//  4/21/17  //  Quick Reactions

It isn't very often that Americans have occasion to insist that one of our 50 states really is a state.  The question just doesn't come up very often these days—unlike some parts of U.S. history, when questions like this were frequent and almost invariably laced with notes of prejudice and colonialism.  So I was surprised when I checked Twitter yesterday and discovered hundreds of tweets indignantly defending Hawaii's statehood.  Who, I wondered, had prompted this outpouring of #Hawaii outrage?

Attorney General Jeff Sessions, of course.  Not all that surprising.  Speaking about the revised travel ban, he told a conservative talk radio host: “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power."

There's a lot to say about this comment, which downgraded Hawaii from full statehood to "island in the Pacific" status.  There's the history of American mistreatment of Hawaii (a tale soaked in racial prejudice and imperialist policy).  There's the impropriety of the Attorney General treating one of the 50 States he is sworn to protect as through it were just a random island somewhere in the god-forsaken ocean.  There's the unsubtle hint that Judge Derrick Kahala Watson of the U.S. District Court for the District of Hawaii is uniquely unqualified to decide this issue because of where he sits (or lives).  There's the question whether Sessions remembers voting "AYE" to confirm Judge Watson and vest him with the power to decide cases or controveries under Article III of the U.S. Constitution.  There's the failure to mention a near-identical order issued by Judge Theodore Chuang, who sits in Maryland, which bolsters the hint that it's especially bad that a Hawaii judge—rather than a real, American judge—ruled this way.

And there's the failure of grade school geography: the State of Hawaii consists of a chain of islands.  While one of them is, in fact, called "Hawaii," Judge Watson is based in Honolulu, on the island of Oahu.  These are things the Attorney General should know.

But there's also an important legal point here, which shouldn't get lost in the mix.

The heart of Sessions's objection is that a single federal judge could issue a national injunction against an important policy issued by the President of the United States.  Given how the travel ban and its second iteration have fared in federal court, it's easy to see why Sessions now feels this way.  It must be frustrating for all those blue state judges to keep striking down his policies.  (Though, in fairness to those judges, the policies are unconstitutional and should be invalidated.  Also, it's not clear how a limited, state-by-state injunction would even work for the travel ban.) 

But there's no indication that Sessions felt this way when federal judges, mostly based in Texas, handed out national injunctions like candy during the Obama Administration (in fact, it's a near certainty he had opposite feelings).  Indeed, just consider some of the major Obama policies blocked by national injunctions:

  • Obama's landmark deferred action program relating to undocumented migrants (DAPA and DACA)
  • A critical Department of Labor overtime regulation making ~4 million workers eligible for overtime pay
  • The Department of Education's "Dear Colleague" letter about gender identity and public school restrooms
  • A Health & Human Services regulations that forbade "discriminating on the basis of ‘gender identity’ and ‘termination of pregnancy’” under Obamacare

In many respects, it was conservative states and right-wing cause litigators during the Obama Presidency who made the national injunction into what it is today.  In these efforts, they were invariably supported by the national Republican Party.      

This isn't to say that national injunctions are unproblematic.  Professor Samuel Bray has raised serious concerns about fairness, forum shopping, judicial decisionmaking, and the proper scope of judicial authority (see also this article).  

But the notion that Jeff Sessions, in particular, should be heard to complain about a single federal judge enjoining the travel ban is hard to stomach.  His own team spent the past eight years causing havoc for President Obama's agenda by urging friendly hard-right judges deep in Red State territory to issue sweeping injunctions.  If Sessions has a problem with opponents of the administration seeking national injunctive relief, he can thank his own conservative allies for amassing a veritable wall of precedent that will now be used against him.  Federal judges reflect the geographic diversity of our nation; judges in "an island on the Pacific," just like good-old-boy judges in Texas, have the right and duty to vindicate the Constitution and issue orders to that effect.

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7/1/19  //  Commentary

The Roberts Court has a constitutional blindspot. It consistently ignores the many parts of the Constitution that help preserve and protect a vibrant democracy open to all.

Gundy, Raich, and Faustian Bargains

6/26/19  //  In-Depth Analysis

In Gundy, the liberal justices' desire to protect the administrative state led them to uphold an exceedingly punitive law. But this was a bad bargain. The conservatives will still reinvigorate the non-delegation doctrine, and a terrible law will still remain on the books.

Gregory Lipper

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6/25/19  //  Commentary

Will progressive candidates for national office be asked about judicial nominations and will these candidates make the federal judiciary a top-tier message? On paper at least, there are reasons to think progressive candidates will get it right this time.