▶ 0:14:39Chair Grassley: Welcome, everybody. They are all here now. Thank you for the hard work you put into this to bring this issue to the senate's attention. I want to give a quote.
▶ 0:15:00Chair Grassley: "it just can't be right that one district judge can stop a nationwide policy in its tracks and leavitt stopped for years that it takes to go through the normal process." those words are from justice kagan, said during a speech three years ago. I happen to agree with her.
▶ 0:15:29Chair Grassley: Our hearing today goes by the title of "rule by district judge ii exploring legislative solutions to bipartisan problems of universal injunctions." I hope that we can continue discussion from our hearing on the same topic in 2020 and focus on some legislative solutions.
▶ 0:16:01Chair Grassley: For a number of years, but particularly the last months, we've seen increasingly sweeping orders from individual district judges that dictate national policy.
▶ 0:16:16Chair Grassley: These orders called universal injunctions direct the government to take or not take action with respect to persons who aren't even before the court. Though our founders saw an important role for the judiciary, they didn't design a system that made judges national policymakers.
▶ 0:16:45Chair Grassley: They adopted a constitution that strictly limited courts to exercising power of the words that are in the constitution to cases or controversies. Sweeping universal injunctions defy nearly two centuries of historic precedent.
▶ 0:17:07Chair Grassley: For the first 175 years of our history, universal injunctions were unheard of they been extremely rare until the last decade. Now you can barely read the news without learning of a new district judge issuing an order that covers all 93 judicial districts in the country.
▶ 0:17:34Chair Grassley: It's one thing for a district court to call for relief to parties before it. That is what a judge can and should do. A judge has authority to resolve a case or controversy and sometimes that will include holding that a statute or executive action is unlawful.
▶ 0:18:00Chair Grassley: It's another thing, however, altogether for a single judge to order the government to act with respect to people who aren't even before the court. That reaches far beyond the legitimate authority of the court and becomes policymaking. This is something none of us democratic or republican should want judges to do.
▶ 0:18:27Chair Grassley: Right now there are more than 600 active district judges, more than 1000 if you count senior judges. Any one of them can effectively veto national policy. In one sense, district judges have more power than a supreme court justice who must vote with their colleagues before stopping or compelling national government action.
▶ 0:18:57Chair Grassley: This creates than a strong incentive for reform shopping according to 2024 harvard law review study, nearly all universal injunctions against the first trump administration and the biden administration were issued by judges appointed by the opposite political party. This places tremendous strain on the judicial system.
▶ 0:19:27Chair Grassley: Universal injunctions are also unconstitutional. Article three of the constitution tasks the judicial branch with deciding, as you've heard me say, cases or controversies. The supreme court has long required judges to engage in detailed analysis to ensure that they have authority over a case.
▶ 0:19:55Chair Grassley: They must determine that a party before them has been injured, that the inquiry is traceable to a defendant's conduct, and that the court can do something to remedy it. Now, judges routinely ignore these constitutional limits and issue orders directing government action for the entire country.
▶ 0:20:22Chair Grassley: In february, a judge issued an order requiring $2 million in usaid funding to be paid out within 36 hours. The vast majority of people never even sued. The supreme court had to instruct the district court to narrow its ruling significantly.
▶ 0:20:50Chair Grassley: Monday district court in california issued an order involving seven plaintiffs and an association that advocates for them, instead of just deciding the case before them, the judge helped the policy for approximately 350,000 venezuelans under the temporary protected status program.
▶ 0:21:15Chair Grassley: The district judge had no with already over people who went before the court, but single-handedly vetoed the policy that americans specifically elected president trump to enact. Some people may ask if universal injunctions are eliminated, how can plaintiffs get relief? Especially in cases where it is hard to represent every person affected by law or order.
▶ 0:21:48Chair Grassley: The federal rules of civil procedure provide a solution. Class action. This is a powerful legal tool to offer comprehensive relief and also contains protections to reserve the rights of parties that are represented in this unusual way. Universal injunction shortcuts all of that.
▶ 0:22:12Chair Grassley: Eliminating universal injunctions still preserve the important role of judiciary and a system of checks and balances. Class actions remain intact, and judges retain their awesome power to protect litigants before them from unlawful action.
▶ 0:22:35Chair Grassley: But when a single judge can override the rankings to set national policy, the checks and balances of our country and constitution are thrown off. We should in turn -- we should instead return to the framework established under the constitution.
▶ 0:22:57Chair Grassley: District courts decide the case before them, the appellate courts set precedent for all courts below them, that is the appropriate check on other coequal branches of government. Universal injunctions turn the whole thing on its head. Most of us in this room have at various times supported or opposed universal injunctions.
▶ 0:23:25Chair Grassley: My fellow republicans and I sometimes like them when there is a democratic president, and my democratic colleagues quite like them right now even though they criticized them a few months ago under president biden. Too often we accept politics over principal, but the truth is that we all know this isn't how government and the judiciary should operate.
▶ 0:23:56Chair Grassley: It is past time to address this issue. The supreme court can and should fix this problem. Unfortunately, they sit on their hands. If they won't act, congress must act. I propose legislation to fix this problem in think it is a good solution because like all good compromises, it probably leaves everyone a little unhappy.
▶ 0:24:22Chair Grassley: We all have to agree to give up universal injunctions as a weapon against policies we disagree with, the damage it causes to the judicial system and our democracy is really too great. I hope today we can have a productive discussion about how to solve this problem that has plagued and frustrated democratic and republican presidents alike.
▶ 0:24:51Chair Grassley: I'm going to introduce now are two majority witnesses and if senator durbin will introduce the democrat. Professor samuel bray is a john n. Matthews professor of law at notre dame. He is a leading expert on the law of remedies and the law of equity, and he's been cited by many supreme court justices including justices thomas, gorsuch, kavanaugh and jackson.
▶ 0:25:23Chair Grassley: He's also been cited by both the trump and biden administration's. Professor bray has written extensively on the topics of universal injunctions including his harvard law article that goes by the title "multiple
▶ 0:25:40Chancellors: Reforming the national injunction." professor bray is an elected member of the american law institute and is an advisor on the restatement of tort remedies. Jesse panuccio is a partner at the firm appellate practice group.
▶ 0:26:12Chancellors: Before that, he served as governor rick scott's general counsel. He's also a member of the administrative console of the united states. I'm very interested in hearing both of your remarks today and thank you very much for coming. Senator durbin.
▶ 0:26:31Sen. Durbin: I want to thank you particular for comment was in the you said "you can't impeach a judge just because you disagree with them." it shouldn't have to be said but I hope every member of this committee will make that equal here today. Indeed in our two and 50 year history a judge has never been impeached because a president disagreed with that judge's ruling.
▶ 0:26:57Sen. Durbin: But we do need to say so loudly and clearly as you did, as president and copresident elon musk demanded the impeachment of federal judges who would rule against the administration. House republicans have rushed to kiss the ring. So far filing articles of impeachment against six federal judges and counting.
▶ 0:27:18Sen. Durbin: The dangerous, irresponsible conduct of the president has resulted in a truly disturbing increase in threats against our federal judges. They represent an existential threat to judicial independence. During my time at this committee had met with several judges whose lives have been threatened simply because of their service on the bench.
▶ 0:27:43Sen. Durbin: Some of these threats have turned into acts of violence that have taken the lives of judges family members including spouses, parents, and children. In effect at my state in the northern district. I've said it many times before in this committee and I want to say it again here. Violence and threats of violence from the right or the left on the political spectrum are never, never acceptable.
▶ 0:28:09Sen. Durbin: When I was chair of this committee I repeatedly condemned threats against republican justices and judges would pass bipartisan legislation to improve security for the bench. We must speak with one bipartisan voice on this issue. Last week my staff spoke with several judges about judicial security. Every single judge said exactly the same thing. The threats have become more frequent and more disturbing.
▶ 0:28:36Sen. Durbin: All these judges were careful not to comment on political issues, they noted that recent rhetoric against judges has contributed to increased threats to judicial security. One jue likened it to adding fuel to a bonfire. She noted her fear that in time it would become a wildfire, out of control. We must avoid that outcome.
▶ 0:28:58Sen. Durbin: It will require the president and his fellow republicans including members of this committee to work together with the democrats to lower the temperature and end the attacks on judges and judiciary. This hearing is about nationwide injunctions. It's impossible to separate hearing from president trump's record in office. The reality is that we would not be holding this hearing if the president took a different approach to the rule of law.
▶ 0:29:24Sen. Durbin: We further repeated complaints from republicans about the number of injunctions issued against this president compared to other presidents. Why so many? They ignore the fact that this president has issued more than 100 executive orders, the most by any president at this point in his term in at least four decades. Many are clearly illegal. Take the president's executive order to end reference citizenship.
▶ 0:29:53Sen. Durbin: Three federal judges in three different states have blocked this order, including two judges appointed by republican presidents. And three separate appeals courts have refused to lift these injunctions.
▶ 0:30:10Sen. Durbin: Judge john cowan are who was appointed by president ronald reagan with the first judge to block the order which he called "blatantly unconstitutional." the reality is that the number of injunctions issued against the first and second trump administration are evidence of a president who is clearly violating the law. That being said, I'm happy to discuss the legal implications of nationwide injunctions.
▶ 0:30:35Sen. Durbin: As I've said many times before, we cannot have one set of rules for republicans and another set of rules for democrats. Any legislation on this topic must be based on merits, not political indians. Professor bray, recall a decision by a texas court about 10 years ago that is near and dear to my heart and is based on the dream act which I introduce a long time ago.
▶ 0:31:10Sen. Durbin: I recall when the issue came before the court in texas and the judge issued a universal injunction to enforce it. I would add as the chairman has noted, I was cheering for my republican senators for texas for that decision. Some of them today see the issue differently in the context of a president of their own party.
▶ 0:31:34Sen. Durbin: I cannot support legislation that does not take reality into consideration, only if we have an effective date that makes sense what I consider making any changes myself. In 1776, a pamphlet appropriately titled common sense, thomas paine famously wrote in america, the law is king. For as an absolute governments, the king is the law.
▶ 0:32:03Sen. Durbin: So in free country the law ought to be king and there ought to be no other. Today we will discuss the use of nationwide injunctions but there can be no debate that in america, the law is king as it has been since our founding. The president is not a king. Not even this president, as much as he might wish otherwise. He's bound by the decisions of our courts, just like every other american.
▶ 0:32:30Sen. Durbin: The president and his allies are welcome to disagree with judicial decisions that block as illegal actions from threatening or intimidating our judges. But we cannot stand idly by and let a threat to the constitution and separation of powers. Professor stephen vladefck is a professor of federal courts at georgetown university of law.
▶ 0:32:59Sen. Durbin: He is a nationally recognized expert on the federal courts. The supreme court, national security law and military justice. He's also highly regarded as an appellate advocate having presented several cases before the U.S. supreme court for various civilian and military courts. Graduated from amherst college.
