Senators sound off as Supreme Court hears case on nationwide injunctions

With the Supreme Court hearing its first case Thursday relating to nationwide injunctions – federal district court judges issuing rulings that affect the entire country – several proponents of a plan to end the practice are speaking out. 

Senate Judiciary Committee member John Kennedy, R-La., said it appears to be a case of the “tail wag[ging] the dog,” in that it is the judiciary’s job to adjudicate the law, not create it.

“When Congress makes a law, the federal judges are supposed to follow it. When the president exercises his power under Article II, judges are supposed to follow it, so long as it’s lawful,” Kennedy said.

“They can’t just overturn it because they don’t agree with it, and that’s what a lot of these federal judges are doing.”

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In a Fox News Opinion piece this week, Kennedy noted “universal injunctions” have been around since the 1960s, when judges began enjoining the government from enforcing certain policies against “anyone, anywhere” – adding they let a judge say “sayonara” to laws, regulations or even whims of a president they don’t like.

Kennedy noted that there have only been 27 such injunctions from JFK through Y2K. 

A review showed none was lodged against Presidents George H.W. Bush or Bill Clinton – but began to creep in during the George W. Bush and Barack Obama administrations.

With nearly 100 rulings against President Donald Trump in his one-and-an-eighth terms, Kennedy said some judges seem to want to “rewrite the Constitution every other Thursday, to advance some social or economic agenda that they can’t get by the voters: But the law is the law.”

“And a universal injunction was created out of whole cloth. There’s no statutory basis for a universal injunction,” the Louisianan said, echoing the analysis in his op-ed.

Given his penchant for often colorful and probing questions of judiciary appointees, Kennedy was also asked how an unfavorable ruling from the Supreme Court could affect nominee choices and further politicize the process.

“All the nominees in front of us are going to be asked about universal injunctions, I can tell you. And if they try to dodge and bob and weave and run like a hound on the treeline, when it’s my turn to question them I’m not going to let them. I’m not asking how they would rule in a particular case, but I want to know what they think the legal basis is for a universal injunction, because there is none: I want to hear what they had to say.”

Sen. Tommy Tuberville – who joined Kennedy and others in supporting Iowa Sen. Charles Grassley’s Judicial Relief Clarification Act (JCRA) to end the practice – said such “woke” judges should consider retiring their robes.

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“President Trump campaigned on a promise to deport dangerous criminals and won in a landslide. In just four months, he has already delivered the most secure border in American history,” Tuberville told Fox News Digital.

“Unfortunately, we have radical left judges who are allowing their personal beliefs to supersede the will of 77 million Americans who voted for President Trump and his agenda,” the former Auburn football legend added.

“If a judge wants to make political decisions, they should run for office. Otherwise, they should focus on upholding the Constitution and enforcing the law.”

Sen. John Cornyn, R-Texas, also said he supports the JCRA, calling nationwide injunctions “a real problem.”

“[A] single federal judge can essentially stop a popularly elected president dead in his tracks by a temporary restraining order, which doesn’t just deal with the parties in front of the judge, but literally the whole nation.”

“If the Supreme Court doesn’t do it in the context of this birthright citizenship case, then Congress needs to continue to pursue this via Senator Grassley’s bill and other means.”

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While the case argued Thursday involves an injunction with regard to the interpretation of birthright citizenship in the law, Cornyn said that the court will determine the scope of that particular order, but that the idea of nationwide injunctions is being abused.

For his part, Grassley previously told Fox News Digital that such injunctions “are an unconstitutional abuse of judicial power.”