New SCOTUS ruling on injunctions

[ThatRobGuy]

FDR was acting under war powers, which is one of the scenarios that executive orders were intended to cover. Same with Wilson. Looking at Coolidge's list of EOs, many of them seem to be appointments and other functions now handled by various Executive Branch agencies that didn't exist at the time. The same goes for other presidents of roughly the same era with high numbers of EOs (Teddy Roosevelt, Taft, Harding, Hoover, etc).

You have to consider not just the number but also the nature of executive orders issued. Obama really expanded the use of EOs to dictate policy rather than specific actions, and Trump and Biden continued that.

Sorry, was editing my post to add this next bit, but couldn't get it in there before you had already quoted

In reading back through the archives, it appears that the one that "got the ball rolling" on practice of "let's file an injunction request for this EO we don't like", was EO 13202 from the George W Bush administration, which was
Executive Order 13202, signed by President George W. Bush, prohibited federal funding for a project if a government or its partners or agents imposed a mandate for construction contractors to sign a Project Labor Agreement with one or more labor unions

The process took about 18 months, and because it was filed in a district that was "friendly" to the interests of the entities filing the injunction (as was the circuit court above it), by the time it was appealed and certain parts of it were allowed to stand, it was already Obama's term to be president, and he rescinded that order in his 3rd week of holding office.

Obviously political strategists don't need to be rocket scientists to look at that say "Hey, that worked out pretty well"

It's not a coincidence that Democratic led injunctions tend to be filed in the DC District court, and the Republican led injunctions tend to be filed in the South Texas district court.

Given that a presidential term is only 4 years, if 2 hours of paperwork can stall their efforts by a year and a half (a substantial portion of their term), and you can basically handpick the judge to file it with...that seems like a far too easy "sneaky strategy" to leverage.

 

[RocksInMyHead]

The process took about 18 months, and because it was filed in a district that was "friendly" to the interests of the entities filing the injunction (as was the circuit court above it), by the time it was appealed and certain parts of it were allowed to stand, it was already Obama's term to be president, and he rescinded that order in his 3rd week of holding office.

Obviously political strategists don't need to be rocket scientists to look at that say "Hey, that worked out pretty well"

Ultimately, does it really change much if Bush's order is in effect for 18 months before Obama gets rid of it?

It didn't help that Congress has gotten significantly more dysfunctional every year since Bush II, meaning that the Executive has felt the need to enact its agenda by dictate rather than by passing bills through the legislature. That has led to EOs becoming significantly more partisan and divisive - leading to more of them being challenged in court.

Given that a presidential term is only 4 years, if 2 hours of paperwork can stall their efforts by a year and a half (a substantial portion of their term), and you can basically handpick the judge to file it with...that seems like a far too easy "sneaky strategy" to leverage.

Sure - but again, this is only really relevant if the President is making his "efforts" via executive order rather than legislation.

In a general sense, I can agree with some of the opposition to nationwide injunctions. However, in the current political environment I see them as an important check on executive overreach (from both sides of the aisle). If we can solve that issue, then I think its reasonable to look at putting some limits on the scope of injunctions.

 

[JSRG]

View attachment 366890
^^^^
During that whole period, there were only 27 injunctions by district courts...

View attachment 366891
^^^^
This is the period where the injunctions started spiking.


I don't know that the trend of governing by EO is increasing the way people seem to think it is.

In reality, George W. Bush, Obama, Trump, and Biden have used that "power of the pen" less excessively than a lot of their predecessors.

Coolidge and FDR issued a combined 5k executive orders between them, not a single district court injunction filed against any of them that I'm able to find.

Yet, 19 of Obama's 276, and 55 of Trump's 220 had injunctions filed against them?

Given the numbers of EO's by president...

It seems like it's less of a "response to increasing trend", and more of a "copycat response to a bad incentive structure"

In reading back through the archives, it appears that the one that "got the ball rolling" on practice of "let's file an injunction request for this EO we don't like", was EO 13202 from the George W Bush administration, which was
Executive Order 13202, signed by President George W. Bush, prohibited federal funding for a project if a government or its partners or agents imposed a mandate for construction contractors to sign a Project Labor Agreement with one or more labor unions

The process took about 18 months, and because it was filed in a district that was "friendly" to the interests of the entities filing the injunction (as was the circuit court above it), by the time it was appealed and certain parts of it were allowed to stand, it was already Obama's term to be president, and he rescinded that order in his 3rd week of holding office.