▶ 0:33:24Chair Grassley: Would be please rise for the oath. Do you swear that the testimony you are about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you god? All of you have answered affirmative. Please sit down and we will start with you, professor bray and then Mr. vladeck.
▶ 0:33:54Mr. Bray: I'm honored to speak with you today. What is wrong with universal a policy dimension and a constitutional dimension. The ordinary way the federal courts work is that someone challenges a law in one circuit and whether the challenger wins or loses, the decision of the circuit court would be a precedent for that circuit.
▶ 0:34:16Mr. Bray: Justin -- justice kagan call this the normal process allowing multiple courts to consider a question before the supreme court is eventually asked to resolve a disagreement. It takes some time, but not thousands of suits. This is how questions are supposed to be settled in the federal courts. Deliberately, collectively and with appellate proceeding.
▶ 0:34:38Mr. Bray: But universal injunctions with lightning appeals straight to the supreme court have accelerated judicial decision-making, leading to rushed and suboptimal decisions. The universal injunction reduces the chance that multiple circuit courts would consider a legal question. It is a end run around class actions, an end runner rent issue preclusion.
▶ 0:35:03Mr. Bray: It is inconsistent with basic principles about the presidential authority of a district court, and it has an asymmetric effect. 100 people challenging federal policy and if the federal government wins, 99 of the cases, it won't matter as long as one plaintiff wins and gets universal injunction. The government has to run the table.
▶ 0:35:27Mr. Bray: These policy consequences are partly about the universal injunction and partly about how it interacts with heightened judicial polarization and extreme form shock. That's a point in which I agree with my friend professor vladek. He is right the challenges to the biden administration and single judge divisions were egregious problem.
▶ 0:35:53Mr. Bray: An where I think he is wrong to suggest that it would somehow be rash for congress, at long last, to address the severe policy problems caused by universal injunctions. If I may, this is the fourth time that I've testified about these problems over the last seven years. There's also a constitutional dimension. A final judgment binds the parties and a court order must be followed. No one is above the law.
▶ 0:36:22Mr. Bray: But judgments and orders have this kind of authority in our system because of the principle that courts act as courts, deciding a case for the parties and giving remedies to the parties. Once a federal court decides a case and gives a remedy to the parties and the people they represent, there is nothing left for it to do as a court. There is no constitutional authority for the judge to go on and decide the cases of other people, or to give remedies to other people not before the court.
▶ 0:36:55Mr. Bray: The universal injunction is emphatically not a partisan problem. Universal injunctions are stopping almost every major initiative of the second trump administration just like all the democratic and republican administrations in the last 10 years. They are a bipartisan scourge. At any particular moment of course, there is a partisan valence to solving the problem the universal injunction. But that will not last.
▶ 0:37:26Mr. Bray: There are no permanent majorities. In the long term, the real loser from the universal injunction is our democracy. The republican or democratic bias oscillates over time but does not change the universal injunctions bias against any effective government action. A legislative solution should be laser focused on nonparties.
▶ 0:37:53Mr. Bray: They should apply to temporary restraining orders and under the initiative procedure act. It shouldn't just be guardrails and universal injunctions. Only one proposed bill fits these principles and that is the chairman's bill. This bill would take the universal injunction and bury it six feet under. No evasions. No circumvention's. No substitutes. No outs for republicans, no outs for democrats.
▶ 0:38:23Mr. Bray: The federal courts are and should be a bulwark against unconstitutional or illegal actions taken by other government actions. They should hold the president accountable regardless of whether the president is republican or a democrat. At the federal court should perform that essential function
▶ 0:38:40As Courts Do: I deciding particular cases, brought by particular parties, with remedies that control the relationship between these parties. The last 10 years have seen a fundamental transformation of the relationship between the judicial branch and the executive and legislative branches. It is past time to reset that relationship.
▶ 0:39:08Mr. Panuccio: Thank you, Mr. joan. I'd like to make three points about how we got here and then offer some thoughts on the way forward. First, any discussion about nationwide injunctions has to be put into the broader context of the unprecedented moment we find ourselves in.
▶ 0:39:25Mr. Panuccio: We have a present -- president running rush on legal constraints with the ruby never seen in a justice department engaged in highly partisan and ethically dubious behavior and reports that we've never seen from work is working for the federal government. Even this committee seems to be of the view that the central problem in this case is the relief federal judges are imposing, not a lawlessness we are imposing it against.
▶ 0:39:49Mr. Panuccio: At the risk of bringing data to a mud fight, the reality is not that a handful of handpicked judges appointed by democratic presidents are using nationwide injunctions. As of last friday, 46 cases in which district judges have locked trump policies have involved rulings by 39 different judges appointed by five different presidents of both parties, including nine cases for dissing judges appointed by republic and presidents.
▶ 0:40:20Mr. Panuccio: Many of those rulings have included nationwide relief, but not all of them. Against that backdrop it seems to me this committee should be especially careful not to react to underinformed calls and the president and his supporters and rather to be focused on preserving the relationship between judicial independence and additional account ability, rather than taking steps that might undermine it. Second, it's worth underscoring that federal courts have in fact long and routinely issued relief that benefits nonparties and/or has nationwide effect.
▶ 0:40:49Mr. Panuccio: My friend professor bray already referred to vertical stare decisis, and even justice gorsuch on the supreme court has voted in favor of them at least 11 times since 2020. More than that, anytime a court invalidates a state or federal law on its face, rather than as applied to the specific plaintiffs, it is necessarily providing relief to nonparties, since the lock and the longer be enforced against anyone.
▶ 0:41:17Mr. Panuccio: That's not only well-settled, there's no serious argument that it's beyond the federal courts' powers. And even nationwide injunctions have virtues that other forms of relief do not. Consider the prepreg citizenship cases. Do we really think that parents should have the challenge that policy one child at a time? Would it make any sense at all even on a broader scale for the scope of preferred citizenship to differ in arizona, new mexico and texas simply because those three states fall into three different circuits?
▶ 0:41:44Mr. Panuccio: Of course a nationwide class-action could solve that problem, but it does not strike me as a coincidence that the rise in nationwide injunctions came shortly on the heels of the supreme court's evisceration of nationwide class certification. Chairman grassley's bill alludes to class actions as a preferable vehicle, I could certainly endorse that idea, but tellingly it does nothing to make them more broadly available even the congress on question of the could do so.
▶ 0:42:09Mr. Panuccio: Third, it seems to be deeply myopic to talk at the rise of nationwide injunctions without talking about shifts in behavior that have dramatically increased in the impact of such rulings, several of which were already referred to by professor bray. Don't take my word for it, though. In the last three supreme court terms, we've received five rulings from the justices reversing nationwide injunctions issued by handpicked judges in texas and louisiana and affirmed by the fifth circuit, to get the plaintiffs in all five cases lacked article iii standing.
▶ 0:42:41Mr. Panuccio: There's no question that nationwide injunctions have been abused, but the abuses in those cases are not about the scope of the relief the court are issuing, it's only exacerbated by a. And critically those would not go away even if nationwide injunctions were narrowed or eliminated. Meanwhile the cost of limiting nationwide injunctions would be less of an ability to restrain executive lawlessness at a moment in american history in which that power is proving vital. So what is to be done?
▶ 0:43:12Mr. Panuccio: If the member's real concern is that the president should have the authority that courts are denying to him, seems to me that they could consider legislation to provide those authorities rather than legislation that would prevent courts from fully and effectively enforcing existing legal constraints. Second, insofar as this committee wants to focus on procedural reforms, it should focus on reducing the ability of the visual parties to manipulate the judicial system, not on limiting the ability of courts to hold the executive branch accountable, especially in an age in which congress has proven less able to do so itself.
▶ 0:43:43Mr. Panuccio: Finally the committee's true goal is to improve functioning of the judicial system at large, and not just to maximize short-term partisan political advantage, now that a republican is in the white house. The committee to follow the model of other legislation and have any reforms go into effect on or after january 20, 2021.
▶ 0:44:04Mr. Panuccio: Otherwise the message this committee would be sending is that the goal is to instantly have meaningful judicial review, a message I can't imagine this committee wants to send and one that the separation of powers, to say nothing of the rule of law itself, simply can't afford. Thank you again for the invitation to testify and I look forward to your questions.
▶ 0:44:29Prof. Panuccio: Thank you for the opportunity to testify today. I note at the outset of the views expressed in my testimony are entirely my own and not those of my law firm or its client or any institute with which I am affiliated. Today the committee considers a recurring problem in our federal judiciary, the propriety of nonparty relief is a question and part of our constitutional republic. Is a question that asks whether I federal courts exist to decide cases, or to advance causes.
▶ 0:44:57Prof. Panuccio: It is a question about a practice that renders every judge a king and every court supreme. The statistics show the issue is not confined to one president, one party, or a particular policy. According that the department of justice across ministry and has consistently argued against relief beyond the parties case.
▶ 0:45:17Prof. Panuccio: Just a few months ago, president biden's universal remedies are inconsistent with long-standing limits of medical relief and the power of article three courts and impose a severe toll on the federal court system." and jurists on both sides of the divide have recognized the problem as justice kagan stated in a 2020 speech, "it just can't be right that one district judge can stop nationwide policy in
▶ 0:45:47Prof. Panuccio: Its tracks and leave it stop for the years that it takes to go through the normal process." before I highlight the many problems with nonparty relief, that we offer one concrete example. In 2017 thedoj imposed nuclear emissions on law enforcement , requiring purchase bidding look at jurisdictions to cooperate with federal law enforcement to remove illegal aliens who had committed serious crimes. The city of chicago sued, alleging the conditions were unlawful.
▶ 0:46:15Prof. Panuccio: The district court issued april neri injunction, but rather than stopping at providing complete relief to the party before it, the court joined the grand conditions nationwide. Cases are pending in other districts without anything requiring nationwide relief. Yet the district judge with one line of dubious reasoning exerted power over every other grantee in the country including those who didn't want it and supported the conditions.
▶ 0:46:42Prof. Panuccio: And exerted power and precluded any other judge from a contrary conclusion. The second circuit court of appeals would later find these conditions awful, highlighting how incredible it was for a loan district judge in chicago to dictate the result in new york and everywhere else. With that example in mind, let's highlight a few of the problems with nonparty relief. The first problem with nonparty injunctions is as justice thomas has explained, there are legally and historically dubious.
▶ 0:47:12Prof. Panuccio: The constitution grants federal courts the power to hear cases and controversies which has long interpreted as the power to render judgment or decree upon the rights of litigant parties, not nonparties. Some argue that nationwide nonparty relief is a necessary check on the ever growing power of the executive branch, but the issue is not to fix one constitutional distortion by creating another.
