Sessions vows 'emergency' Supreme Court battles amid 'outrageous' discovery rulings by federal judges
S E E D E D C O N T E N T
Attorney General Jeff Sessions on Monday lit into federal judges for what he called a dramatic uptick in "outrageous" decisions threatening to interfere with the separation of powers by exposing internal White House deliberations.
In a fiery speech to the conservative Heritage Foundation in Washington, Sessions warned that "once we go down this road in American government, there is no turning back." He vowed to take "these discovery fights to the Supreme Court in emergency postures. ... We intend to fight this, and we intend to win."
Sessions specifically singled out New York district court judge Jesse M. Furman, who ruled that Commerce Secretary Wilbur Ross could be questioned in an ongoing lawsuit concerning the legality of the Trump administration's decision to add a citizenship question to the 2020 census.
Furman's decision, Sessions said, contradicts longstanding statutory provisions that protect certain executive branch discussions from disclosure, in order to encourage free and open deliberations by executive branch officials. The plaintiffs in the lawsuit, including several liberal states, are arguing in part that the White House added the citizenship question for political reasons.
The judge wants "to hold a trial over the inner workings of a Cabinet secretary’s mind," and inappropriately allow inquiry into the motivations for the Trump administration's decisions, Sessions said.
Furman's order, which was upheld by a New York federal appellate court, has been stayed by Supreme Court Justice Ruth Bader Ginsburg. The full Supreme Court is expected to decide the issue soon.
The pending court challenges against the Trump administration's decision to add a citizenship question, legal experts tell Fox News, face an uphill battle not only because conservatives now command a 5-4 majority on the Supreme Court, but also because traditionally it's been the White House's prerogative to decide whether to inquire about citizenship on the census.
Former President Barack Obama's administration didn't ask the question in the 2010 census amid fears it would unconstitutionally intimidate illegal immigrants into avoiding answering their census questions -- and thus not count toward population totals used to determine the number of seats each state receives in the House of Representatives. (The citizenship question was last asked on the census in 1950, but beginning in 1970, a citizenship question was asked in a long-form questionnaire sent to a relatively small number of households, alongside the main census. In 2010, there was no long-form questionnaire.)
Democrats would lose out because the citizenship question would affect predominately liberal districts, but that's not a legally sufficient objection, legal analysts say.
"There is no credible argument to be made that asking about citizenship subverts the Constitution and federal law," Chapman University law professor and constitutional law expert John Eastman told Fox News. "The recent move is simply to restore what had long been the case."
Eastman also told Fox News it would be legally permissible for the government to only count citizens for purposes of determining representation in the House of Representatives. However, other legal experts have contested that view, saying the Constitution demands that all "persons" be tallied -- not all citizens.
Nevertheless, Sessions said Monday, liberal states and nonprofits have continued to push even longshot legal challenges in order to dig around in executive branch deliberations.
"This is not the first time we’ve had to seek emergency appellate intervention to stop outrageous discovery," Sessions said. Last year, the government filed a successful emergency motion to stop a district court's ruling that permitted plaintiffs to question a Department of Homeland Security counselor about advice relating to the contentious Deferred Action for Childhood Arrivals (DACA) program.
Sessions called that lower court ruling a "blatant violation of deliberative process and attorney-client privileges" and warned that it would have a "chilling effect" on deliberations in the White House.
He added, "Too many judges believe it is their right, their duty, to act upon their sympathies and policy preferences."
The attorney general blamed Obama for encouraging that approach. "One argument for activism was advocated openly by President Obama when he declared his judicial nominees must judge with 'empathy.' It is a seductive argument. But whatever empathy is, it’s more akin to emotion, bias, and politics than law," Sessions said.
"In the recent DACA litigation, for example, a judge last year told one of our DOJ litigators, 'You can’t come into court to espouse a position that is heartless ,'" Sessions continued. "Not illegal. Not unlawful. Heartless. And later, after I responded in a speech that it isn’t a judge’s job to decide whether a policy is 'heartless,' the judge again scolded the DOJ lawyer by stating that I 'seem to think the courts cannot have an opinion.'"
That judge, U.S. District Judge Nicholas Garaufis, was appointed to the bench by former President Bill Clinton. He ruled in March that a lawsuit seeking to preserve the federal DACA program can continue -- citing candidate Donald Trump's "racial slurs" and "epithets."
“One might reasonably infer,” Garaufis said in his politically charged ruling, “that a candidate who makes overtly bigoted statements on the campaign trail might be more likely to engage in similarly bigoted action in office.”
Separately, Sessions also said the 27 nationwide federal injunctions issued by individual judges during the Trump administration so far -- which brought temporary halts to high-profile policies like his ban on travel from Muslim-majority nations -- constitute an unprecedented "judicial encroachment."
"It is emphatically not the duty of the courts to manage the government or to pass judgment on every policy action the Executive branch takes," Sessions said. "In the first 175 years of this Republic, not a single judge issued one of these orders."
In his confirmation hearings for the Supreme Court in September, then-nominee Brett Kavanaugh was asked by Louisiana Republican Sen. John Kennedy about the constitutionality of individual federal judges issuing nationwide injunctions against presidential action, a recent phenomenon. Kavanaugh demurred, saying he could not discuss potential pending issues before the Supreme Court.
Sessions noted that Associate Justice Clarence Thomas, who concurred in the high court's decision earlier this year to reinstate Trump's travel ban, wrote that such injunctions “take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch.”
