In the Book of Genesis, we recall the story of Abraham and his son Isaac: God instructed Abraham to take his young son to the Valley of Moriah to be offered as a burnt sacrifice on a mountaintop. Were this event to happen today, Isaac, understanding the irreversibility of his own sacrifice, might well make an appeal for injunctive relief so that God’s decision might be reviewed by, well, God. The injunction, if granted, would allow time for God’s decision to be thoroughly vetted prior to execution (literally).
While Isaac’s story ended with God sparing him at the last minute, he certainly would suffer “irreparable harm” if he had been executed prior to the reversal of God’s initial decision. This would be grounds for his seeking injunctive relief — and it is the grounds by which injunctive relief is supposed to be sought and granted in the American legal system.
Yet that is not the way injunctive relief is being granted today. A number of partisan judges apparently will do anything to fight the administration of President Donald Trump.
Since he has taken office, the president has had over 25 injunctions leveled against his actions by various courts. Though his complaints give the Ninth Circuit Court of Appeals much of the attention, judges interpreting the rule of law have been bountiful since 2017.
The role of court-issued injunctions, or injunctive relief, is not widely understood by the general public. Often when it is reported that a judge has just “ruled against the president” in issuing an injunction, it is reported as if the administration has lost its case in court. That, in fact, is not correct.
Injunctions serve the purpose of making certain that a particular action either stops or continues while the litigation process around which it is centered plays out through the courts. Provisions for injunctions are commonly found in business agreements, particularly in non-disclosure agreements, where one party concedes that if the agreement is violated, the disclosing side could suffer “irreparable harm” between the time a claim is filed and when it ultimately is adjudicated. The other party acknowledges that, in such a case, injunctive relief will be sought.
As a practical rule, injunctions are supposed to be issued when a judge sees the potential irreparable harm and estimates that the case has a reasonable chance of being heard without being thrown out early or having no chance of success.
Now consider the recent action by U.S. District Judge Jon Tigar in San Francisco, who issued a temporary injunction against President TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE’s order to deny asylum requests for immigrants attempting to enter the United States improperly. That injunction stays in place until Dec. 17 when a longer-term injunction will be discussed at a hearing.
In September, Republicans on the House Judiciary Committee introduced the Injunctive Authority Clarification Act to address the problem of a single or small group of federal judges halting governmental process through decree. Something must be done. The strategy of these politicized judges is to let the actions of our duly-elected president to simply “time out,” as would an app on your smartphone that cannot open in an appropriate amount of time.
People who are fans of the NBA often remark that you don’t need to turn on a game until about 5 minutes remain in the fourth quarter; everything that happened up until then is just about positioning. Winning the game almost always comes down to the last few minutes. This is what our court system has turned President Trump’s actions into. No matter what he does, you can be certain it will be challenged immediately in court — in a venue where the plaintiff knows a judge likely will grant injunctive relief.
That means we essentially are waiting for everything our president does to reach the Supreme Court before it can take effect. The first three-and-a-half quarters of the presidential game don’t count.
The farce of this occurred a couple of weeks ago when U.S. District Judge Timothy Kelly granted CNN and White House correspondent Jim Acosta a temporary restraining order (effectively the same as an injunction) to allow Acosta back into the White House press room while CNN’s lawsuit against the administration proceeds. CNN could have replaced him with another reporter, and the idea that Acosta would suffer “irreparable harm” in the interim is ludicrous on its face. That’s satire, not law.
A system of law over disorder balances precariously upon the willingness of a people to accept its legitimacy and fairness. This cadre of activist judges is causing many people to seriously question both.
Where do citizens turn to be granted an injunction against injunctions while the case for America’s future is being heard by the people?