▶ 0:47:35Prof. Panuccio: Rather, if the concern is with the power of the ministered estate, policymaking muscle, not to transform the judiciary into a third palooka branch. The second problem with nonparty injunctions they undermine norms, rules and structures that govern our multi-court, multitier legal system. One such legal norm the concept of percolation.
▶ 0:48:00Prof. Panuccio: There are several legal provisions and practices that reflect this preference but I will highlight just one, and is the U.S. constitution, establishing one and only one supreme court and such inferior courts as congress may establish. In this system, one district court does not bind another and one circuit court does not bind another. It is only supreme court judgment that are binding on all federal courts.
▶ 0:48:24Prof. Panuccio: Nationwide nonparty relief effectively has any of 1000 district judge is wielding the same supremacy at the supreme court and stripping from other quick the efficacy of the judgments. The nationwide nonparty injunction that simultaneously makes every court supreme and every court a potential nullity. The third problem with nonparty injunctions is they are undermining public confidence in federal courts. History has shown the american people have stubborn tendency for the rules that govern their lives.
▶ 0:48:53Prof. Panuccio: Humility than is a necessary judicial virtue for life tenured judges who have a share of the ruling power for life, and cannot face elections by the people of the other branches. In recent years the third branch has lost all sense of itself. It will either rediscover judicial humility or lose its support of the people and forced a national constitutional crisis. Because the supreme court appears unwilling or unable to rein in its own branch, it is time for congress to act.
▶ 0:49:23Prof. Panuccio: Three latest data seem advisable. First, commerce and amend the necessary statutes in a clear courts do not have the power to grant belief to nonparties. Second, it appears the latest trend in relief is for district courts to enter temporary restraining orders. And third and finally, even if congress enacts the fixes, it is likely that judges who believe and nationwide power will shift to granting nonparty injunctions to certified classes.
▶ 0:49:51Prof. Panuccio: Congress should consider imposing mandatory jurisdictions for any injunction, or civil order that the attorney general certifies as a national emergency. Thank you and I look forward to taking questions.
▶ 0:50:00Chair Grassley: We will have five-minute rounds for questions. Am going to start with professor bray. One criticism has been leveled against the legislative solution that I've proposed, it has been that it undermines the judicial branches checks and balances on the executive branch. Do you think this is a fair criticism, and how would you respond?
▶ 0:50:23Prof. Bray: Thank you chairman grassley. I don't think it is a fair criticism. I understand where it is coming from because the place of the courts as a check and balance on executive branch and legislative branch is very important in our constitutional system, but the way courts do that is by deciding according to the law in particular cases, and then that ripples out to other cases through proceeding. That is the way they serve as a check without fear or favor, following the law in the case.
▶ 0:50:55Prof. Bray: But they serve as a check as courts do by deciding cases, by giving remedies to the parties in the case.
▶ 0:51:02Chair Grassley: Mr. panuccio, you have direct experience in the justice department dealing with nonparty relief ordered by district judges. From your perspective, how significant is the problem of universal injunctions to the relationship between the executive and judicial branches?
▶ 0:51:23Mr. Panuccio: It's a great question, I think it is a very significant problem and I think it is years of mispractice between the department of justice and the executive branch and I think that is accurate across administrations. What effectively happens when a nationwide injunction is entered every single case, everything the policy becomes an emergency that needs to move up the appellate latter very quickly.
▶ 0:51:50Mr. Panuccio: And supreme court justices appointed by president with parties have the increase in the emergency docket straining the court, straining its resources, and is also reducing the quality of decision-making and seeing largely increased friction and even district that issue nationwide injunctions, I think you are seeing very unfortunate comments made by some of the judges between the jurists and the lawyers and it is undermining the typical
▶ 0:52:21Mr. Panuccio: Relationship between the department of the courts.
▶ 0:52:24Chair Grassley: Professor bray, you've touched on this a little bit in your opening comments. As administrations come and go, the problem of universal injunctions often appears partisan. Thief and calling attention to this problem since the obama administration and have maintained a consistent position across four administrations now.
▶ 0:52:48Chair Grassley: From your perspective, is the problem of universal injunctions a partisan one and what is the solution?
▶ 0:52:57Prof. Bray: I do not believe it is a partisan problem. It is a problem that has been hamstringing every administrations in 2015. The obama administration, the first trump administration, the biden administration and now the second trump administration. If you look at it over time, it is not a partisan problem. At any particular moment undeniably it is a partisan problem.
▶ 0:53:27Prof. Bray: But legislation should not just be about the moment. Legislation should be about the long view. The only fair way to do this is to knock at the weapon of the universal injunction for everyone. Take it away from democrats, take it away from republicans. Because what it really strikes at as our ability to have an effective government action.
▶ 0:53:56Chair Grassley: It's important to pass legislation to make temporary restraining wonders against the government about the legislation I proposed. Can you expand a bit more on your views here, what are temporary restraining orders and why is it important that they are appealable?
▶ 0:54:17Mr. Panuccio: It's an important question because the latest trend in nonparty relief appears to be what is called a temporary restraining order instead of a culinary injunction. In my experience as a litigator and my years as a lawyer, it was supposed to be a very short-term order from the port but it is impossible for the porthole hearing parties that might enter a 24 hour tro until we can get a hearing on a culinary injunction, an actual hearing
▶ 0:54:47Mr. Panuccio: With adversaries arguing the facts in the law to the court. But what we are now seeing is the courts are entering these which can last for up to two weeks and then the extended for another two weeks. In the issue is that the courts have interpreted tro's to not be appealable. So is effectively allowing district judges to insulate themselves.
▶ 0:55:12Mr. Panuccio: It is bad enough that we have district judges saying I am ruler for the entire nation, but now they are saying they are not elected so people can have a say, they are also saying that the appellate judges who are supposed to oversee my decisions, I don't want them hearing either. So let me enter a tro. So I do think any other similar order would be immediate effective.
▶ 0:55:39Chair Grassley: You will need to take over for me while I code another meeting. Thank you you, senator moody.
▶ 0:55:49Sen. Durbin: Thank you Mr. chairman. Professor bray, I'm going to ask you to stick with me for a second here and talk about possibilities. Along comes president trump and decide that the following sentence doesn't make sense.
▶ 0:56:08Sen. Durbin: 14th amendment, all persons born or naturalized in the united states are subject to the jurisdiction thereof are citizens of the united states in the state in which they reside. So the president decides one of his 103 executive orders will eliminate that language. Language of the constitution.
▶ 0:56:34Sen. Durbin: And question whether or not birthright citizenship is legal in america. Cases were filed. One judge, a ronald reagan appointee said efforts by the administration are blatantly unconstitutional.
▶ 0:56:52Sen. Durbin: If you accept the normal process which he described to us, how should that case be handled if we've done away with the universal application of citizens?
▶ 0:57:07Prof. Bray: Thank you. I think that's an excellent example of how the courts are supposed to work. The courts are going to decide the cases. In every single one, the courts will say there is birthright citizenship under the constitution, it will not actually even the disagreement between the circuit courts and it won't even need to be a decision from the supreme court. So what you see is distributed decision-making across the federal judiciary that will resolve the question.
▶ 0:57:37Sen. Durbin: But assume the alternative, that there is a federal judge in some state, let's pick one, texas for louisiana, who says I think the president's right. I believe birthright citizenship is unconstitutional. So you have a case, a controversy and it affects only the cases filed in that district?
▶ 0:57:59Prof. Bray: Well, it wouldn't affect just for cases filed in the district because the district court judge actually has no presidential authority, even with any district. There is no ability for a district judge --
▶ 0:58:13Sen. Durbin: Let me amend my comment, circuit.
▶ 0:58:16Prof. Bray: If a district judge took that position and then it was affirmed by the court of appeals, than what you would have is a circuit split between different circuits and the supreme court would resolve that circuit split. And then with the supreme court would have is a range of different judges from different geographical places with different ideologies, different generations, all speaking to the same question, and that puts the supreme court in a position to do its best work.
▶ 0:58:46Prof. Bray: I don't think that particular legal question needs to be in doubt, but just because one branch goes beyond its constitutional bounds doesn't mean the judiciary should go beyond its.
▶ 0:58:58Sen. Durbin: So I guess my question is in light of individuals personally affected by this, we just have to look the process play out, that would you suggest?
▶ 0:59:11Prof. Bray: There are ways to get a faster decision as professor vladek noted. You could have a national class action. But I think the basic commitment, I recognize there can be human cost, of the basic commitment of our legal system if you don't get the immediate right decision right away. It takes time. It's like the old carpentry adage measure twice, cut once.
▶ 0:59:38Prof. Bray: That is the kind of legal system we have.
▶ 0:59:43Prof. Vladeck: I think it is worth underscoring the kind of human consequences that my friend just brushed right past. You're going to have three years where large parts of the country, children born to undocumented parents will not be citizens, some of those children could be subject to removal by the united states and the ground that they are not citizens, it is not possible for the federal courts to order their folks to be brought back, so that relief that he holds out his possible three years later is of no help
▶ 1:00:14Prof. Vladeck: To the children who are citizens under the constitution, who were removed. The broader policy question is what should the role be in this interim window? We agree that it is all about what is the status quo when the case gets to the supreme court? Should the status quo be that policy is either ineffective or not an effect on a nationwide basis? Portion of the status quo depend on which jurisdiction you live in and what your particular status is?
▶ 1:00:44Prof. Vladeck: That is why it seems to me if you want to talk about real reform, we should be talking about reforms to bolster the other vehicles, a nationwide class action, not just taking law for the stop gap that has emerged in its place. >> thank ranking number. Senator blackburn?
▶ 1:01:03Senator Blackburn: Thank you all for being here. I've got to tell you, being in tennessee over the weekend and in doing a telephone town hall with several thousand tennesseans last night, the overreach of the judiciary is something that continue to come up. The way we've seen these activist judges, they are wanting to see something done.
▶ 1:01:33Senator Blackburn: So they were pleased that we were having this hearing, and they are concerned that you're seeing district judges, and exercise this sweeping injunctive relief that doesn't apply to the case before them, doesn't apply to the district in which they are seated. So professor bray, I want to talk to you for just a moment.
▶ 1:02:05Senator Blackburn: One of the things that senator grassley noted in that many of us have discussed is that there is no constitutional and no statutory law authority for federal district judge is tuition fees injunctions, and so talk for a minute about the effective that lack of authority.
▶ 1:02:28Prof. Bray: I'd be happy to. I think that is correct, there is no statutory basis for granting universal injunctions, and there is no constitutional basis for doing so either. So courts, to the courts have to exercise that judicial power. And the judicial power is not defined by the constitution, but the constitution instead uses what is a known commodity, in reference to the judicial power.
