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Thursday, September 13, 2018

Mark up of Injunction Authority Clarification Act

The House Judiciary Committee marked-up the Injunction Authority Clarification Act, the bill that would eliminate universal injunctions. No word on what happened, although it did start a conversation on the CivProProf Listserv.

In addition, Jeff Sessions announced litigation guidelines for DOJ attorneys in litigating the scope of injunctions. Interestingly, Sessions' statement shows he still does not understood the issue fully, because he twice rails about "single (unelected) district judges" issuing these injunctions. But the problem of universal injunctions improperly protecting non-parties has nothing to do with the number of judges on the case or the level of court. SCOTUS cannot issue (or affirm) universal injunctions any more than a district court can enter universal injunctions. SCOTUS only can affirm a particularized injunction and thereby prohibit enforcement of the challenged law against the named plaintiff, on threat of contempt; the judgment and injunction go no further. SCOTUS's decision may halt future enforcement against non-parties, but purely as a matter of binding precedent, not as a matter of the injunction itself.

Posted by Howard Wasserman on September 13, 2018 at 04:56 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Very important . Unbelievable , how many names it does bear , that issue of those injunctions . I have just learned about new one : " non party injunction " .

However , that announcement on that memorandum on litigation guidelines , bears baseless accusations against judges , for example :

For him ( Sessions ) we deal with " unelected federal district judge " who vetoes a " national policy " but , it is totally baseless and irrelevant . For , they can't be elected . For they are professional judges , how to be elected ?? And has got nothing to do with any policy of the executive branch . For , they don't veto any policy . They don't deal with policy . They deal with legality and constitutionality on certain policy .Since , A policy , that is illegal and unconstitutional ( at least fundamentally so ) is not a policy ! It is nothing . Can't exist !! So , anyway , they don't veto nothing and deal with any policy whatsoever .

If for example , the president , would pardon , for state offense , while according to the constitution , he can pardon only for federal offenses . Then such act , or policy , are or have " zero " validity by nature , and anyway , a federal judge , wouldn't neither veto it , nor nullify it even , but :

Would only declare of the non legality and unconstitutionality of an act , that substantially , fundamentally can't exist , has no existence , no validity . That's it !! And who would do it otherwise ??

This is the inherent duty of federal judge ( emphasizing : duty ) can't be otherwise . Must be blocked at once . Even Supreme court can't forbid a judge to do it . The issue , would be only the scope , but not the principle !! For , if the president , can't pardon for state offense for example , how would it matter , who are further , down the road , the next litigators , somewhere else ?

So , one can argue about the scope indeed , but not the inherent duty and principle , at least in severe cases .

And surly it doesn't erode the rule of law , for judicial review , is the essence or fundamental principle when dealing with rule of law . Otherwise , not the law rules , but a person . A person that can't be challenged . The courts have the main duty , to challenge ( for the benefit of the public and citizens ) the executive branch actions and laws or whatever . For , no one is above the law . What is the law , it is the inherent duty of courts and judge only to determine . No one else !! Or at least , as long as courts , not yet prevailed in it . But when they do prevail , they have the last say .


Posted by: El roam | Sep 13, 2018 6:38:09 PM

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