Attorney General

Sessions blasts judges issuing nationwide injunctions, calls them 'super-legislators'

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Jeff Sessions

U.S. Attorney General Jeff Sessions. mark reinstein /

Attorney General Jeff Sessions on Thursday criticized judges who have issued nationwide injunctions that blocked Trump administration policies, calling the judges “super-legislators for the entire United States.”

In prepared remarks to the Heritage Foundation’s Legal Strategy Forum, Sessions said judges are failing to respect Congress and the executive branch, report the National Law Journal (sub. req.) and Politico.

Judges issuing nationwide injunctions have blocked different versions of President Donald Trump’s travel bans, including a Hawaii federal judge who issued an injunction on Oct. 17 that mostly blocked the third version of the travel ban. The judge had relied on a federal appeals decision vacated by the U.S. Supreme Court this week.

“The judiciary is not a superior or policy-setting branch,” Sessions said. “It is co-equal. Those who ignore this duty and follow their own policy views erode the rule of law and create bad precedents and, importantly, undermine the public respect necessary for the courts to function properly.”

Sessions singled out a Brooklyn federal judge as “a particularly striking example” of a judge who fails to respect the other branches of government. Sessions didn’t name the judge in his prepared remarks, but he was referring to U.S. District Judge Nicholas Garaufis, according to the NLJ and Politico.

Garaufis is considering a challenge to the Trump administration’s decision to cancel a program that protected immigrants who came to the United States illegally as children. Garaufis had said at a hearing that the administration’s position was “heartless.”

“With respect,” Sessions said in his prepared remarks, “it is emphatically not the province or duty of courts to say whether a policy is compassionate. That is for the people and our elected representatives to decide. The court’s role is to say what the law is.”

ABA President Hilarie Bass said in a statement that the ABA is “alarmed” about Sessions’ criticism. “Ironically, Sessions complains that judges are not respecting the separation of powers and the concept of co-equal branches of government while at the same time himself disregarding the constitutional independence of the judicial branch,” Bass said.

The judiciary rules on matters that are based on the laws and the Constitution, Bass said. Judges take an oath to protect and defend the Constitution, not to protect “the prerogatives and perspectives” of the executive branch, she said, quoting from Sessions’ speech.

“The courts are an important part of the justice system,” Bass said. “While criticism of judicial decisions is a constitutionally protected right of every American and embedded in our tradition of free and open discussion about government, judges should not be attacked or diminished by another branch of government just because they do not rule in its favor. Judicial independence is critical to maintaining the rule of law in our nation.”

Sessions also spoke about recent settlements. Recently, the Department of Justice settled with many of the 78 plaintiffs challenging the contraceptive mandate in the health care law, a development covered by BuzzFeed News. And on Thursday, the department settled two cases brought by groups who claimed the IRS gave them additional scrutiny because they had words such as “tea party” and “patriots” in their names, announced in this press release.

The IRS expressed a “sincere apology” in one of the cases, the Washington Post reports.

Sessions said in his prepared remarks that the IRS used inappropriate criteria that delayed a grant of tax-exempt status to the groups. “There is no excuse for this conduct,” Sessions said. “Hundreds of organizations were affected by these actions, and they deserve an apology from the IRS. We hope that today’s settlement makes clear that this abuse of power will not be tolerated.”

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