On Wednesday, Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York imposed a lawless “nationwide injunction” on the U.S. Department of Health and Human Services’ (HHS) so-called “Conscience Rule.” That administrative rule, promulgated under the guidance of HHS’s Roger Severino, attempted to ensure, in Judge Engelmayer’s words, that both HHS programs and those who receive HHS funds properly “address objections to abortion, sterilization, and assisted suicide, in addition to counseling and referrals related to these services.”
Judge Engelmayer’s gargantuan 147-page opinion deems the Conscience Rule to be an unconstitutional agency overreach, but is primarily concerned with HHS’s alleged statutory violation of the Administrative Procedure Act (APA). Careful readers will recall how the APA has frequently been weaponized against President Donald Trump by a revanchist judicial “resistance.”
Sen. Ben Sasse (R-NE), who was a high-ranking official in the Bush administration’s Office of Legal Policy and is no legal slouch, excoriated the anti-conscience ruling: “This decision is absurd mush. The point of the First Amendment — especially the free exercise of religion — is to protect the conscience rights of Americans. In this country, government doesn’t get to tell you that your faith is fine on Sunday at church but not Monday at work.” Ed Whelan has a similarly critical post today at National Review’s “Bench Memos” blog, arguing that the rudimentary logic undergirding Judge Engelmayer’s administrative law analysis is non-sensical hogwash.
It is possible that this is not the most prudent hill to die on. But perhaps it is; after all, there is no issue more foundational to the American experiment than religious liberty and protection of individual conscience rights. But whether this particular lawless “nationwide injunction” represents the ideal time to push back once and for all against judicial tyranny run amok, it is surely as clear a reminder as ever that it is long past time for President Trump to openly defy a truly lawless, debilitating district court ruling.
The notion of a “nationwide injunction” is axiomatically self-contradictory; by its plain meaning, “[t]he judicial power” of which the Article III of the Constitution speaks only extends to the individual litigants in a specific “case” or “controversial[y]” properly before a federal tribunal. Chief Justice John Marshall’s most famous passage in the judicial review-establishing 1803 case of Marbury v. Madison makes this point extraordinarily clear: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.” (Emphasis added.) “The judicial power” thus only extends to “particular cases,” and it is in each “particular case” that a court must “expound and interpret” the relevant law as it applies to those particular litigants.
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. … At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
As Lincoln observed, norms of prudence and the inherent concept of the Article III judgment power alike do caution the president to enforce a federal court ruling as it pertains to named litigants to a lawsuit. But in our constitutional order, the binding scope of judicial power goes no further than that. If President Trump were so inclined, he could therefore treat all parties not expressly named as litigants in the Conscience Rule lawsuit as not being bound by Judge Engelmayer’s diktat. Indeed, such an action would accord with the Madisonian conception of the separation of powers, as described in The Federalist No. 51, that “[a]mbition must be made to counteract ambition.” It would be beneficial and positively healthy for our constitutional order to see such “[a]mbition … counteract[ing] ambition.”
Again, perhaps this case is not the ideal hill upon which Trump ought to launch such a constitutional broadside. But until the president of the United States begins to push back against the fallacious and unconstitutional notion that a single federal district court judge can bring the entirety of an executive branch program to a screeching halt, nothing else in our politics truly matters. What is the point of governing, after all, if the “least dangerous” branch of the federal government is allowed to usurp powers it manifestly does not possess without any resistance whatsoever from the more powerful federal departments — Congress and the presidency?
I had a conversation a little over a year ago with a well-known lawyer who previously clerked on the U.S. Supreme Court for a conservative justice. I asked him/her what would be the single best action President Trump could take to help restore a more constitutionally principled separation of powers structural equilibrium. That former clerk responded to me: “Defy a lawless court order.” I hope you are listening, Mr. President.