Sessions’s prepared remarks to the conservative Heritage Foundation Monday came in the context of a larger complaint about numerous court decisions that have blocked Trump administration actions, particularly its attempted crackdown on illegal immigration, “dreamers” and its ban on transgender people serving in the military. He described these judges as engaging in “judicial activism” and “judicial encroachment.” Sessions said that the behavior of these judges will make them political actors “subject to the same criticism of other political leaders, and the same calls for their replacement.” Federal judges are appointed for life, removable only by impeachment.
The administration has suffered a string of losses in litigation since taking office, starting with judges striking down the first iterations of President Trump’s travel ban and continuing with a series of rulings overturning regulatory decisions by the Environmental Protection Agency.
“When a hot-button policy issue ends up in litigation, judges are starting to believe their role is to examine the entire process that led to the policy decision — to redo the entire political debate in their courtrooms,” he said. “We have seen it in the litigation over the DACA rescission, the order about service of transgender individuals in the military, and the decision to terminate Temporary Protected Status” for immigrants from Haiti, El Salvador and other countries.
“Federal district court judges are not empowered to fashion immigration policy, combat climate change, solve the opioid crisis, or run police departments,” Sessions said. “The legislative and executive branches — of federal and state government — are the constitutionally authorized branches to do these things, and if these branches haven’t done so to the satisfaction of an unaccountable judge, it’s not because they need judicial expertise or advice.”
He saved his harshest words for what he described as the “invasive” inquiries judges are permitting into the decision-making processes of the administration.
“Right now,” Sessions said, “we are litigating one case where the district court has authorized a deposition of the secretary of commerce about the decision to reinstate a question on the census. The court believes this is proper because it wants to probe the secretary’s motives,” Sessions stated.
“But the census question — which has appeared in one form or another on the census for over a hundred years — is either legal or illegal. The words on the page don’t have a motive; they are either permitted or they are not. But the judge has decided to hold a trial over the inner-workings of a Cabinet Secretary’s mind. This is not the first time we’ve had to seek emergency appellate intervention to stop outrageous discovery,” he said, referring to the pending appeal to the Supreme Court to block Ross’s deposition as well as that of John Gore, the acting assistant attorney general for the Justice Department’s civil rights division.
Sessions made no mention of the reasons the federal judge, Jesse M. Furman in New York, backed by an appeals court, granted a motion by the State of New York and other plaintiffs to have Ross explain the controversial decision. As a panel of the U.S. Court of Appeals for the 2nd Circuit said last week, Furman’s order was justified by evidence of “bad faith or improper behavior” by Ross.
The lawsuit stems from Ross’s announcement in March that he was adding a question about the citizenship of respondents to the 2020 Census, a move that critics say was motivated by bias and likely to produce an undercount favoring Republicans by suppressing responses from immigrants. Eighteen states, the District of Columbia and a host of cities, counties, mayor and advocacy groups brought suit to block the decision.
Furman, along with at least two other federal judges in similar cases brought by other plaintiffs, have said the accusations that the administration acted improperly are sufficient to justify moving ahead to trials.
The “bad faith” to which the court referred concerns Ross’s shifting and contradictory accounts of his action. Around the time of the citizenship question announcement, Ross stated in sworn testimony before a congressional committee that the Justice Department had initiated the move in the interest of enforcing the Voting Rights Act.
But in successive amendments to his original explanation after lawsuits were filed, Ross admitted in June that he had asked Justice to make the request to Commerce, rather than the other way around. In his most recent submissions to the court, he admitted that he had acted after talking with former White House adviser Stephen K Bannon, as well as Sessions and others, statements that also appeared at odds with his congressional testimony, as The Post’s Tara Bahrampour reported.
“The idea that any district judge can demand to see the deliberations of the executive branch” will have “a chilling effect,” Sessions said. “Subjecting the executive branch to this kind of discovery is unacceptable. We intend to fight this and we intend to win. This is why we are taking these discovery fights to the Supreme Court in emergency postures. They are disrupting orderly governmental functions at great cost.”
A decision from the high court could come any day.