He added: "Executive branch officers do not work for the judiciary. We work for the president of the United States. Respect runs both ways."
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It's been a bad day for progressives and there are a few more surprises coming and they aren't gonna like any one of them.
This is a blatant violation of the separation of federal powers because those judges are not in any way accountable to the AG or the Executive branch in general. The judicial branch is independent of and equal in power and statute to both the executive and legislative branches so this threat is an unconstitutional overreach. He cannot call for an emergency session of the SCOTUS and his opinion means bupkis.
Really? Did you already forget what the SCOTUS said in it's travel ban ruling:
"So much for the claim that Donald Trump’s strident campaign rhetoric about Muslims rendered him unfit to wield the powers of the presidency. The Supreme Court will have none of it.
That’s the bottom line in the justices’ blockbuster decision to back President Trump against a suit by Hawaii on the so-called Muslim travel ban , overruling the lower courts.
Not only that, but the decision was a major blow to the “judicial resistance” — the attempts by judges to constrain Mr. Trump’s clearly vested powers because they don’t like the president who’s wielding them.
The vote may have been a narrow five to four. It was backed up, though, by a thumping decision by Chief Justice Roberts, eviscerating claims by the judicial resistance to Mr. Trump.
All sorts of issues were swept away by the majority of justices: Anthony Kennedy, Samuel Alito, Clarence Thomas and Neil Gorsuch joined Chief Justice Roberts.
At the heart of the case, though, lay what the justices called “a series of statements by the president” that cast doubt on the “official objective” of his extreme vetting.
The justices cited Mr. Trump’s call during the campaign for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
They also referenced an interview by Mayor Giuliani after Mr. Trump was sworn in. Mr. Giuliani asserted that Mr. Trump had referred to a “Muslim ban” and asked to be shown “the right way to do it legally.”
Tweets by the President made well after Hawaii began its litigation were also cited by the justices. They noted the President “retweeted links to three anti-Muslim propaganda videos.”
They also dealt with attempts by Mr. Trump’s opponents to drag into the litigation the case of Fred Korematsu. He was the American-born son of Japanese parents who’d fought internment in World War II.
Korematsu, decided in 1944, is an infamous case. The Supreme Court okayed FDR’s roundup of persons of Japanese descent and their placement into internment camps.
The justices plainly thought about this. That was made clear by Justice Sotomayor, in an eloquent dissent arguing that there were “stark parallels” between the Trump case and Korematsu.
Just as FDR did in Korematsu, Sotomayor wrote, Mr. Trump “invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion.”
The majority, however, swept Korematsu aside. “Whatever rhetorical advantage the dissent may see in doing so,” the majority wrote, “Korematsu has nothing to do with this case.”
It called the internment of American citizens “solely and explicitly on the basis of race,” as happened in Korematsu, “objectively unlawful and outside the scope of presidential authority.”
In an extraordinary aside, the majority went so far as to label Korematsu “gravely wrong the day it was decided.” It said it “has been overruled in the court of history.”
The majority insisted, though, that it’s “wholly inapt” to liken the “morally repugnant” policy in Korematsu to “a facially neutral policy denying certain foreign nationals the privilege of admission.”
What Mr. Trump had done, it ruled, is “well within executive authority and could have been taken by any other president.” It was done under a law Congress passed and could adjust at any time.
So clearly did the high court assert Mr. Trump’s authority under the Immigration and Nationality Act that this case could well be remembered for its weakening of the judicial resistance seeking to use the courts to undo the voters’ choice in 2016.
It’s not just lower-court judges ignoring the president’s statutory authority. Or requiring, the court noted, Mr. Trump to jump through hoops that no court ever imposed on his predecessors.
There’s also the question of federal-district judges handing out “universal” injunctions that reach way beyond the parties involved — affecting the whole country or even the world.
The district judge in Hawaii — Derrick Watson — had enjoined Mr. Trump from implementing the travel restrictions anywhere. Chief Justice Roberts felt no need, in this case, to sort out the issue.
Clarence Thomas, in a concurrence, went further. He called such orders “legally and historically dubious,” warning that if the lower courts continue using them, the Supremes would be “duty-bound” to adjudicate.
So the judicial resistance is on notice.
So in other words, you all are pushing for zero accountability from elected officials.
That is exactly what sessions is saying.
Supporting this is lunacy.
Accountability must be Latin for "the Resistance"
Some may think it is funny but the pendulum does swing.
When the Democrats regain power, these rules will be in place. Will you be happy then?
When they can say or do anything they want and no one can have any reprisals.
Dream and I'll dream with ya
So in other words, you have no valid response except to dismiss what I have said.
I have a very valid response. I refer you to post # 1.1.1
That was not a response, it was a copy and paste job of an opinion piece.
A four to five decision. Do you think it would have been different if Garland was on the court?
What you are cheering for is exactly what I described.
Keep going down this road though. It will not only be Democrats that are silenced or told that they can do nothing about it. You are playing into their hands.
Oh, dear!
A four to five decision. Do you think it would have been different if Garland was on the court?
Oh, it might have been. I know it wouldn't even have the lower court decisions without the lower court Obama judges.
What you are cheering for is exactly what I described.
A crack down on activist judges resisting this President at every turn
Keep going down this road though. It will not only be Democrats that are silenced or told that they can do nothing about it.
They paved this road, starting with Justice Brennan
Oh bullcrap. But I am going to leave you all and let you all wallow in cheering for fascism.
Good night
And, ya know, he's right.