00:00Senator Whitehouse, and now I recognize Chairman Schmidt.
00:03Thank you. Thank you, Senator Cruz.
00:05As chairman of the Subcommittee of the Constitution, I'm glad that we've convened this hearing.
00:09Universal injunctions effectively didn't happen for the first 200 years of our Constitution,
00:16yet they've become a fixture in our legal system in the last 20, especially when Donald Trump occupies the White House.
00:22The courts can play an important role in reigning in an executive branch that's out of control.
00:26This is especially important when reigning in actions by unelected, unaccountable bureaucrats
00:31who act outside of the scope of their congressionally authorized authority.
00:36But what happens when Article III has no limits?
00:41As listed in the hearing's title, Alexander Hamilton called the judiciary the least dangerous branch in Federalist 78.
00:49And historically, in Federalist 78, Historic was responding to the Anti-Federalist Brutus,
00:54who was raising the alarm bell over the seemingly unchecked power of Article III
00:59to subvert the will of the people and the rights of citizens.
01:03Hamilton responded that judges will be forced to behave because nothing guarantees that their orders are enacted.
01:09Judges can't raise an army. They can't collect taxes or duties.
01:13As Hamilton said, the judiciary must ultimately depend on the aid of the executive branch to enforce its judgments.
01:20To date, the Trump administration has followed every court order, enforced every judgment.
01:27It's no one's desire to put Hamilton's theory into practice.
01:31That is why this hearing is so important.
01:33We are not a juristocracy.
01:36We do not want the judiciary to subjugate itself.
01:40We want to keep it from subjugating others.
01:43I agree with Hamilton that there is no liberty if the power of judging is not separated from the legislative and executive powers.
01:52But this runs both ways.
01:55There can be no democratic accountability, no Republican government with an overly activist judiciary
02:01that allows over 600 judges to wield limitless power.
02:06On one particularly troubling example, district court judges have not been assigned cases randomly or transparently.
02:17In March, Chief Justice Boesberg, right here in D.C., has found himself into four major Trump cases, a statistical impossibility.
02:28Boesberg took over the Alien Enemies Act and ordered planes to be turned around in the dead of night,
02:36despite not being the emergency judge on duty that night.
02:40It seems clear that as Chief Judge, he has play and he wants to be able to grab cases for himself.
02:49I've had first-hand experience with this non-random case assignment in our federal appellate court system.
02:56When I was Attorney General of Missouri, I often found myself litigating in the Eighth Circuit, a circuit of unique makeup.
03:03Of the eleven judges in the circuit, ten had been appointed by Republicans.
03:08Yet, the one Democrat appointee, Judge Jane Kelly, found herself hearing nearly every political sensitive case in the circuit.
03:19Time after time, case after case, miracle after miracle, for the Democrats, Judge Kelly would be there for nearly every politically sensitive case.
03:30This was not due to the good luck of Judge Kelly.
03:34The circuit clerk's office, which assigned cases to appellate panels, was filled with her former clerks and ideological compatriots.
03:41In practice, they set the nationwide policy by rigging case assignment.
03:47Another issue is the universal injunction is a judicially-created remedy while Congress set up a procedure for group relief under Rule 23.
04:00As Solicitor General John Sauer recently argued, compellingly, the proper avenue for group relief is under Rule 23 class actions.
04:09Rule 23 was designed to ensure a structured and fair approach to broad legal challenges.
04:15I'm hopeful that the Supreme Court will curb injunctions to restore proper judicial limits and respect the separation of powers.
04:24A district judge blocking deportations is as absurd as directing military strategy.
04:32This is activism, not judgment, not the rule of law, and it undermines the voters' mandate to secure our borders.
04:41Enough is enough.
04:42We must act here in the Senate to fix these issues.
04:46Article 1 isn't alone in this.
04:48The Judicial Conference and the Supreme Court must get their houses in order as well.
04:54Does our Constitution establish a judiciary that resolves cases or sets policy?
05:00In this committee, do we confirm judges to take the bench or to take the podium?
05:06The founders clearly intended the former.
05:09It's time for a reset.
05:11The American people elected President Trump to secure our border and restore our nation.
05:16I look forward to the testimony of the professors, and I urge this committee to advance reforms that uphold the separation of powers.
