 

 

Tired Of Winning Yet? Trump Notches 63 Embarrassing Court Defeats

The Trump administration has racked up an embarrassing pile of 63 losses in federal courts over the last two years — and experts say it’s thanks to rank incompetence and a failure to do the very basic legwork of making sure new policies will pass legal muster.

“In case after case, judges have rebuked Trump officials for failing to follow the most basic rules of governance for shifting policy, including providing legitimate explanations supported by facts and, where required, public input,” the Washington Post reports.

The Trump team has a particularly high failure record in cases involving the Administrative Procedure Act, which the Post describes as a key law that defends against “arbitrary rule” by the executive branch.

Usually, under other presidents of both parties, the government wins about 70 percent of such cases. Under Trump, that win rate has been reduced to a pathetic six percent.

The Trump team makes it “very easy for the courts to reject them because they’re not doing their homework,” Georgetown Law’s William W. Buzbee, an expert on administrative law, told the Post.

The incompetence even frustrates Trump’s conservative allies.

Seth Jaffe, a pro-deregulation lawyer working for corporations, told the Post, “It’s not just that they’re losing. But they’re being so nuts about it.” He added that he thinks the Trump team’s mistakes have “set regulatory reform back for a period of time.”

But many of these policies aren’t just incompetently written; they’re also cruel and harmful. And Trump’s own words are often enough to convince a judge of this.

In at least a dozen cases, Trump’s nonsensical and bigoted comments have been cited in court and used against him. In one instance, Trump’s reference to countries with large nonwhite populations as “shit-hole” countries helped convince a judge to rule against Trump’s anti-Muslim travel ban because it was so clearly motivated by bias.

Thankfully, Trump’s failures in the courts have slowed his attempts to roll back environmental protections and regulations that keep millions of Americans safe.

When campaigning for the presidency, Trump promised the country that if elected, he would win so often that people would get “tired” of his winning.

But Americans know the truth — which is why they continually give him losing marks for job performance.

Trump promised to hire “the best people” to work under him, but he has consistently been unable to attract top talent thanks to his repeated bumbling and overall corruption.

Trump values loyalty above all. Loyalty matters more than patriotism or even basic competence. As a result, the Trump administration is staffed with sycophants instead of competent federal employees who are capable of doing the intense work needed to run the government.

The team Trump assembled is losing because Trump has set himself and the country up to fail through poor leadership.

Published with permission of The American Independent.