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Individual Judges Legislating From the Bench: Should They Have the Power to Impose Their Will on the Entire Nation?

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WASHINGTON D.C.— For most of the nation's history, only the US Supreme Court made judicial rulings that could affect the entire country.

Now those nationwide decisions are coming more frequently from an individual judge or local federal courts.

"Voila!  The whole country has to follow this one judge, this one person in this one district.  It's outrageous," said National Review reporter John Fund.

Amy Swearer, a legal analyst at the Heritage Foundation, added, "This is absolutely a recent phenomenon.  For the first 150 years of our nation's judicial history, this was unheard of.  It simply wasn't even considered a possibility."

'I'll Grab The Power'
Fund told CBN News judges don't even have this legal authority, saying, "The principle seems to be 'I'll grab the power and if no one stops me, I'll keep using it.'"

"It seems to be completely inconsistent with the scope of the judicial power given to the federal courts through the Constitution," Swearer explained.
"It's gotten so bad, I think we really have to step forward and say, 'Time Out,'" Fund suggested. "It's really being abused and becoming an incredible sense of tension and anger in the country."

Swearer confirmed it's been a growing topic of concern among her colleagues in the legal community.

'These Injunctions are Beginning to Take a Toll'

So much so that Supreme Court Justice Clarence Thomas made it a point in his concurrence with the high court's recent ruling on President Trump's so-called "travel ban."  Three times local judges or courts stymied three different versions of the administration's "ban."

"These injunctions are beginning to 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," Thomas wrote.

In Fund's National Review article, Why Should a Single Federal Judge be Able to Make Law for the Whole Country?  he wrote of Thomas. 

"Why is it, he asked, that a single federal district judge can impose an injunction blocking a presidential executive order in all 50 states even if none of his colleagues (599 district judges) think it's a good idea?"

Blocking a U.S. President 23 Times

These judges or courts have ruled against the Trump administration almost two dozen times.
"23.  And you know, it's early this morning, so there might be another one coming along that I haven't heard about!" Fund joked.
The latest situation involves the separation of children from their immigrant parents seeking asylum at the border.  One judge not only ordered the Trump administration to reunite them. He's just ruled the nation can't deport those reunited families.
"A judge out West said 'no, you can't do that,'" Fund told CBN News.

Forum-shopping for Just the Right Judge

Swearer said opponents of President Trump's policies actually look for judges who'll see things their way.
 "It induces this forum-shopping to try to find the right judge because all it takes is one judge who disagrees with what could be hundreds of other judges," Swearer explained.

'Legally and Historically Dubious'

Justice Thomas hinted that he at least has had it, writing, "Universal injunctions are legally and historically dubious.  If federal courts continue to issue them, the Court is duty bound to adjudicate their authority to do so."
The Supreme Court can eventually overrule these judges case by case, but it takes time for their individual rulings to make it all the way to the high court.

 "Oh, about 18 months…two years, if you're lucky," Fund said.
For The People to Decide, Not a Single Judge

In his National Review article, Fund wrote what Justice Thomas said about these universal injunctions: "As used today, they 'boil down to a policy judgment' about how judges define the limit of a president's power.  But that judgment is supposed to spring from the Constitution, not from the preferences of a black-robed figure."
Swearer pointed out these matters that can affect national life should be decided by the American people.
"It's not up for the single courts or judges to decide 'well, this is a good policy so therefore it must be constitutional.'  It's up to the people by and through their elected representatives," Swearer insisted.

"The Supreme Court may be looking for a case or maybe looking for an opportunity to rule 'this has gone too far,'" Fund said.

There you have it.  Either the Supreme Court could rule on a case that would stop these individual judges from legislating from the bench or Congress can take action.  That would be a true balance of power as envisioned by America's founders.

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About The Author


As a freelance reporter for CBN's Jerusalem bureau and during 27 years as senior correspondent in CBN's Washington bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, government, and God’s providential involvement in our world. Strand began his tenure at CBN News in 1985 as an evening assignment editor in Washington, D.C. After a year, he worked with CBN Radio News for three years, returning to the television newsroom to accept a position as a senior editor in 1990. Strand moved back to the nation's capital in 1995 and then to