▶ 1:02:56Prof. Bray: It is courts deciding cases for the parties. So universal injunctions is fundamentally different from that. Class action is to lay case. It is a large case, but it is still a case and if the class wins, the class wins. If the class loses, the class loses, but it a decision for a case. And what makes the universal into -- conjunction different is you have a very small case and a remedy for everyone. My friend noted this question about what is going to be the interim rule?
▶ 1:03:27Prof. Bray: Is the interim rule going to be you have a policy or you don't have a policy? We have courts disagreeing about what the rules should be, we should default to as long as there is one court that doesn't like it it is stopped. That is what makes it an effective government action. Government can't act it all it takes is one court for the policy to go into effect for the entire country.
▶ 1:03:55Sen. Blackburn: Let me ask you also about injunction bonds because under rule 65, a party who is seeking an injunction is required, the bond is mandatory. But we've not seen that used in these nationwide injunctions against president trump. So speak a little bit about the station with injunction bonds.
▶ 1:04:24Prof. Bray: I'm happy to. I have an above immediate interest in injunction bonds and having to talk about them. There is an op-ed in the wall street journal a couple days ago that suggested it is a problem for injunctions that were being given against the trump administration with no injunction bonds required.
▶ 1:04:44Prof. Bray: Now, I do think the federal rules of civil procedure requiring injunction bonds, I think it would be a good practice for federal courts to be requiring injunction bonds, all the rule, require junction bonds whenever you give an injunction against the federal government, and I think it is a way of taking into account the regulatory interest of the federal government and the cost injunctions impose. That being said, there's nothing invalid about an injunction just because it is not accompanied by an injunction bond.
▶ 1:05:13Prof. Bray: It still has to be followed, that doesn't mean the court lacks jurisdiction, it is still an order of the court and it must be followed for that reason.
▶ 1:05:20Sen. Blackburn: Thank you. Professor vladek, I wanted to talk you about something you said in your testimony, and I thought it was really very interesting that you said that and I'm quoting.
▶ 1:05:45Sen. Blackburn: We have a justice department engaged in highly partisan and ethically dubious behavior. And I could not disagree with you more in that statement, and I really find it just rich with irony after we've sat here for four years and watched president biden's doj weaponized against the american people. We had parents that went to school boards that were called domestic terrorist, and we have seen two tears of justice.
▶ 1:06:13Sen. Blackburn: So you can submit for me in writing since my time has expired your explanation of why the biden doj was not highly partisan, and you have assumed thatthe trumps doj is. Can I respond? >> I will turn it over to senator padilla. >> professor vladek, good to see you.
▶ 1:06:41Sen. Blackburn: This wanted to take them moment to follow up on something in your opening testimony.
▶ 1:07:19Sen. Blackburn: It members of the committee down the aisle are trying to claim there is a few radical judicial activists standing in the way of president trump's agenda. But just as in his first term it seems as if the president's disregard for the law is the biggest thing standing in the way of his agenda. So I'm going to water some of the specifics again with you. How many cases if you identified were plaintiff's are seeking an injunction or temporary restraining order against the current administration where the judge has actually issued a decision and in how many the relief granted? >> the data obvious change since last friday. The total number of cases we found was 67 and there were 46 of the 67 in which the judge has issued either a temporary restraining order or a culinary injunction or both. >> that is a lot.
▶ 1:07:49Sen. Blackburn: >> how many judges have for these cases, and if you are able to tell or even have a ballpark, these judges were appointed by the president of which party? >> it's 39 different judges appointed by five presidents of both parties. President reagan, president bush. The cases are not symmetrically distributed but a success rate is pretty close.
▶ 1:08:16Sen. Blackburn: Of those 46 rulings against the trump administration, policy nine have come from from appointed judges and the success rate in those cases has been about 45%, 50%, just a little bit lower than we are seeing with democratic judges. >> that's encouraging to demonstrate is not a partisan length in which these judges are acting now.
▶ 1:08:38Sen. Blackburn: When it comes to geography, and you speak to where these judges since they concentrated in one region, and one appellate court jurisdiction, one district, or are they spread around the country? >> much further around the country that what we saw during the biden administration. We seen 11 different district courts the 46 cases that have locked trunk policies. 11 different courts in seven different circuits.
▶ 1:09:18Sen. Blackburn: I appreciate your verification, to me that confirms not just the numbers, that it is not the judges getting in the way of the trump agenda, and it is certainly not a few radical judicial activists, either. Question on a different topic for you.
▶ 1:09:42Sen. Blackburn: You're an expert on sensible ways to reform the judiciary to make it better work for the american people anyway that was intended by the framers of our constitution. What are the most pressing needs when it comes to the federal courts?
▶ 1:09:56Sen. Blackburn: >> the most pressing needs are to avoid the more general ability of parties to manipulate the federal courts in ways that we've seen to some degree in it ministration to both parties, but very structural reasons, I think even more so during the last democratic administration. One example, my friend professor bray joined me in criticizing so-called single judge divisions. That was a phenomenon we saw over and over again during the biden administration.
▶ 1:10:28Sen. Blackburn: The only really obvious target for that kind of behavior during the trump administration, the district court in massachusetts changed its rules to prevent that kind of behavior. That could be a model for a nationwide rule that the party can impose to avoid the appearance that litigants are steering cases to a particular judge because of that judges ideological stances. >> that's critical for people's confidence in the process.
▶ 1:10:57Sen. Blackburn: Last question in my time remaining is sadly very timely because the attacks on the judiciary is not limited to attacks on judges by the trump administration. Now we are seeing a tax on the legal community, and specific firms or lawyers that represent clients and causes at odds with the president ambition.
▶ 1:11:21Sen. Blackburn: Can you speak the chilling effect that these targeted executive orders are having on the legal community and their ability and willingness to take on clients or employees that might dare to disagree with president trump? >> we are seeing a chilling effect in some of the law firms that may be in disagreement with the president, devoting hundreds of millions of dollars to pro bono litigation to support the president's agenda.
▶ 1:11:47Sen. Blackburn: That kind of distortion is a problem not because of democrats and republicans, meaningful access to lawyers is actually central to the courts to play their essential role in our constitutional system. >> appreciate your testimony.
▶ 1:12:08Sen. Blackburn: >> just following up on that, is there an agreement among the three of you that dealing with forum shopping would be beneficial for the judiciary for the strength of the rule of law? >> yes, but it would only soft part of the problem. >> but it would be worthwhile. How about you?
▶ 1:12:35Mr. Panuccio: Excuse me. I think plaintiffs if they have even lead to file a lawsuit in the district should be able to do that. I think that the incentive for forum shopping that you think you can get a judge who can be a ruler for the whole nation. Except problem of judges overreaching. Dark out so you're ok with forum shopping. >> it depends what you mean by that. >> you can't just choose where you file. What lawyer would do that?
▶ 1:13:07Mr. Panuccio: This all kinds of reasons why lawyers choose the file in different districts. >> I get it, I have your answer. One is against it, one thinks it is fine.
▶ 1:13:21Mr. Panuccio: A practical question of a class action lawsuit versus an individual suing, I will ask you, professor bray because you've been talking about class actions and I support class actions, there's been a lot of debate within the committee about whether they are useful or not and a lot of pushback on the use of class actions, but there is an enormously increased burden on the plaintiffs in order to get class certifications.
▶ 1:13:48Mr. Panuccio: >> etc., with respect, the chairman's bill -- I'm not asking about the chairman's bill. I'm a lawyer. Somebody comes in, birthright citizenship client, I'm a small-town lawyer, that is what I was. I say you know what, you are right, I'll do it.
▶ 1:14:07Mr. Panuccio: But if I have to go get class-certified, just tell me the steps I have to go through forgetting that certification as opposed to just taking my client who came into my office and we go to the federal district court in burlington.
▶ 1:14:27Prof. Bray: It's a remedy to -- >> I understand it is appropriate. I'm talking about the practical burden in terms of cost, what kind of legal power you have to have as opposed to a single layer with a single client who comes in to see me and once relief.
▶ 1:14:51Prof. Bray: What is it going to cost for me to do a certification for class as opposed to filing and paying the filing fee at the federal district court?
▶ 1:15:00Prof. Bray: I agree, senator. There are more requirements. That means more attorney hours. I agree with that, but it's also -- it matches the scope of the relief sought. >> I get that. There is an acknowledgment that it's a bigger deal.
▶ 1:15:21Prof. Bray: One of the wonderful things about the justice system is an individual who is harmed can come into a lawyer and that lawyer may take it pro bono. If you have to have a major firm, it's a bigger uphill challenge to get your day in court. Second thing, we have a situation with the courts that is unprecedented. We have a debate on both sides about who is weaponizing the court. I understand that.
▶ 1:15:53Prof. Bray: You, professor vladeck, have of you -- let me give a context. It's the separation of powers and three coequal branches of government. My view is that the legislature is essentially ceding authority to the executive and that is dangerous in the long run for the well-being of our democracy. That is my point of view. I'm asking you if you agree or don't.
▶ 1:16:17Prof. Bray: Professor bray, what do you see as the impact on the rule of law when the executive orders the justice department to dismiss a corruption case against the mayor of new york city in order to get his cooperation on an executive policy on immigration?
▶ 1:16:38Prof. Bray: The rule of law applies to all three branches. Each needs to act consistently with the law. That includes the executive and the subject of the hearing today the courts. I am with you and thinking it is an imperative for every branch.
▶ 1:16:54Sen. Welch: I know that. Real world. This happened. We have a major corruption case against the mayor of new york city and it was dismissed for political reasons. Does not conform to your view of how the rule of law should operate?
▶ 1:17:12Prof. Bray: No, it is not.
▶ 1:17:14Sen. Welch: Thank you. Thank you, madam chair. >> I was struck by the questions on the law firms and the approach of president trump to try to bring them back to the table of working with this administration. I found some of that ironic in the questioning, Mr. --Mr. panuccio.
▶ 1:17:40Sen. Welch: Considering the way the law firms approached any conservative lawyer that was coming out of the last administration and the treatment of such. I thought it was ironic. Did you notice that many lawyers who stood up for good policies were refused employment or shut out of some of these large law firms?
▶ 1:18:02Mr. Panuccio: Thank you, senator. I will be circumspect in my answer because of her to testify on universal injunctions. It's an open secret in washington that if you work for a republican administration you face a harder job market coming out than if you were credit democratic administration. I don't think anyone doubts that to be the case generally over the years. Not just specific to the trump administration but going back to the bush administration and others.
▶ 1:18:32Mr. Panuccio: You you hear people safe you take that job, you may never work again. That happens much more often with republicans than democrats. It reflects law firms like many institutions in this country are overwhelmingly weighted in one direction politically.
▶ 1:18:48Sen. Moody: You have long been an academic on many of these challenges we see with nationwide injunctions. I appreciated your testimony, specifically when you put a justice kagan, appointed by democratic president.
