Comment by vannevar | Hacker News Reader

Comment by vannevar | Hacker News Reader

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>The state of affairs prior to this ruling is that any of 700 district judges could unilaterally block the president from exercising his authority under the constitution pending a review, including matters of national security, based on their own subjective politics.

It would be more accurate to say that prior to this ruling, any of 700 district judges could unilaterally block the president from exceeding his authority under the constitution pending a review, including matters of national security, based on their own subjective view of the law. It may differ in other countries, but under the US Constitution, the judicial branch ultimately decides the limits of executive authority, not the President.

If it's truly a matter of national security, the President could always file emergency appeal and it would almost certainly be granted. If it's such a dire and immediate emergency that even those few hours were critical, it's doubtful that any President would feel obligated to obey the injunction anyway.

Far from preventing the proper functioning of government, this was one of the few remaining guardrails maintaining the proper functioning of government under unprecedented circumstances.

We didn't have universal injunctions for most of the republic. They started around 1916 and even then prior to Nixon, federal law required 3 judge courts for injunctions against govt. actions. So this idea of a single judge halting something (right or wrong) only dates back to 1976.

I like the idea of requiring a few judges to agree. And chosen at random to avoid all this judge shopping insanity.

But see, it works both ways. If a judge can unilaterally block the president from exceeding his authority, a judge can equally well block the president from exercising his authority. (There is no magic black letter printing on executive orders that is within his authority and red letter printing for those that exceed it. In fact, this is exactly what these court cases are about.)

So either a judge can block orders that exceed the president's authority and orders that are within it, or the judge can block neither.

But that's fine because the executive can appeal and is in a much better position to do so, and it makes far more sense for the law to be consistent than to only benefit those with the power and time to fight back.

Since when did we start arguing that executive power must be unchecked for fear of it being slightly inconvenienced?

If you think that's what I'm arguing, you have seriously misread me.

Sure. And if their judgment is deemed incorrect, it will be overturned on appeal. If the matter is urgent, appeal will be expedited. That's how the system works. You can certainly argue that we need more courts to handle the current workload, but let's directly address that issue rather than curtailing the injunction power to reduce the work.

Bear in mind that this was a case where the multiple courts who considered the issue were unanimous in their opinion that the President was very likely to lose on the merits. Exactly the kind of case where there should be an injunction.

These weren't being used in that manner though - Trump was winning on appeal, then a second court would issue the same injunction, forcing him to go through the same thing again. This ruling was needed to stop the courts from abusing their power.

> any of 700 district judges could unilaterally block the president from exceeding his authority

Not at all. Whether or not the president is exceeding their authority, a judge could block it nationally. It's not like lower court rulings haven't been overturned before.

And the bigger issue is "judge shopping". Want to block something nationally? Just find 1 of 700 judges who will rule the way you want, and file in that district.

Forum shopping is indeed a problem, but it's a separate problem calling for its own solution.

Your premise is false, exceeding is not the limit, because the limit is at the behest of any of the judges; given a judge exceeds their rational, then they exceed their rational ability to limit the executive branches power

And if the judgement is in error, it will be appealed and overruled by a higher court. This is how our system works. We're only seeing it as a "problem" lately because the past few administrations have leaned increasingly heavily on unilateral executive action rather than legislation as the constitution designs, and as we'd been doing successfully for the previous 200 years.

What penalty is there for continuous “errors”. Let’s say a judge was known to always apply an injunction for a certain party, can they be penalized or removed?

If I become biased or incompetent at my job I’m eventually get fired but do judges ever?

Judges can be impeached

Yeah but can they be sued for rulings they made in their capacity as a judge? Could we throw in jail Supreme court justices for making the Dred Scott v. Sandford decision if they were still alive?

I'm not sure it's true that recent presidents have relied more on EOs---at least the numbers suggest that recent presidents have actually relied less on EOs than many of their predecessors (https://www.statista.com/statistics/1125024/us-presidents-ex...). Now, it may be the case that the scope of EOs has grown, so that they implement bigger policy initiatives. I'd be curious if anyone has done that analysis. It might also be that rising partisanship has led to more exaggerated reactions to EOs by the opposition, making it seem like a bigger problem than it actually is.

And yet what's going on is an exercise of the law as it exists, because Congress abrogated its responsibility.

Each Executive administration since W has reached further and further. Congress has ceded more and more, because while it is their responsibility to choose, doing so comes at a political cost they don't want to pay. So they hand it over to the Executive.

Time for some garbage collection in the law code. If you want a limited Executive, vote for a Congress that will take its power back. The Constitution gave tariff power to Congress, for example, and a few decades ago, they gave it over to the President. IIRC, the same goes for border policy and deportation rules. We keep assuming when we install all of this machinery in the Oval Office that no... no he wouldn't push that button, it would be indecent. Every President pushes more of the buttons at their disposal (with the possible exception of Joe, as it was his staff running things and not him), and this one is no exception.

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