Obviously political strategists don't need to be rocket scientists to look at that say "Hey, that worked out pretty well"

The problem with the comparison you offer is that the number of executive orders means very little. What matters is what they do.

Let's take an analogy in regards to acts of congress. Which was more important and more consequential by the 111th Congress: The 88 acts that were devoted to giving names to public properties (mostly post offices), or the 1 act that was the Affordable Care Act? That last one was of much greater consequence than those other 88 put together... but it's only 1 compared to 88. Numbers don't tell us much of anything.

Granted, I also think that part of the reason for the universal injunctions is what you say, that people have realized they work to frustrate political plans they don't like... but we shouldn't disregard the fact part of it is the fact that Presidents, in substance if not necessarily in numbers, are going farther with their executive orders than before.

 

[rjs330]

was (generally) in favor of the executive actions taken by Obama and Biden in an abstract sense, as they mostly embodied policies that I agreed with - just as I'm sure you're in favor of the executive actions Trump has taken. However, the fact that they were executive actions rather than laws was not my preference. I would not have minded further checks on their executive power - perhaps it would have encouraged our government to actually...uh...govern. We're not a monarchy - policy should not be unilaterally dictated by the executive.

We definitely agree rhat we would prefer laws be enacted. At least for some things. Other things I'm fine with EOs. Especially when it comes to policies. Not everything needs to be a law.

Functionally, it is. If it is harder to check executive power, then executive power is expanded.

Not really because it can be still challenged. Just not a blanket challenge for the whole country from one judge.

That's not what I meant and you know it.

I didn't say you did. I was pointing out what is happening in some cases. EOs did become more attractive and the courts were making them harder to overturn. I was pointing out that we already had in place the thing you were talking about. I know you didnt mean it that way. But it is what was happening.

I'm far more concerned about the ability of the people and the other branches of government to check the Executive's power in the moment than the ability of the Executive to reshuffle policy every 4-8 years.

Only when it suits your side of the aisle. You already agreed you didn't have a problem with EOs from your side. Your position doesn't seem principled as much as it seems just partisan. At least now. I don't recall you ever standing up and saying you wish the courts would strike down any of Obama's or Biden's EOs.

I think it was much too easy for a single judge to throw a national injunction on a president for is EOs effectively completely halting any and every EO that the president wants to do policy wise. Ridiculous on both sides.

And guess what. SCOTUS agrees.

 

[RocksInMyHead]

Not really because it can be still challenged. Just not a blanket challenge for the whole country from one judge.

I'm pretty sure class action suits are still only heard by one judge. They're just harder to initiate. It's not a large expansion of power, but it is an expansion.

I didn't say you did. I was pointing out what is happening in some cases. EOs did become more attractive and the courts were making them harder to overturn. I was pointing out that we already had in place the thing you were talking about. I know you didnt mean it that way. But it is what was happening.

In what ways have the courts made EOs harder to overturn? I'm not aware of any legal challenges to any EOs that simply rescind a previous EO. There's no constitutional question about the president's authority to undo a previous executive action - anything created or implemented by executive order can be rescinded by executive order.

Only when it suits your side of the aisle. You already agreed you didn't have a problem with EOs from your side.

I don't know if you're deliberately misinterpreting what I said, or if you just didn't understand. Because that's not what I said. You can simultaneously not have a problem with a policy itself while having a problem with the way that the government chose to implement it. I'm pretty sure I'm even on record here saying that I wish Biden hadn't done stuff the way that he did, or words to that effect.

Your position doesn't seem principled as much as it seems just partisan. At least now. I don't recall you ever standing up and saying you wish the courts would strike down any of Obama's or Biden's EOs.

This isn't about wanting the courts to strike down any particular executive orders. It's about ensuring that there are sufficient checks in place for a power that is too easily exercised. Removing or limiting checks on executive power is - generally - a bad thing in my opinion.

