Josh Hammer

and i know that because people have been writing about this actually for a very long time we can go all the way back to thomas jefferson at least in 1804 writing a letter to abigail adams the wife famously of his partisan rival john adams thomas jefferson famously said that to allow the judiciary to settle all questions even when it comes to the legitimate authority of the other branches of the congress or the executive branch would be to risk despotism abraham lincoln really said it best

in his first inaugural address in 1861, where he said that the candid citizen must confess that where you have ordinary litigation between two parties, and that that somehow results in fixing national policy for all of the people throughout the land, because a court says so, that is, at that point, the people will have ceased to be their own rulers, because they will have allowed that eminent tribunal, aka the court, to be a juristocracy.

in his first inaugural address in 1861, where he said that the candid citizen must confess that where you have ordinary litigation between two parties, and that that somehow results in fixing national policy for all of the people throughout the land, because a court says so, that is, at that point, the people will have ceased to be their own rulers, because they will have allowed that eminent tribunal, aka the court, to be a juristocracy.

This is judicial supremacy, but that is not the American system of governance there. It Judges, Charlie, in our system of governance, in our constitutional structure, judges have the power to bind the parties to a case, period, full stop, end of story. Anything beyond that, it is persuasive authority that can or cannot be listened to depending on whether the legal reasoning is cogent and coherent.

This is judicial supremacy, but that is not the American system of governance there. It Judges, Charlie, in our system of governance, in our constitutional structure, judges have the power to bind the parties to a case, period, full stop, end of story. Anything beyond that, it is persuasive authority that can or cannot be listened to depending on whether the legal reasoning is cogent and coherent.

But the executive branch has every ability in the world to faithfully interpret the Constitution and to enforce the Constitution within their legitimate sphere of influence. The birthright citizenship thing would be a very good example there. SCOTUS has never definitively ruled one way or the other as to whether or not there is birthright citizenship for the children of illegal aliens, a.k.a.

But the executive branch has every ability in the world to faithfully interpret the Constitution and to enforce the Constitution within their legitimate sphere of influence. The birthright citizenship thing would be a very good example there. SCOTUS has never definitively ruled one way or the other as to whether or not there is birthright citizenship for the children of illegal aliens, a.k.a.

anchor babies. In fact – There's a lot of evidence that that's not supposed to be the end. That is not constitutionally required. So because that's an unresolved question, the executive can 1,000% choose to enforce its own understanding.

anchor babies. In fact – There's a lot of evidence that that's not supposed to be the end. That is not constitutionally required. So because that's an unresolved question, the executive can 1,000% choose to enforce its own understanding.

At some point, sooner rather than later, basically ASAP here, the United States Supreme Court is going to have to take a direct challenge to the entire practice of so-called nationwide injunctions. And as Clarence Thomas alluded to in his concurring opinion back in the 2018 case of Trump versus Hawaii, the landmark immigration case,

At some point, sooner rather than later, basically ASAP here, the United States Supreme Court is going to have to take a direct challenge to the entire practice of so-called nationwide injunctions. And as Clarence Thomas alluded to in his concurring opinion back in the 2018 case of Trump versus Hawaii, the landmark immigration case,

As Thomas said in his concurring opinion, SCOTUS is going to have to rein in these lower court judges, and that's going to have to happen, I think, ASAP.

As Thomas said in his concurring opinion, SCOTUS is going to have to rein in these lower court judges, and that's going to have to happen, I think, ASAP.

So in practice, I think the most concrete thing that SCOTUS can do is to say that nationwide injunctions are actually not a thing. And I think to this law review article here, I guess we'll nerd out just for a second here. So there was a law review article in the Harvard Law Review in December 2017 by a fantastic conservative legal scholar by the name of Sam Bray.

So in practice, I think the most concrete thing that SCOTUS can do is to say that nationwide injunctions are actually not a thing. And I think to this law review article here, I guess we'll nerd out just for a second here. So there was a law review article in the Harvard Law Review in December 2017 by a fantastic conservative legal scholar by the name of Sam Bray.

He's actually currently teaching in Notre Dame Law School, probably the single greatest piece of legal scholarship on the question of so-called nationwide injunctions.

He's actually currently teaching in Notre Dame Law School, probably the single greatest piece of legal scholarship on the question of so-called nationwide injunctions.

And he just persuasively demonstrates over the course of this legal scholarship that it's not a thing there because, again, the injunctive power, when courts are issuing an injunction, what they are doing in actuality is they are telling a certain defendant and a certain plaintiff that their actions with respect to each other have to go a certain way.

And he just persuasively demonstrates over the course of this legal scholarship that it's not a thing there because, again, the injunctive power, when courts are issuing an injunction, what they are doing in actuality is they are telling a certain defendant and a certain plaintiff that their actions with respect to each other have to go a certain way.

But it does not reach beyond the ambit of the named defendant and the named plaintiff there. This is a modern thing. The There was no such thing as a nationwide injunction until the 1960s. That was the very first recorded instance of one in the late 1960s, I think during the Lyndon Johnson presidency, maybe even the Nixon presidency there.