▶ 1:19:10Sen. Moody: She said it cannot be right that one district judge can stop a nation-wide policy in his track and leave it stop for years it takes to go through the normal process. What struck me by that is this term "normal process" by someone who would know how long it takes to go through the normal process. That means the four years, an entire term of president is in office. Isn't that right?
▶ 1:19:41Mr. Panuccio: Pay full appellate process could take several years, yes. I would say, to coin a phrase, this is what democracy looks like. The founders at the philadelphia convention considered turning the judiciary into a council of revision. The judiciary could review laws and policies of the legislative or executive branch before they went into effect. The founders decided against that.
▶ 1:20:08Mr. Panuccio: They said the judicial power is cases and controversies among the parties. The point of democracy --
▶ 1:20:14Sen. Moody: I want to focus on the normal process. The years it would take to go through the normal process. Let's take for a moment we can rightfully change the law to make sure the decisions apply to the parties before the court only.
▶ 1:20:32Sen. Moody: For the administration of justice to have any effect and the people to believe that chaos and controversy and conflict can get rightfully addressed expeditiously, should it take years for these cases to go through the courts? Or, should congress consider an expedited process for matters of great national concern?
▶ 1:20:55Mr. Panuccio: I think it's appropriate if the attorney general were to certify a case of great national importance for there to be a faster process or mandatory jurisdiction of the supreme court. For individual parties, individual parties created by executive action or legislative action, the party can go to a district board and get an injunction that gives complete relief to that party. That does not take years. That can take days, hours in certain cases.
▶ 1:21:27Mr. Panuccio: That is what the district court are there, to grant relief. If what you are seeking is a change in policy nationwide, that is governing. That is what the elected branches do. For the individual parties, I don't think it is years.
▶ 1:21:41Sen. Moody: Professor bray, thank you for joining us. As someone with great reverence for an independent judiciary it concerns me that the public in general based on what we are seeing in the numbers and I thought it was interesting when we say 46 injunctions for orders that have gone against this administration, nine were by republican judges.
▶ 1:22:05Sen. Moody: Do you believe that limiting the relief sought to the parties in front of the court will help alleviate this idea that these are judges acting in a partisan nature?
▶ 1:22:18Prof. Bray: Thank you, senator. It will reduce the appearance of partisanship because you get decision-making by more judges across the country instead of one judge giving an injunction to decide the question for the whole country.
▶ 1:22:31Sen. Moody: You believe the proposed legislation from chairman grassley would address bipartisan concerns?
▶ 1:22:38Prof. Bray: Absolutely.
▶ 1:22:41Sen. Moody: Senator hirono.
▶ 1:22:44Sen. Hirono: Thank you, madam chair. This is a question for professor vladeck. Professor bray noted concern about extreme shopping in single judge district. I think you are familiar with a bill I had introduced her which I'm intending to introduce again about judge shopping.
▶ 1:23:13Sen. Hirono: I was mowed by the concern about -- motivated by concern about nationwide injunctions. Here we are. I think it has relevance. I'm wondering, professor, do you think parties would seek and receive fewer nationwide injunctions if they were not able to judge or foreign shop for favorable outcomes? It happened in the texas method preston case.
▶ 1:23:38Sen. Hirono: -- methiprestone case. >> there was a higher success rate during the biden administration then when they filed and course it had random assignment to more than three judges. That is a small data set. Yes. There's almost no way it would not be smaller.
▶ 1:24:01Sen. Hirono: That would be, in my view, a fair way of adjusting the concern over nationwide injunctions.
▶ 1:24:12Prof. Vladeck: Two things. I think distributing assignments would police mitigate the allure of nationwide injunctions in cases in which the median judge might not issue it. Professor bray referred to his confidence that any judge would block this order. The issue is not those cases. It is cases where the identity of the judge might be --
▶ 1:24:37Sen. Hirono: Especially in the single judge districts. This is for you, and perhaps professor bray. I'm trying to minute in the practical effect of chair grassley's proposed legislation where in the -- you limit the relief a court can grant to only the parties for the court. I would like to know how in a case like the decision how the relief granted would parties be.
▶ 1:25:17Sen. Hirono: >> it is illustrated in the birthright citizenship cases. In the context of individual impairments or a group of noncitizen plaintiffs in northern california seeking to block the birthright citizenship policy, an injunction that ran to them would be of no benefit to noncitizen parents in southern california, oregon, or anywhere else in the country.
▶ 1:25:43Sen. Hirono: You would need litigation on a retail nationwide basis to ensure the actual -- that these parents could have confidence when their children are born in the U.S., they are born citizens.
▶ 1:25:54Sen. Hirono: Multiple lawsuits must be filed to obtain the relief? If are going to go with senator grassley's bill, it's only granted to the parties before it. There are issues -- cases where it would not make sense.
▶ 1:26:16Prof. Vladeck: Unless -- this goes back to the chairman's opening statement -- unless you were in the same bill to reinvigorate nationwide class-actions. Unless you were to effectively trade nationwide injunctions for a reinvigorated nationwide class-action where you could show all noncitizen parents who have a child bearing age are affected by this order.
▶ 1:26:41Sen. Hirono: Professor bray, do you want to weigh in?
▶ 1:26:46Prof. Bray: I think the mifepristone case is a great example. You cannot really have an injunction because the plaintiffs did not have standing. What the case shows --
▶ 1:26:58Sen. Hirono: Let's say they did have standing. >> it shows the lack of face it with universal injunctions, including the original 2015 one. Standing claims and massive universal relief.
▶ 1:27:17Sen. Hirono: I'm saying the standing issue was overcome. Then you have a court that says what the fda did did not comport with the apa. Canaccord limit -- can the court limit holding to the plaintiffs before him or her? >> the court should adjust the remedy to whatever the injury is. You have to have a specific injury to then tailor the injunction to it.
▶ 1:27:49Sen. Hirono: In the case for you don't have one, you can't really have an injunction tailored to the remedy -- to the injury. We have to hypothesize an injury and then hypothesize an injunction that matches.
▶ 1:28:00Sen. Hirono: I think there are some concerns about the approach the chairman is taking in the bill.
▶ 1:28:07Chair Moody: Thank you. Senator hawley.
▶ 1:28:13Sen. Hawley: Let's talk about the need to be here today and the fact that what we are seeing happen in district courts is historically speaking unprecedented until recent years. Out of completely out of sync with our constitutional system. You alluded to this, Mr. panuccio. The way the founders designed to the system. Professor bray, according to your scholarship what is the first time at his record issued a universal nonparty injunction of the kind we are talking about today?
▶ 1:28:44Prof. Bray: 1963. There is debate about when they started in the 20th century. I think that would be the first one. They are not traditional and equity before that and they were a peripheral backwater until 2015.
▶ 1:28:58Sen. Hawley: 1963. The republic is 200 years old almost by the time we get the first district court issuing a universal injunction, binding parties not before it, and even then there is this period of quiet where they are not issued until the 21st century, until the 20-teens. Then there is an explosion in the bush years, bush 43.
▶ 1:29:29Sen. Hawley: Six universal injunctions binding, nonparties in the obama years 12 -- nonparties. In the obama years we had 12. Under trump and his first administration, 64 universal injunctions binding nonparties. 14 hunter biden. Now 1500 -- 14 under biden. Now 15 for trump in one month alone. Tell us why this pattern we are seeing here -- there's a clear partisan valence to it.
▶ 1:29:59Sen. Hawley: There is of a recency valence. This is something that did not happen until very, very recently. Why is this so distorted to the federal system?
▶ 1:30:10Mr. Panuccio: It has judges operating outside their constitutional rule. The arc -- role. The issue is this. We are a republic. Go to get to exercise policymaking power like yourself in this body have to face the electorate every six years, two years, four years, whatever it is. Judges do not. We give them life tenure so they can be insulated and make decisions without fear or favor.
▶ 1:30:39Mr. Panuccio: We limited the judicial power to cases and controversies to just the party before them. Hamilton said it is the least dangerous branch but he had a caveat. Only if the exercise of judicial power. If they range beyond it, he can be the most dangerous branch. The public's confidence will be undermined because they have no chance to get rid of the judges. They don't want to be ruled by kings. They want to be ruled in a republic.
▶ 1:31:03Sen. Hawley: This pattern of abuse, this pattern of out-of-control behavior we are sinking illustrated on the graph behind me is not decelerating. It is accelerating. Not just with injunctive relief. We are seeing it in other orders, other procedural forms that are delivered designed to insulate the judges in district court from federal view. You mentioned this, Mr. --Mr.
▶ 1:31:29Sen. Hawley: Panuccio.we have seen an uptick in the last few weeks in district courts issuing what looks at heckuva lot like a nationwide nonparty injunction but it is styled as a temporary restraining order. Mr. panuccio, if I were a judge who wanted to insulate myself from review, why might I choose the temporary restraining order to do it?
▶ 1:31:49Mr. Panuccio: Under current president, temporary restraining orders are not medially reviewable, unlike a preliminary injunction. If you believe policy is unlawful and you want to exert power nationwide and you don't want anyone to review it, feeling people who can do it our appellate judges. You issue a tro and extend it.
▶ 1:32:13Sen. Hawley: Has this happened the last few weeks?
▶ 1:32:17Mr. Panuccio: It has been happening. Other administrative stays also appear to be unreviewable.
▶ 1:32:28Sen. Hawley: Is entirely appropriate we are here today and protectable given the urgency of the situation. In another sense, you wonder why we need a hearing at all because my democratic colleagues have been decrying the very behavior we are talking about now. As you pointed out, Mr.
▶ 1:32:44Sen. Hawley: Panuccio , we've had multiple members of the last administration -- joe biden's solicitor general said in court, not a straight comment, to the supreme court, "only to the parties before it. District court violate this principle by issuing universal injunctions." elena kagan.
▶ 1:33:10Sen. Hawley: "it cannot be right there when district court judge stopping nationwide policy in its tracks and leaving it stopped for years while he goes through what is otherwise the normal process." I would say to my democratic colleagues, it should not be that it is one rule for democrats, one rule for republicans. Let's make it one rule across the board. No matter who appoints you, a judge can only bind parties who are before her or him. There are no nationwide nonparty injunctions.
▶ 1:33:39Sen. Hawley: Let's make that the standard and let's return these courts to the proper function of our constitutional system.
▶ 1:33:46Chair Moody: Thank you, senator. You stuck to that time. I'm proud of you. Senator shiff.
▶ 1:33:55Sen. Schiff: I want to acknowledge what happened in the southern district of new york when the justice department dismissed a corruption case against the mayor of new york city. Not because of the lack of evidence. Not because of any misconduct by the prosecutors in the case but because of the most serious misconduct of the attorney general and top leadership of the justice department.
▶ 1:34:21Sen. Schiff: The justice department wanted to leverage that case against the mayor by dismissing the case without prejudice so they could use him as a political pawn to help effectuate their immigration policy. That just happened today. It is one of any number of serious abuses of the rule of law by this justice department.
