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Tuesday, October 11, 2016

Comparing Florida and Ohio federal court emergency decrees

In follow-up to a helpful clarifying comment to my previous post, my reference to the Ohio case was not to suggest that the federal district judge there was correct. On the contrary, as noted, the Sixth Circuit definitely rebuked the district judge for issuing the TRO in that situation. My point in mentioning the Ohio case was to note that, even if the federal court in Florida is correct in issuing the TRO there, it is necessary to recognize the limits to that federal judicial power. In my mind, the Ohio case reflects a failure to recognize those limits at the district court level. Obviously, emergency cases by their very nature are incredibly fast-moving in intense and difficult situations. The instinct on the part of the federal judge, in my view, should not be "what can I do?" or even "how are voters hurt?" but "what has the state government done unconstitutionally wrong that requires my intervention, since other institutions of government have shown themselves to be inadequate to handling the emergency in a constitutionally appropriate manner?" The Florida case is an important one because arguably federal court intervention was indeed warranted, as the district court itself determined, even under this fairly stringent test.

Posted by Edward Foley on October 11, 2016 at 09:04 AM | Permalink


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