Newt Gingrich Bluntly Discusses Threat Trump Poses To 'Deeply Resistant Establishment'

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At a House Judiciary Committee hearing prior to the Congressional recess, Rep. Scott Fitzgerald (R-WI) spoke to former Speaker Newt Gingrich about immigration policy and universal injunctions.

Transcript

00:00Thank you. We now go to the gentleman from Wisconsin, Mr. Fitzgerald.

00:05And I would ask if I could have 15 seconds of his time.

00:09I yield back to the chairman.

00:11Mr. Speaker Gingrich, I just have one short question, and it is a yes or no, unlike the other one.

00:18In your two decades as a member of Congress, did you see members of Congress put bills in of any sort

00:26because they were popular and felt strongly within their district whether or not they were moving anywhere?

00:32Of course.

00:33And that would include things like impeachment, whether they were likely to succeed or not.

00:38They're political symbols, not legislative symbols.

00:41Very good. I thank you. I thank the gentleman from Wisconsin.

00:44Reclaiming my time. Mr. Larkin, nationwide injunctions, they're a relatively new phenomenon, right?

00:49Isn't that correct?

00:51Yes.

00:52Yeah, it's fair to say nationwide injunctions became more commonplace in the 60s and 70s,

01:00and that is because Congress began authorizing general rulemaking by federal agencies,

01:05such as passage of Clean Air Act or the Clean Water Act.

01:12There are several factors that led to the late development of it.

01:15One is a change in philosophy of what it meant to say that something was unconstitutional.

01:19For example, Professor Samuel Bray explained this at length in his article.

01:23Traditionally, when a court says something was unconstitutional,

01:27it meant the government could not enforce it against you.

01:29Over time, courts gradually began to say, no, that means you can't force it against anybody.

01:35The problem is that overlooks the role that a district court judge has both horizontally and vertically within the federal system.

01:44No one district court judge can bind the appellate court or the Supreme Court.

01:49No one district court judge in Maine can bind a district court judge or any judge in Alaska.

01:55And so, unfortunately, this practice developed and we didn't have anybody stepping back and saying, no, wait a minute,

02:01are there constitutional, statutory, et cetera, limitations on it?

02:06And it has actually hurt both parties because each party has suffered through this process.

02:13Speaker Gingrich, as you mentioned in your testimony, between 2001 and 2023, there were 96 nationwide injunctions issued,

02:21of which 64 were granted against President Trump.

02:26Why do you think the courts have issued nationwide injunctions against President Trump with such frequency?

02:34It's kind of a question we're all pondering right now.

02:38You know, one of my favorite books on the law is the Bramble Bush, which is the 1929 introductory lectures at Columbia Law School,

02:47and which draws a distinction between the law as it is practiced and the law as it is written.

02:53So let's just, at a common sense level, be honest.

02:58Donald Trump represents a profound, fundamental shaking up of a very deeply resistant establishment,

03:05which can be traced back to Franklin Roosevelt in 1933.

03:09You take on a system that's almost 100 years old, the system fights back.

03:13The last great bastion of power held by the left is district court judges and their allies on the Supreme Court.

03:21And they're behaving as a historian.

03:23This is a perfectly natural thing.

03:25They're doing everything they can to stop the president, who was elected by millions of Americans.

03:30They were elected by no one.

03:32But under our system, they have a certain amount of power, not nearly as much as the modern legal system believes,

03:38because the 1958 decision by the Supreme Court, which said we are supreme, is baloney.

03:44The Supreme Court is supreme in Article III.

03:47It is not supreme over the whole Constitution.

03:50And I think we're now going to face a genuinely important, historic conversation as a country

03:56about whether or not unelected judges on a randomized basis, who happen to be 92% Democrat,

04:02have the power to stop the elected commander-in-chief on item after item after item.

04:08My guess is the American people will say to the legislative branch, you've got to be kidding me.

04:13And if Justice Roberts wants to cut this off, he should act now, because this is going to get worse, not better.

04:20Mr. Larkin, I'll just finish up with a quick question about forum shopping.

04:25It's something that's clearly been happening, and we're used to it at the state level within the judiciary,

04:32as well as at the federal level.

04:33I was wondering if you had a comment about that.

04:35Sure.

04:36I mean, the problem is attempted to be avoided by having random assignment.

04:41But unfortunately, there are some times when there's only a limited number of judges in a particular district.

04:48And as a result, if there's only one, that's who you're going to get.

04:51If there are two, you have a 50% chance.

04:54And people wind up doing this, not surprisingly, because they think Judge A is going to give them a better likelihood of success.

05:01Now, you know, that's bad enough when what you're talking about is a damages action,

05:07because that damages action is going to result in a check, perhaps, that goes just to one party.

05:13It's different when you're talking about having one judge in any one town enjoying the entirety of the federal government across the nation.

05:22That's a much more severe problem, and that's why this is a reasonable effort to cabin that.

05:27And, you know, picking favorable judges is a reason why.

05:30Thank you. I'd yield back.

05:32Thank you, gentlemen. We now recognize the gentlelady from California, Ms. Lofgren.

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