00:00Thank you to each of the witnesses for your testimony.
00:13Professor Blackman, prior to 1963, had any federal court issued a nationwide injunction blocking federal law or executive policy?
00:23I'm not aware of any.
00:24Would you agree that from the founding through the 20th century, the federal judiciary consistently understood its powers to be limited to the parties before the court?
00:36Yes.
00:37And would you agree that the widespread use of universal or nationwide injunctions, especially against presidential actions, is a recent development emerging in the last decade?
00:48Yes.
00:49That's important history.
00:51Because what we're seeing now is not normal.
00:54And we have over two centuries of history when this didn't happen.
00:59It is instead a novel and dangerous concentration of judicial power.
01:06When a single district judge issues a nationwide injunction, are they acting as a constitutional judge or as a de facto national policymaker?
01:21It's effectively a veto on the executive branch.
01:24We've seen district judges block President Trump's policies on immigration, energy, birthright citizenship, and even federal hiring and firing.
01:34All prior to any appellate review.
01:36All without any input from Congress, all without any input from Congress, all from one single judge.
01:44Let me offer an analogy.
01:47Suppose the federal government approves a plan to cut down trees in a national forest to make way for a pipeline.
01:53One person, one person who occasionally camps in that forest, the judge not only grants relief to that individual, but certifies a putative class action on behalf of all campers nationwide and issues an order blocking any tree cutting in any forest used by any member of the putative class across all 50 states.
02:16Professor Blackman, is that consistent with the Constitution's design for judicial relief?
02:22No, it is not.
02:22Or is that rather a recipe for nationwide paralysis based on a single courtroom?
02:29Yes.
02:29Would you also agree that the proper constitutional remedy is to address the plaintiff's actual injury, not to give one judge the power to halt activity unrelated to the case at hand?
02:42Article 3 requires that.
02:43And how does Article 3 require that?
02:47Article 3 speaks of cases and controversies.
02:49Specific people have specific injuries.
02:51You cannot grant relief to broad classes doing a certain injury before the court.
02:56And if broader relief is truly necessary, wouldn't that be better handled by class certification, by the appellate courts, or by Congress, not a lone district judge rewriting national policy?
03:08Absolutely.
03:08Can you explain how this pattern of nationwide relief not only intrudes on the president's Article 2 powers, but also undermines Congress's own lawmaking authority?
03:20What ends up happening is you file many lawsuits in many districts seeking parallel relief.
03:27And it only takes one judge to grant the universal injunction.
03:30And once the judge grants the injunction, it's off to the races.
03:33Unless ruling stayed, the executive branch must immediately halt what it's doing.
03:36And this has really changed the way the executive branch in the courts have operated, as you said, over the past decade.
03:42And I think this time is ripe to actually address this issue and figure a way to stop this sort of insanity.
03:46We can't leave it to the Supreme Court to figure everything out.
03:49And, Professor Blackman, your testimony outlines structural reforms that Congress could enact to restore balance.
03:55Can you explain how requiring a three-judge panel drawn from both district and circuit judges would deter judicial overreach and restore legitimacy to preliminary relief?
04:07Well, this is how Congress ran things from much of the 20th century.
04:10They stopped in the 60s and 70s.
04:12The benefit of a three-judge panel is you have diverse voices.
04:15In fact, even on this dais, you don't always agree with each other.
04:18But when you talk to each other, you find perhaps the closer truth.
04:21A single judge acting by himself or herself can often be like a god.
04:24There's no limitation on what they can do.
04:27But the benefit is if you have two circuit and one district, you're basically bypassing this next lay of review.
04:32Have the initial panel three judges and have managed review by the Supreme Court.
04:36We need to cut out this race to the Court of Appeals, this race to the Supreme Court.
04:39Let's compress the process and get to the result quickly enough so these issues of national significance are resolved fairly.
04:44And by the way, if the characterization of these nationwide injunctions by my Democrat colleagues was accurate,
04:53if this was simply a result of, in their view, Trump's repeated lawless activities,
05:00one would assume a three-judge panel would find the same ruling on the merits as a particular lone district judge.
05:07Is that correct?
05:08In theory, but if drawn randomly, I think it's less likely.
05:10Random draws of three-judge panels would be a very good change to see how things would work out.
05:15Well, and much like Sherlock Holmes and the lesson he derived from the dog that did not bark,
05:23in this case, when we hear our Democrat colleagues talking about this is simply enforcing the law,
05:30the dog that isn't barking is why do they keep going to the same handful of radical judges in bright blue districts,
05:36and why will every Democrat on this panel oppose any effort to require a three-judge panel for a nationwide injunction?
05:44And the answer is they know fully well that a fair panel would reject the vast majority of these claims,
05:51and at the end of the day, I think too many Democrat members of this body want to frustrate the will of the voters
05:59who re-elected President Trump and elected a Republican Senate and a Republican House,
06:04and they're perfectly happy for lone judges to impose their own policy preferences
06:09rather than respect the Democratic will of the voters.