▶ 1:34:48Sen. Schiff: Instead of having a single hearing of what the department is doing or a single hearing on all the other plainly unlawful acts of this administration, instead of hearing any of those things republicans are having a hearing on the one tool that can be used to try to mitigate the harm of these illegal actions.
▶ 1:35:12Sen. Schiff: I completely concur whether nationwide injunctions are good or bad has depended on who they are being used against. I count no less than 26 of my republican colleagues who were vigorously supportive of a nationwide injunction against the use of mifepristone. No problem supporting a nationwide injunction in that case.
▶ 1:35:37Sen. Schiff: On the democratic side, we are applauding injunctions against the unlawful actions of this administration. Where I think I come down at this moment in time, to your point, vladeck point, vla professor vladeck, te use of nationwide injunctions against an administration that has proven to be so breathtaking is lawlessness and
▶ 1:36:07Sen. Schiff: Engaged in such a surge of illegal actions, the effort to do away with this vital tool I think you called it at this time would be disastrous for the country. It doesn't mean there's not going to come a time when we should agree on a bipartisan basis to place limits on the capability. I think we should, particularly on the abuse of form shopping.
▶ 1:36:35Sen. Schiff: Picking judges solely on the basis of their political predilection or who appointed them for the purpose of nationwide injunction. This is not the moment to do it. This is the moment we should be focusing on the illegality, not the tool to constrain it. That doesn't mean we are powerless to work on legislation on this.
▶ 1:36:59Sen. Schiff: I think many of us have concurred with the idea of legislation that takes effect after this term, when we do know -- don't know who the next present will be. We went to the same law school. There was a wonderful professor in john rawls who wrote a book. He probably read about the veil of ignorance. You cast a veil of ignorance over society.
▶ 1:37:24Sen. Schiff: Society would develop rules to govern that society not knowing their attributes, race, gender, none of that. Far be it for me to advocate for a veil of ignorance over this body. We are ignorant enough. Perhaps the endurance of not knowing who the next president is is useful here. We should come up with a sensible reform of injunctions and form shopping.
▶ 1:37:51Sen. Schiff: There's no way this is going to have bipartisan support unless we defer it's application until we don't know which way it will cut. The same is probably true about feeling judicial vacancies. We have come to this broken place where probably the only way to get things done this to postpone the application until we don't know who the president will be. My time is almost up.
▶ 1:38:21Sen. Schiff: Professor vladeck, I would yield to you for any kind of response.
▶ 1:38:26Prof. Vladeck: Senator, it is revealing that I as the minority witness today and not here defending in all context universal injunctions. I have written I think there are too many of them. I have written before they raise at least some prudential concerns that professor bray has raised. I went to a dorsette holistic reform to make litigation against the government less manipulable is something we should be able to support.
▶ 1:38:56Prof. Vladeck: But that reform has to be about more than just closing off this one avenue today when there have been other develop insight closed off the other avenues historically that have made senator hawley's examples relevant today.
▶ 1:39:11Chair Moody: Mr. schmidt.
▶ 1:39:13Sen. Schmitt: It occurs to me that -- I don't want to retry the same tire tracks here. Broadly speaking, we are talking about a separation of powers issue. That is when you distill it, this is one way plays out. As one of the witnesses remarked, the founders never envisioned this sort of scenario. They never envisioned the abuse we are seeing recently.
▶ 1:39:46Sen. Schmitt: If what the next summation -- it puts an exclamation point on it. Just take judge vosburgh's ruling in the nation's capital. When I think the supreme court was very clear in justice jackson's famous concurrence that the high watermark of presidential power is when you have congressional authorization.
▶ 1:40:15Sen. Schmitt: When you are performing particle ii -- particle ii -- article two duties as commander-in-chief. It is silent. The text of the statute is silent on judicial review. This is pre-marbury. They would not have intended that anyway, yet we have a judge, there are other issues app apt play, but a judge feels compelled to make this sort of decision.
▶ 1:40:49Sen. Schmitt: Inherently it is article two power and/or a political question that is not due to judicable. Could have judge have stopped andrew jackson from firing on the british at the battle of new orleans because we had already signed the treaty? Of course the answer is no. Could a judge stop fdr from responding to the japanese bombing of pearl harbor because they had not formally declared war until two hours later?
▶ 1:41:19Sen. Schmitt: These are questions and core article two powers. When we talk about the separation of powers, we don't teach civics anymore but if we did you would learn the article three branches powers not unlimited either. Is limited. -- it is limited. Congress gets a limit article three power, one of the reasons we are here today.
▶ 1:41:46Sen. Schmitt: I think we have seen senator hawley's graph about exhilaration. I think the chairman's bill -- I'm a cosponsor -- and maybe there is a mutually assured destruction senator schiff is talking about and the conditions you can get something like this done. I want to raise another question. Mr.
▶ 1:42:13Sen. Schmitt: Panuccio, it's an open secret, the appellate bar and politically sensitive litigators know this. This randomly assigning district court judge thing, something is wrong here. Something is happening. It is statistically impossible for judge vosburgh to get the cases he is getting. When I was attorney general of missouri, we saw with the eighth circuit.
▶ 1:42:44Sen. Schmitt: The one democratic pointed judge ended up on the panels. It is statistically impossible for that to have happened in that period of time. What are some reforms we might consider to ensure this is truly random? If one of the remedies is that you actually have a randomly selected this record judge, they ought to be -- there ought to be a randomly selected district court judge. Do we have a lottery? A big wheel?
▶ 1:43:14Sen. Schmitt: There's no suspicion now that it is affecting the credibility of the court.
▶ 1:43:19Mr. Panuccio: Thank you, senator. I'm not an expert on the wheels across the country. My understanding is a litigators that most courts employ a wheel. How that wheel is weighted can change from district to district depending on the judges. For example, in one of my home courts in florida, a public order tells you exactly how the we will work. 35% of civil cases to this judge. 60% of this judge, 5% of that judge.
▶ 1:43:48Mr. Panuccio: My own view is that the more transparency the courts have, the better. At least the public can know this is how the wheel is working. Even if we don't seal the wheel operate, you know this is the waiting -- weighting based on how many judges you have and the geography.
▶ 1:44:05Sen. Schmitt: I suggested addition to what we are talking about today there ought to be more reforms contemplated. You don't need to be some soothsayer or the oracle of delphi to understand there is something amiss here.
▶ 1:44:26Chair Moody: Senator whitehouse.
▶ 1:44:29Sen. Whitehouse: Thank you all for being here. The first thing I would like to do is put into the record a partial list my office pulled together of nationwide injunctions against the biden administration that my republican colleagues celebrated and rejoiced in. This is a bit of a -- what side are you on? Who was in power right now type a debate we are having.
▶ 1:44:57Sen. Whitehouse: The second thing I would like to do is point out that the discomfort to fury, a general range, about decisions against the trump administration may actually have a lot to do with the unprecedented lawlessness and lawbreaking of the trump administration rather than a weird cabal of judges trying to intrude.
▶ 1:45:28Sen. Whitehouse: It rolls into something that's important to the court, which is threats to judges and their families. I think there is significant evidence to show it has been orchestrated and systematized.
▶ 1:45:47Sen. Whitehouse: It starts at the top with people like trump and musk making threats about impeachment and whipping up in the case of musk curated a whole armada of characters to put it nicely on x who when he targeted an individual, barraged individual with abuse and threats.
▶ 1:46:14Sen. Whitehouse: The editor that musk does not know he has this curated armada of not entirely all their individuals who are willing to go and harass and threaten when he's identify the target seems unlikely. Seems like he knows and it's deliberate.
▶ 1:46:33Sen. Whitehouse: In that regard I would like to put into the record a letter I wrote to the judge that is the new head of the judicial security and independence task force.
▶ 1:46:47Sen. Whitehouse: For the first time the judiciary felt it had to put together a test force to deal with a campaign of threats that begins with trump and musk and down to individual judges who are not only critiqued -- that is fair game -- but they are threatened with impeachment to the point where the chief justice has had to stand up and say no, no, no. If you disagree with a decision, that's an appealable issue. Not an impeachable issue.
▶ 1:47:22Sen. Whitehouse: I ask both be put into the record, my letter regarding what they have to do. Here's my concern.
▶ 1:47:31Chair Moody: Without objection.
▶ 1:47:32Sen. Whitehouse: I don't know that the marshals service is going to provide the protection that the judges need. We had a good response to the rhode island judge that was subject to these threats the court is impressed and pleased with what the marshals service did in that instance. It gets a little different when you start going after -- it seems always to be female family members.
▶ 1:48:03Sen. Whitehouse: When you start going after spouses, wives, daughters, things like that -- if you go after a judges daughter in a different location, how does the marshals service respond to safety issues related to the daughter who lives in a different city, not even in the district? And do the marshals have authority to do investigative work to see what can be done to understand the threat posture these judges are facing and who is behind it?
▶ 1:48:33Sen. Whitehouse: Are they constrained only to provide protection but not look into what the threat is? Those are really important questions and I hope this judicial group will take a good hard look at that. That is what my letter requests. The last thing I suggest is, this ain't that easy.
▶ 1:48:54Sen. Whitehouse: If you are a district judge and you decide a rule is unconstitutional or an action is unconstitutional and the action playset across multiple states -- plays out across multiple states, the law of the case and as the law on that subject ought to be applicable in other districts.
▶ 1:49:20Sen. Whitehouse: The idea that every time some action is deemed unconstitutional, you have to file it 93 times and hit every single district before it can apply -- we get into some practicality issues as we mount this little crusade that runs exactly counter to where my republican colleagues were one that she was on the other foot.
▶ 1:49:45Chair Moody: Senator cruz.
▶ 1:49:48Sen. Cruz: It's long been said that hypocrisy is the tribute that vice pays to virtue. I'm enjoying listening to my democrat colleagues suddenly discover the virtues of the rule of law. After four years with eight brazenly supported the most lawless department of justice and the most politically weaponized apartment or justice our nation has ever seen. Witches just heard the senator from rhode island talk about the imperative of protecting judges.
▶ 1:50:15Sen. Cruz: Yet not a single democrat senator cared about the violent protesters that showed up outside of supreme court justice's homes, including female justices like justice amy coney barrett, threatening their family, and joe biden's attorney general did not do a damn thing and refused to protect the judges. Why? He agreed with the violent protesters and what it to intimidate and threaten those judges.
▶ 1:50:42Sen. Cruz: Professor bray, under our constitution who should decide elections, the voters or unelected judges?
▶ 1:50:53Prof. Bray: The voters are the ones who should vote in the election according to the law. The loss sometimes out to applied by the judges.
▶ 1:51:02Sen. Cruz: Under our constitution who is charged with making policy decisions, elected representatives elected by the people or unelected federal judges?