I think it was much too easy for a single judge to throw a national injunction on a president for is EOs effectively completely halting any and every EO that the president wants to do policy wise. Ridiculous on both sides.

And I disagree - I think it's very good that there are ways to swiftly (and temporarily) stop unilateral actions by the Executive until they can be properly reviewed by the Judicial when there are questions of constitutionality. I think it's good that conservative plaintiffs were able to quickly stop Biden's student loan forgiveness programs (even if I agreed with the idea), and I think it's good that liberal plaintiffs were able to quickly stop Trump's order ending birthright citizenship.

 

[ThatRobGuy]

Ultimately, does it really change much if Bush's order is in effect for 18 months before Obama gets rid of it?

It didn't help that Congress has gotten significantly more dysfunctional every year since Bush II, meaning that the Executive has felt the need to enact its agenda by dictate rather than by passing bills through the legislature. That has led to EOs becoming significantly more partisan and divisive - leading to more of them being challenged in court.

Yes, it actually was somewhat time sensitive.

There were/are certain projects that needed a timely completion. The Woodrow Wilson Bridge Project was an impacted project in this instance.


The project’s superstructure contract was temporarily subjected to a union-favoring PLA requirement by former Maryland Governor Parris Glendening (D). Originally estimated to cost $450 million to $500 million, by Dec. the Wilson Bridge’s superstructure contract received just one bid at a price of $860 million – more than $370 million more than engineering estimates, a 78 percent cost overrun.

This was due to a union-led legal challenge to a White House executive order prohibiting government-mandated PLAs and controversy between elected officials in Maryland and Virginia. Eventually, after legal challenges were resolved, the Wilson Bridge superstructure project was rebid without the government-mandated PLA into three smaller bid packages. In Oct., multiple bids were received on each of the smaller contracts, and the winning bids came in significantly below the engineering estimates. While the bridge was delayed more than a year for re-bidding, it was eventually completed below the original budget and completed on-time, free from a government-mandated PLA.


When a major bridge needs fixing, and it's a federal project, there is a lot of pressure on federal officials to "get it done ASAP" (for obvious reasons). George W Bush wanted to be able to complete those kinds of projects using competitive bids rather than get stuck overpaying by 70% due to PLA mandates.

The injunctions were an attempt to basically leave him with the choice of
"Stop doing the thing we don't like"
or
"Be known as the president who's willing to leave a bridge in disrepair and miss the completion deadlines and look incompetent"

 

[rjs330]

In what ways have the courts made EOs harder to overturn? I'm not aware of any legal challenges to any EOs that simply rescind a previous EO.

There have been several. Including the transgender ban in the military.

I don't know if you're deliberately misinterpreting what I said, or if you just didn't understand. Because that's not what I said. You can simultaneously not have a problem with a policy itself while having a problem with the way that the government chose to implement it. I'm pretty sure I'm even on record here saying that I wish Biden hadn't done stuff the way that he did, or words to that effect.

Ah, I guess I misunderstood. My apologies.

This isn't about wanting the courts to strike down any particular executive orders. It's about ensuring that there are sufficient checks in place for a power that is too easily exercised. Removing or limiting checks on executive power is - generally - a bad thing in my opinion.

I'm still skeptical. What executive powers did Obama and Biden use that were too easily exercised in your opinion that the courts should have limited or put a check on? Can you think of any?

And I disagree - I think it's very good that there are ways to swiftly (and temporarily) stop unilateral actions by the Executive until they can be properly reviewed by the Judicial when there are questions of constitutionality.

Isn't that pretty much always the charge though? Every order that is challenged is challenged on the constitutionality of the order. Including simple policy orders.

I think it's good that conservative plaintiffs were able to quickly stop Biden's student loan forgiveness programs (even if I agreed with the idea), and I think it's good that liberal plaintiffs were able to quickly stop Trump's order ending birthright citizenship.

I don't remember if you joined other progressives on the loans forgiveness thing or not concerning Biden continuing to put it into place even after Scotus said no. Many kept cheering him on to do it and keep trying through EOs. Maybe you were one that opposed it happening by EO from the start?

Liberal plaintiffs have acted quickly to try and stop Trumps EOs from the start.

