Trump shouldn’t flout a judicial order, he should move to reform the process

In an unprecedented rebuke of judicial power, the Trump administration is apparently ignoring a temporary restraining order from a federal judge.

President Trump invoked the Enemy Aliens Act, a law from 1789 that permits the president to deport any male over the age of 14 from an enemy country, to begin mass deportations of alleged members of the Venezuelan gang Tren de Aragua to El Salvador. This is the fourth time the law has ever been invoked and the first time since World War II.

A federal judge issued a temporary restraining order to prevent the deportations while assessing the constitutionality of the administration’s deportation plan. Instead of complying, the Trump administration has flouted the order by refusing to turn around planes carrying the alleged gang members.

This move is flawed. Instead of ignoring judges’ orders, the Trump administration should use this opportunity to reform the process of nationwide temporary restraining orders and injunctions.

Whichever party is in power in Washington will always find it politically inconvenient that a single unelected federal district judge can legally block a policy nationwide. While Republicans get frustrated when a judge impedes their plans, orders and injunctions have benefitted them in the past.

For example, a federal district court judge issued a temporary restraining order blocking the Biden administration’s nationwide COVID-19 vaccine mandate in 2021. This led to a preliminary injunction and a landmark Supreme Court case that found the mandate unconstitutional. Without the initial temporary restraining order, millions of Americans would have been forced to choose between their jobs or violating their faith.

Democrats voiced similar frustrations against temporary restraining orders and nationwide injunctions when they were in power. Indeed, nationwide injunctions are one the few tools that the parties both hate and benefit from. Stripping Democrats of their ability for legal recourse in the short term will yield long-term harm to Republican causes, particularly during a future Democratic administration.

A policy of flouting judicial orders displaces the separation of powers inherent to the Constitution, which preserves our system of government by ensuring the co-equal branches do not overstep their proper bounds. By apparently ignoring a court order, the administration is subverting judicial power and preventing the judiciary from checking executive power, thus threatening the judicial branch’s co-equal status. Reducing the judiciary’s role would have long-term negative consequences for American democracy.

Instead of undermining the separation of powers, Republicans should capitalize on bipartisan disdain for how temporary restraining orders and nationwide injunctions are granted. There may be a real chance to reform the process legally. This would allow them to gain a bipartisan win while also remedying valid concerns about single judges wielding immense power. Further, reforming the process of nationwide orders and injunctions using valid constitutional powers would preserve the stability of our system.

Fortunately, there is a constitutional way for Republicans to reform the nationwide order and injunction process without harming separation of powers. Article III of the Constitution grants Congress the power to create and destroy lower courts, permitting it to control federal courts' jurisdiction. This control over federal courts permits Republicans in Congress to pursue three remedies that can resolve their issues with judicial orders in a bipartisan fashion.

First, Republicans can change the law to require that parties seeking nationwide orders or injunctions must pay a high filing fee, which the law regulating them lacks. If Republicans and Democrats can agree on a number, they can reduce the number of meritless orders filed while permitting parties with valid cases to attain a remedy.

Second, Republicans could change the requirements for granting a nationwide order or injunction. Currently, one judge can issue such an order. Instead, Congress could amend the law to require a majority vote from a three-judge district court panel before granting a nationwide order or injunction. Requiring multiple jurists to agree prevents a single judge, perhaps appointed by a president from the opposing party, from blocking an elected administration’s policies — remedying both parties’ concerns of unelected partisan judges’ power.

Finally, Republicans can strip the power of federal district courts to grant nationwide temporary restraining orders and injunctions against government actions and instead grant that power to circuit courts. This would expedite judicial review, allowing elected officials’ policies to be implemented faster. This also dilutes the power of sole jurists, as circuit courts decide cases in panels of three, mirroring the benefits of district court panels for nationwide orders and injunctions.

The Trump administration is justifiably frustrated with temporary restraining orders and injunctions, but any move to simply disregard such orders is constitutionally unsound. Instead of ignoring judges, Republicans must pursue reforms that benefit all litigants and uphold core constitutional norms.

Ryan Silverstein is a J.D. Candidate at Villanova University and a fellow with Villanova’s McCullen Center for Law, Religion and Public Policy.

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