▶ 1:51:12Prof. Bray: The question of policy is a little broader than the particular case. The basic -- the laws should be enacted by congress.
▶ 1:51:25Sen. Cruz: Policy decisions of the elected branch. Law is a province of the court. Policy is the provinces of the elected branches. Professor bray, let me ask you this. The federal courts have power to issue remedies for people who are not parties to a case?
▶ 1:51:39Prof. Bray: That is a question I agree is not complicated. They do not have that power.
▶ 1:51:45Sen. Cruz: Is the phrase universal injunction found anywhere in the constitution?
▶ 1:51:51Prof. Bray: It is not.
▶ 1:51:52Sen. Cruz: In the first 150 years, how many nationwide injunctions were issued?
▶ 1:51:57Prof. Bray: My view is about any until 1963.
▶ 1:52:01Sen. Cruz: Fast-forward. How many nationwide injunctions were issued in the entire 20th century?
▶ 1:52:07Prof. Bray: It is a small number. I would think it would be a dozen give or take.
▶ 1:52:14Sen. Cruz: 27 actually. Excluding trump's first term, how many nationwide injunctions were issued in the last 20 years?
▶ 1:52:25Prof. Bray: Far more than that.
▶ 1:52:27Sen. Cruz: 32. From 2001 to 2024 against biden, obama, bush, 32. How many nationwide injunctions have been issued in the last two months alone?
▶ 1:52:41Prof. Bray: There have been quite a few.
▶ 1:52:44Sen. Cruz: 37. Let that sink in. There have been more nationwide injunctions in the past two months against president trump then in the entire 20th century. There have been more nationwide injunctions against president trump in the last two months then both terms of george w. Bush, both terms of barack obama and joe biden's term.
▶ 1:53:12Sen. Cruz: We saw during the bryden -- biden presidency using the machinery of justice to attack him. Democrats today hate democracy. Democrats today are angry at the voters for reelecting donald trump and electing a republican senate and republican house. They engaged in law fair they engaged in law ffare to stp democracy from operating.
▶ 1:53:42Sen. Cruz: Understand this is the second phase of lawfare. This is the second phase of lawfare. Now that there are efforts to indict president trump and stuff the voters from reelecting him have failed, they are going and seeking out individual radical judges to try to shut down policies and they are form shopping like crazy. Give me any loon judged by obama nor biden who disagrees with the policy.
▶ 1:54:11Sen. Cruz: We saw a judge flagrantly ignore immigration law concerning tps being revoked. Law says there is no judicial review for that but they found a judge who says, you know what? We the democrat party or the party of illegal aliens. The party of murderers and rapists and gang members. The democrat party exists here to fight to keep murderers and rapists and gang members in your communities.
▶ 1:54:42Sen. Cruz: There's a reason democrat party is at 26% approval. They put radical policies ahead of rule of law. Nationwide injunctions are an abuse of power.
▶ 1:54:58Sen. Cruz: It is the judiciary acting as policy decider and incumbent on this committee and this body to rein the abuse of power from these unelected radical judges who are trying to overturn election because they disagree with what the voters decided.
▶ 1:55:16Chair Moody: Senator klobuchar.
▶ 1:55:19Sen. Klobuchar: Ok, that was a lot. Number one, we love democracy. I believe what we should be having as a civil debate about how we can best -- if donald trump wants to make changes to the government, we should do it in a legal way. Not how he's doing it. The reason there's always injunctions, senator cruz, it's because he is violating the constitution. Why would trump appointed judges --
▶ 1:55:47Chair Moody: Senator cruz.
▶ 1:55:51Sen. Klobuchar: What did you decide?
▶ 1:55:52Senator Cruz: Why are they seeking out left-wing loons?
▶ 1:56:01Chair Moody: Senator whitehouse. I will ask for a point of order. Senator klobuchar.
▶ 1:56:08Sen. Cruz: We have debates on this committee.
▶ 1:56:11Chair Moody: Let's let her have her time.
▶ 1:56:19Sen. Klobuchar: Following senator cruz once again.
▶ 1:56:22Chair Moody: Excuse me?
▶ 1:56:25Sen. Klobuchar: He and I have --
▶ 1:56:28Chair Moody: To be following him in order. Excuse me. Go ahead, senator klobuchar. Go ahead please.
▶ 1:56:36Sen. Klobuchar: I will take more than my time since he taking more of his time to yell at me.
▶ 1:56:42Sen. Cruz: Not yelling. I asked the question.
▶ 1:56:46Chair Moody: Senator klobuchar. You will be a lot of the time.
▶ 1:56:50Sen. Klobuchar: The reason all these cases have been filed and the reason these judges who have been appointed by ronald reagan --, yes, they still exist -- and the bushs, and judges appointed by donald trump have been making these decisions is because this is not legal. Donald trump himself used his social media account, the white house account to post an image of himself wearing the crown saying long live the king.
▶ 1:57:19Sen. Klobuchar: The issue is that we do not live in a kingdom. Elon musk is not his court jester. Ours is a nation of laws in which no one is above the law. That is why 39 different judges from vastly different backgrounds appointed by five different presidents have made clear these are illegal actions. These judges have rightly blocked these actions.
▶ 1:57:45Sen. Klobuchar: It is important that we not lose sight of the underlying cause of these injunctions. It is not that these judges are crooked or lunatics or people. Those are words used -- evil . These are words used by the president and his allies. The administration is violating the constitution. What happens when they use these kinds of words? You see more and more threats against judges. That is what we are seeing.
▶ 1:58:15Sen. Klobuchar: That is why federal judges and the U.S. marshals who are responsible for protecting them are sounding the alarm about a spike in threats against judges. This is serious. Unlike what senator cruz said, hiring and remembering when the threat was made, the horrific threats and the man was in justice kavanaugh -- on a street on a bipartisan basis, we came together and got more funding
▶ 1:58:46Sen. Klobuchar: For the judges and changed things so they had more protection. What he said was completely untrue in terms of democrats and republicans decrying violence. We didn't just decry the violence. We actually did something about it in response to a court that is run by justice roberts, who is a republican appointee. I think that kind of language actually makes this situation worse when it is not even true.
▶ 1:59:14Sen. Klobuchar: Unfortunately, senator cruz left so he did not hear my response to what was a lie. President trump's attacks on these judges had made for some major, major risks for these judges. I would ask you, Mr. panuccio, and not in a partisan way, just normal, as a partner in a law firm, would you ever -- have you ever taken to social media to personally attack a judge who ruled against you?
▶ 1:59:45Sen. Klobuchar: That is all my question is.
▶ 1:59:46Mr. Panuccio: I think that attacking judges personally and not the reasoning -- let me give you a quote. I want to tell you, you have policed the whirlwind and will pay the price. You will not know what he do if you go forward with those awful decisions. That was something senator schumer said and I thought it was awful and it unleashed a wave of violent threats against supreme court justices. I think that is problematic, that kind of language.
▶ 2:00:15Sen. Klobuchar: I have no doubt the language of the problem on the left or right. I'm asking you if you have ever personally attacked the judge after you disagreed with the ruling.
▶ 2:00:26Mr. Panuccio: I have not.
▶ 2:00:28Sen. Klobuchar: And you believe the proper recourse is to appeal when you disagree with the ruling?
▶ 2:00:34Mr. Panuccio: When I disagree on behalf of a client, I appeal.
▶ 2:00:39Sen. Klobuchar: I was not going to criticize you. I believe you would not have done this. That is my point. When people do this, and right now we have not just a random person on social media doing it. We have the president of the united states doing it. I would ask you, professor vladeck, in your opinion, are the judges who ruled against the president radical and rogue judges?
▶ 2:01:03Prof. Vladeck: No. Even though he left the room, senator schmitt suggested it was statistically impossible that chief justice was designed -- assigned to multiple cases. That rhetoric is inflammatory in addition to be meth eagerly -- mathematically correct. There are 31 cases in the D.C. district court alone in which district judges several against the administration. There are 11 or 12 active district judges.
▶ 2:01:31Prof. Vladeck: The notion that one of those judges would have multiple of those cases is not statistically impossible. It is statistically certain.
▶ 2:01:37Sen. Klobuchar: If the president does not win to have judges rule against him, is the answer he just follow the law?
▶ 2:01:45Prof. Vladeck: One would think. We live in a bit of an upside down world of the moment.
▶ 2:01:50Sen. Klobuchar: This hearing was titled and enacted make fashion "universal injunctions." we can make it all academic if we want. Clearly we have it with senator cruz's remarks. I want to make the point that this has a real consequence with these cases that are coming before these judges. This is outside of their decision, which is based on the law and the facts. Sometimes a rule with the president, sometimes ruled against the president.
▶ 2:02:18Sen. Klobuchar: Just to get it so people understand this is not just some academic exercise about injunctions and if they are a good thing to have legally, last month a federal judge blocked the administration's plan to slash nih funding for medical research. Can you talk about the impact of the judge was not able to issue a nationwide injunction?
▶ 2:02:37Prof. Vladeck: Briefly, nih hands out thousands of grants. If you require the recipient to litigate the decision of each grant on a retail basis, you would have gaps in cancer research, gaps and all kinds of work by the national institutes of health because it is not possible those thousands of grants could be challenged on a retail basis in federal courts.
▶ 2:03:02Chair Moody: He so much. -- thank you so much. I let you go way over your time. No, ma'am. I did give you extra time and over what was taken. Thank you so much. I appreciate it.
▶ 2:03:21Sen. Klobuchar: A lot of times when senators are still here and there is no one else here, they let them have a second round.
▶ 2:03:28Chair Moody: Just one moment to ask about issue that came up. That is regarding tro's. I want to make sure the committee as a whole has an understanding of tro's. How they are used so they can take this into account in the proposed legislation. Tro's have been used historically by judges. They have not been immediately appealable.
▶ 2:03:55Chair Moody: It is in the proposed legislation that we change that practice through law and make sure tro's are appealable. Do you think that would remedy some of what is happening today and some of the distrust that certain judges are making partisan rulings? Mr. panuccio?
▶ 2:04:17Mr. Panuccio: Thank you, senator moody. Tro's are looking a lot like preliminary injunctions. They are immediate the appealable. It should not matter what label the corporate sonnet -- court puts on it.
▶ 2:04:36Mr. Panuccio: If the court is enjoining before a party has proven before a jury or judge entitlement to relief, if they are getting that injunction, it should be immediately appealable no matter what the label is.
▶ 2:04:48Chair Moody: That would make a significant change in court procedure in comparison to how it has been applied historically?
▶ 2:04:57Mr. Panuccio: It would. Daegis recent scholarship about how exactly it came to be that tro's are not appealable. Given what is happening, legislation would probably be the most expeditious way.
