At a Senate Judiciary Committee hearing prior to the Congressional recess, Sen. Chuck Grassley (R-IA) questioned witnesses about his legislation taking on universal injunctions.
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00:00Five-minute rounds for a question. I'm going to start with Professor Bray. One criticism has been
00:05leveled against the legislative solution that I've proposed. It's been that it undermines the
00:13judicial branch's checks and balances on the executive branch. Do you think this is a fair
00:19criticism, and how would you respond? Thank you, Chairman Grassley. I don't think it's a fair
00:26criticism. I understand where it's coming from because the place of the courts as a check and
00:31balance on the executive branch and the legislative branch is very important in our constitutional
00:37system, but the way courts do that is by deciding according to the law in particular cases, and then
00:44that ripples out to other cases through precedent. That's the way they serve as a check without fear
00:50of favor following the law in the case, but they serve as a check as courts do by deciding cases,
00:57by giving remedies to the parties in the case. Mr. Panuccio, you have direct experience in the
01:06Justice Department dealing with non-party relief ordered by district judges. From your perspective,
01:14how significant is the problem of universal injunctions to the relationship between the
01:20executive and judicial branch? Thank you, Chairman. It's a great question. I think it's a very
01:25significant problem, and I think it is years of this practice are eroding the relationship between
01:30the Department of Justice and the executive branch and the courts, and I think that's happening across
01:34administrations. What effectively happens when a nationwide injunction is entered is that every
01:39single case, every single policy of the executive branch becomes an emergency that needs to move up the
01:45appellate ladder very quickly, and Supreme Court justices appointed by presidents of both parties
01:51have noted that the increase in the emergency docket is straining the court, it is straining its resources,
01:56and it is also reducing the quality of decision-making, and so you are seeing increased friction,
02:03and even in these district courts that issue nationwide injunctions, I think you're seeing very unfortunate
02:09comments made by some of the judges. There is a real tension between the jurists and the lawyers,
02:15and it is undermining the typical relationship between the department and the courts.
02:20Professor Bray, you touched on this a little bit in your opening comments. As administrations come and go,
02:31the problem of universal injunctions often appear partisan. You've been calling attention to this problem
02:38since the Obama administration, and it maintained a consistent position across four administrations now.
02:45From your perspective, is the problem of universal injunctions a partisan one, and then what's the solution?
02:54Thank you, Chairman Grassley. I do not believe it is a partisan problem, because it is a problem that has
03:01been hamstringing every administration since 2015. The end of the Obama administration, the first Trump
03:10administration, the Biden administration, and now the second Trump administration. So if you look at it over
03:16time, it's not a partisan problem. At any particular moment, undeniably, it is a partisan problem, and has a
03:23partisan valence. But legislation should not just be about the moment. Legislation should be about the long view.
03:29And I think the only fair way to do this is to knock out the weapon of the universal injunction for
03:36everyone. Take it away from Democrats, take it away from Republicans, because what it really strikes at
03:42is our ability to have democratic self-government and effective government action by the federal government.
03:48Mr. Pernuccio, in your written testimony, you said that it's important to pass legislation to make temporary
03:56restraining orders against the government appealable. The legislation I propose does that. Can you expand
04:06a bit more on your views here? What are temporary restraining orders, and why is it important that they
04:12be that they're appealable?
04:15Thank you, Chairman. It's an important question, because the latest trend in non-party relief appears to be courts
04:20entering what's called a temporary restraining order instead of a preliminary injunction. Now, in my experience as a
04:25litigator and in my years as a lawyer, a TRO was supposed to be a very short-term order from the court when it is
04:32impossible for the court to hold a hearing with both parties, and it might enter, for example, a 24-hour TRO
04:38until it can get a hearing on a preliminary injunction, an actual hearing with adversaries arguing the facts in the law to the court.
04:47But what we're now seeing is the courts are entering these TROs, which can under the rules last for up to two weeks
04:53and then be extended for another two weeks. And the issue is that the courts have interpreted TROs to not be appealable.
05:00Now, that may be a dubious interpretation, but that is the law of the land right now. And so it is effectively allowing
05:06district judges to insulate themselves from review. So it's bad enough that we have district judges saying, I am a ruler for the entire nation.
05:13But now they're saying they're not elected, so the people can't have a say. They're also saying that the appellate judges who are supposed to oversee my decisions,
05:21I don't want them hearing it either. So let me enter a TRO instead of a preliminary injunction or some other immediately appealable order.
05:28So I do think it is virtue of your bill, Chairman, that TROs or any other similar order would be immediately appealable.
05:35Senator Durbin, I've asked Senator Moody to take over for me while I go to another meeting.
05:41She's very strict.
05:43You proceed.
05:44Yeah.
05:45Thank you, Senator Moody.
05:47Thank you, Mr. Chairman.
05:49So, Professor-