Conservative Legal Scholars Debate Response to Liberal Judges’ Overreach on Injunctions

Prominent conservative legal scholars on Monday debated the proper legal response to liberal federal judges’ injunctions against actions by the Trump administration.

From legislation that would alter the judiciary’s powers to introducing articles of impeachment, the commentators offered varying solutions to the current controversy over the separation of powers in a panel discussion at The Heritage Foundation.

Central to the discussion was Washington, D.C.-based U.S. District Court Judge James Boasberg’s injunction against deportation flights leaving the United States, which the panelists unanimously criticized.

George Washington University law professor Jonathan Turley was in the camp of urging Congress and the White House to refrain from combating the judiciary too fiercely.

“Where I’ve been critical of the administration is often on the rhetoric, and I think it has committed some unforced errors,” said Turley. “They’ve got to really pick the hills to fight on.”

The judicial scholars at a panel discussion Monday were unanimously critical of federal Judge James Boasberg’s injunctions against the Trump administration. (Carolyn Van Houten/The Washington Post via Getty Images)

Turley added that he does not support impeaching judges, and that he thinks the legal system will sort out judicial overreach.

A number of members of the House of Representatives have already introduced articles of impeachment against judges who have issued injunctions against Trump administration actions.

“I also don’t agree with limiting jurisdiction or limiting funds. I believe we have the world’s greatest judicial system, and it’s working. Injunctions have been lifted. The Supreme Court just recently again ruled in favor of the Trump administration,” Turley said.

Additionally, the GWU law professor warned against what he sees as a dangerous precedent of ignoring court rulings, which would likely continue in future administrations.

However, Mike Davis, the president of the conservative advocacy group Article III Project, disagreed with Turley. Davis argued that the scope of injunctions was so beyond the norm that impeachments were necessary.

Mike Davis of the Article III Project (Dominic Gwinn/Middle East Images/AFP via Getty Images)

Davis spoke at length of Boasberg’s order for American deportation flights to be returned to the United States. He described that as an “unacceptable” instance of judicial overreach that damages “the president’s ability to conduct foreign affairs.”

“It’s a red line, and that’s the reason I have called for the impeachment of Judge Boasberg. I have called for the Trump administration to ignore his order. I’ve never done this before” he said. “This is a very serious matter for the judiciary’s legitimacy.”

One point of agreement uniting all of the panelists, however, was that the judges were in the wrong for their far-reaching rulings.

Turley indicated he was open to supporting legislation that would require more than one judge to sign off on national injunctions against a president’s executive orders.

“I would like to see, at a minimum, any class action have to go through a separate three-judge panel with very narrow conditions, under which a national injunction can be held. I would also like to see Congress collapse the time for appeal,” Turley said.

Sen. Mike Lee, R-Utah, and Rep. Darrell Issa, R-Calif., have introduced legislation that would require that nationwide injunctions be approved by a three-judge panel.

Hans von Spakovsky, a senior legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies, agreed with the case for allowing Congress to limit judges’ authority and requiring multiple rulings for there to be a nationwide injunction. 

He alluded to laws passed by Congress during the Civil Rights Movement to enforce equal voting laws, arguing that these establish a precedent for the proposed legislation.

“When the Voting Rights Act was passed in 1965 … they didn’t trust some of the federal judges in the Southern courts who had been put forward by the Democratic Party, that they would rule the right way on certain voting cases, and so they set up a system of a three-judge panel … and so, we’ve done this before. It’s something that could be done again.”

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