▶ 2:05:10Chair Moody: That seeks to expedite review of some of these cases where judges are issuing nationwide orders. I want to go back to something we heard ready much on both sides of the aisle today. Questions pertaining to executive authority. Article two authority. Whether or not that should even be reviewable in some instances, especially as it relates to national security matters.
▶ 2:05:38Chair Moody: Are there instances to alleviate partisan concerns? I'm sure as a lawyer it causes you concern for the stability of this nation and our separation the powers that there would be a suspicion of partisan agendas among our judges. That is concerning, correct?
▶ 2:05:57Mr. Panuccio: We want judges to be seen as nonpartisan in applying the rule of law only.
▶ 2:06:02Chair Moody: Would you be in instances where utilizing a three-judge panel might alleviate those concerns?
▶ 2:06:08Mr. Panuccio: We have instances of that. There are numerous kinds of cases where a three-judge panel -- the statutes require a three-judge panel is convened. Sometimes it is because the cases are significant to national importance or -- I don't say partisan but important balance in terms of the policy. We see this in redistricting cases. There is a place for three-judge panels, I think.
▶ 2:06:39Mr. Panuccio: I will say I don't -- I personally don't believe we should say if someone seeks a nationwide injunction or nonparty relief he goes to a three-judge panel. That would give validity to nonparty injunctions. I don't think they are valid if one district judge does it or three or 17. I don't think district court have that power.
▶ 2:07:01Chair Moody: In some instances it might be indicated the public might want impartiality and that might be preferable.
▶ 2:07:09Mr. Panuccio: Just to make sure there is greater deliberation among intelligent judicial minds about major issues. You could have -- look, if it's a case about the president's wartime powers, it will not go to a single district judge. People go to three judges because we get the benefit of three times the benefit of judicial reasoning.
▶ 2:07:31Chair Moody: If there were a three-judge panel, the need for expeditious review would still be important if it is a matter of great national concern or interest.
▶ 2:07:40Mr. Panuccio: Equities just appellate review of cases -- expeditious appellate review of cases of national concern is important.
▶ 2:07:50Chair Moody: Sen.
▶ 2:07:52Chair Moody: Senator britt.
▶ 2:07:55Sen. Britt: Professor bray and Mr. panuccio, I would like to turn to talking about the administered procedures act. One of the provisions of the judicial relief clarification act, which I'm proud to be a cosponsor of, amend section 705 and 706 of the apa to limit relief to the persons before the court.
▶ 2:08:21Sen. Britt: My question is can you discuss the emergence of apa packager -- vecature in addressing the issue addressing universal injunction problems today?
▶ 2:08:40Prof. Bray: The administered a procedure act allows challenges and judicial review of agency action. There is a vigorous debate among scholars about whether the administrative procedure act should be understood as allowing a separate remedy of vacant a separate remedy of vacan ture. You will not find it in casebooks or treat disease. -- treatises.
▶ 2:09:08Prof. Bray: What I don't think you can really debate is the interaction between vacature and universal injunctions. We have seen that he gets in courts shifting from universal injunctions to vacature. Especially as appellate courts and some of the concurring opinions from the supreme court expressed skepticism of universal injunctions.
▶ 2:09:37Prof. Bray: That kindness which is important for a legislative solution. It means it has to tackle the vacature problem or you will play whack-a-mole and stop universal injunctions and all the same things will be done by courts against agencies under the apa.
▶ 2:09:55Sen. Britt: Thank you.
▶ 2:10:01Mr. Panuccio: I will say that, as he has said, the issue of nationwide injunctions or vacature is there one in the same. It is the court granting relief to parties not before it. There is the issue of the set-aside language in 706. Any legislation that will address the issue of nonparty relief need to take that onto take on injunctions and allow courts just to say I will look over here to the apa.
▶ 2:10:29Sen. Britt: Thank you. Professor bray, I want your response to the criticism to those opposed to curtailing universal injunctions. That we should not eliminate universal injunction because it can lead to inconsistency and inconsistent application of the law around the country or in some form of this uniformity -- dis-uniformity. It's not about having uniformity.
▶ 2:10:57Sen. Britt: It is the level the court system is such nationwide uniformity actually achieved. The process to get there and how we achieve that is what is that question. What is your view on the question? What is your response to the dis-uniformity criticism of limiting versatile injunctions and relatedly is uniformity a bad thing?
▶ 2:11:24Prof. Bray: There's a lot of value to uniformity in the law. The question is how and when and who gets you there. In our legal system we get you uniformity over time. One of the striking things you see her universal injunctions is they are proceeding on a premise that the first judge selected with highly intensive shopping and a time of high judicial polarization, the first judge he takes the question is going to be right.
▶ 2:11:54Prof. Bray: Often, universal injunctions get reversed or narrowed on appeal. There should be no presumption of the first judge to tackle the question is the one who should get universally -- uniformity. The appellate process is a normal process.
▶ 2:12:13Sen. Britt: Thank you so much for your time.
▶ 2:12:16Chair Moody: Senator klobuchar.
▶ 2:12:20Sen. Klobuchar: Just two more questions. We were going through nih and with that would mean if you had of an individual case in every grant and every single jurisdiction of the country, which is why we have this ability on the nationwide front. Let's look at something else. Federal judges block the administration's funding freeze that jeopardized everything from community health centers to childcare to infrastructure to support for law enforcement.
▶ 2:12:49Sen. Klobuchar: Can you talk about the impact if those judges had not been able to issue a nationwide injunction, including on nonparties?
▶ 2:12:56Prof. Vladeck: I think we would have seen overnight tons of entities that depend upon those federal funds to provide oil services to everyone -- vital services to everyone close up shop and not provide services because they don't have the money. Professor vladeck is right --professor bray is right. What is not explicated is that one of the justifications for uniformity earlier rather than later is irreparable harm.
▶ 2:13:25Prof. Vladeck: It is a notion that but for this kind of relief at this early juncture. Mr. panuccio has been attacking tro's. The harm the parties is facing is so urgent that there is not time for the ordinary process. We have not done a lot this morning to talk about how these policies are harming people in ways that create extraordinary justifications for these kind of judicial interventions.
▶ 2:13:50Sen. Klobuchar: Last one. Judges have blocked the administration's plans to empower elon musk to rummage through americans' social security information. My words. Get access to their bank accounts, tax returns. This is all the doge looking at things. If judges had not been able to issue nationwide injunction, what would be the impact on the american people?
▶ 2:14:14Prof. Vladeck: It is a different fact, same problem. You need retail litigation by every american whose social security information was compromised or somehow overcome the barriers at the supreme court for classification. -- class certification.
▶ 2:14:35Prof. Vladeck: It seems to me that those who are averse to nationwide injunctions but not to the notion that the federal government should be active within the confines of the law should be supportive of reforms that would strengthen the nationwide class action as a procedurally proper and historically precedented device for restraining the executive when the lawlessness is on such a wide scale.
▶ 2:14:57Sen. Klobuchar: Thank you.
▶ 2:14:58Chair Moody: Thank you, senator klobuchar. Ranking number.
▶ 2:15:03Sen. Durbin: I want to ask question of Mr. panuccio. You addressed this earlier and I want to make sure there's clarity, at least in my mind on your response. President trump's executive orders attacking a number of law firms because they employed attorneys who were involved in litigation and represent clients he did not approve of.
▶ 2:15:24Sen. Durbin: I understand he is withdrawing security clearances for some members of the law firms, which would impact their client relationship and their ability to do work. What is the impact of those executive orders on the targeted firms?
▶ 2:15:43Mr. Panuccio: Ranking member, you would have to ask those law firms with the impact has been.
▶ 2:15:48Sen. Durbin: What message do you think these executive orders say to the legal community?
▶ 2:15:54Mr. Panuccio: You would have to ask the legal community.
▶ 2:15:57Sen. Durbin: You are with the law firm. Has a come up in conversation in the last two weeks among your colleagues?
▶ 2:16:04Mr. Panuccio: It is not what I was here to testify about. Law firms have the ability, as with any party this country to seek individual relief in a court as many of our doing -- as many are doing.
▶ 2:16:18Sen. Durbin: Routine legal work.
▶ 2:16:20Mr. Panuccio: Challenging and exec at a water -- an executive order has become routine in this country. The courts are open for those individuals to seek redress.
▶ 2:16:31Sen. Durbin: Professor vladeck?
▶ 2:16:34Prof. Vladeck: I do me to repeat myself. I think we should all be invested. By we, I mean lawyers, law professors, members of congress. The court thrive when they are receiving the best possible arguments from the members of the bar. Everyone will have their own views on who has weaponized what against whom.
▶ 2:16:58Prof. Vladeck: The notion that we should be getting to a place where the executive branch is openly threatening law firms in context in which those threats are designed to prevent lawsuits against the federal government jeopardizes the very accountability the separation of powers exist to protect.
▶ 2:17:13Sen. Durbin: Professor bray?
▶ 2:17:15Prof. Bray: You need a strong and independent bar to represent the interests of all the people in the united states.
▶ 2:17:21Sen. Durbin: Thank you.
▶ 2:17:23Chair Moody: Because we allow them additional questioning, senator britt, would you like additional questions?
▶ 2:17:34Sen. Britt: Mr. panuccio, what is your argument that universal injunctions are getting to prevent having to relitigate the same issue in multiple jurisdictions?
▶ 2:17:46Mr. Panuccio: That is not how or multitiered court system works. The whole point -- the first ground for the supreme court to take jurisdiction over a case, the reason it will grant, the number one reason is that there is a circuit split. How can we have a circuit split we have a district court which is lower than a circuit issue a rule for the whole country? The whole point is we have collation.
▶ 2:18:16Mr. Panuccio: We have over 1000 district judges in the country. To apply their judicial reasoning. Justice ginsburg had a very eloquent x1 nation of white percolation -- explanation of why percolation is important. It is not within our historical tradition to have one judge set a rule for the whole country and have that uniformity. That is not with the legal foundation is built upon.
▶ 2:18:39Sen. Britt: Thank you so much.
▶ 2:18:40Chair Moody: I want to thank the witnesses for your time this morning. This has been a long morning but certainly a topic important to this entire country. All eyes and attention is on this right now. We are so grateful.
▶ 2:18:57Chair Moody: What we have learned today is there is a very keen interest to address making sure our judiciary remains impartial and that it is making rulings only in terms of relief as to the parties before it, and that we are encouraging expeditious resolution of these extraordinarily important matters, especially when you have a president trying to deliver on promises made to the
▶ 2:19:27Chair Moody: American people and restoring safety and justice to this nation. With that, I thank you for your time. I think everyone who has participated in the hearing today. Certainly, this is the people's house and it's important we have members of the public here with us as we are debating and addressing these important issues. Written questions may be submitted for the record until april 9 at 5:00 p.m. Certain senators asked for written responses if you are willing to provide them.
▶ 2:19:59Chair Moody: With that, the hearing is adjourned.