And now SCOTUS has ended the easy out for them. I think birthright citizenship dies need to be challenged. I honestly dont think the Ammendment was intended to be used the way it is. Just get to the US, have baby and you are locked in. I dont believe that was what it was trying to do.

 

[Pommer]

I think birthright citizenship dies need to be challenged. I honestly dont think the Ammendment was intended to be used the way it is. Just get to the US, have baby and you are locked in. I dont believe that was what it was trying to do.

When the 14th Amendment was crafted, the fastest that human beings could go was about 50mph; human flight was limited to lighter-than-air craft.
But if the courts go down that path, then the “shall not be infringed” could be subjected to some scrutiny?

 

[JSRG]

And now SCOTUS has ended the easy out for them. I think birthright citizenship dies need to be challenged. I honestly dont think the Ammendment was intended to be used the way it is. Just get to the US, have baby and you are locked in. I dont believe that was what it was trying to do.

What the Amendment was trying to do was make it so that everyone who was born in the US and subject to the laws of the United States (thereby excluding children of ambassadors or the Native American tribes) would be citizens. Which is the case in the situations you describe.

What you describe may be an instance of unintended consequences--that is, they did not foresee the extent to which this could be done (it was a whole lot harder to travel back then). However, it does not make much sense to say that a law had unintended consequences, and therefore it means something different. I am pretty certain that when passing the 18th Amendment (banning alcohol) they were not intending to give organized crime one of the biggest bursts in strength it has had in American history, but that was an effect it had. That does not mean it would be proper for a court to say "well, it had consequences that were not intended, so it isn't actually prohibiting alcohol." No, the proper way to fix it, and the proper way they did fix it, was to pass another amendment later on rescinding this amendment.

If someone thinks the degree to which the US offers birthright citizenship is too much and it should be more restrictive (as is the case in many countries), then pass an amendment doing so.

 

[RestoreTheJoy]

If it was "obviously outside of their authority," that begs the question of why something wasn't done about this earlier - after all, the Court has had the same makeup since 2022, and every justice in the majority opinion has been on the Court since at least 2020. There were roughly 30 nationwide injunctions during Biden's administration, and yet the Court said nothing about any of them. Curious.

The Court doesn't unilaterally rule on any matter until it is presented. A case presenting the issue has to come before them and then they rule on it. This is the first one that made it through the maze to the Supreme Court about the authority district judges have to impose a ruling on the entire country. They do not have that authority piecemeal (a class action would be different).

 

[RocksInMyHead]

There have been several. Including the transgender ban in the military.

That EO does a lot more than simply rescind Biden's EO 14004. You can read it here: https://upload.wikimedia.org/wikipedia/commons/5/5e/Executive_Order_14183.pdf

The lawsuits brought against Trump's EO are not about the part that rescinds the 2021 EO 14004.

I'm still skeptical. What executive powers did Obama and Biden use that were too easily exercised in your opinion that the courts should have limited or put a check on? Can you think of any?

Again, you misunderstand me. This is not about specific actions taken that I object to, but rather the whole process itself. What powers did they use that were too easily exercised? Their power to issue executive orders. You complain about a judge being able to halt the president's agenda by the stroke of a pen. I think it's worse that the president can violate the constitution with the stroke of a pen.

Isn't that pretty much always the charge though? Every order that is challenged is challenged on the constitutionality of the order. Including simple policy orders.

Policies can violate the constitution, so I'm not sure why that's relevant to bring up.

I don't remember if you joined other progressives on the loans forgiveness thing or not concerning Biden continuing to put it into place even after Scotus said no. Many kept cheering him on to do it and keep trying through EOs. Maybe you were one that opposed it happening by EO from the start?

The reason why I objected to it being done by executive order was that executive orders are relatively easy to block. Any policy that you genuinely want to see implemented long-term should be done by legislation, not executive order.

Liberal plaintiffs have acted quickly to try and stop Trumps EOs from the start.

Because they believe that Trump is unilaterally violating the constitution. Just as the conservative plaintiffs who acted quickly to block Biden's executive orders from the start did. That's a good thing. We should not be left to question the constitutionality of our president's proclamations or allow potentially unconstitutional orders to go into effect until their constitutionality is settled. I don't see how this idea is controversial.