S.Hrg.119-174

1[Senate Hearing 119-174]2[From the U.S. Government Publishing Office]34                                                        S. Hrg. 119-17456               THE SUPPOSEDLY ``LEAST DANGEROUS BRANCH'':7                        DISTRICT JUDGES V. TRUMP8                       JOINT SUBCOMMITTEE HEARING910=======================================================================1112                                HEARING1314                               before the1516                    SUBCOMMITTEE ON FEDERAL COURTS,17                       OVERSIGHT, AGENCY ACTION,18                           AND FEDERAL RIGHTS1920                                AND THE2122                    SUBCOMMITTEE ON THE CONSTITUTION2324                                 OF THE2526                       COMMITTEE ON THE JUDICIARY27                          UNITED STATES SENATE2829                    ONE HUNDRED NINETEENTH CONGRESS3031                             FIRST SESSION32                               __________3334                              JUNE 3, 202535                               __________3637                           Serial No. J-119-2138                               __________3940         Printed for the use of the Committee on the Judiciary4142                 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]4344                        www.judiciary.senate.gov45                            www.govinfo.gov46                                ______4748                  U.S. GOVERNMENT PUBLISHING OFFICE495061-716                    WASHINGTON : 20265152                       COMMITTEE ON THE JUDICIARY5354                  CHARLES E. GRASSLEY, Iowa, Chairman55LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois,56JOHN CORNYN, Texas                     Ranking Member57MICHAEL S. LEE, Utah                 SHELDON WHITEHOUSE, Rhode Island58TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota59JOSH HAWLEY, Missouri                CHRISTOPHER A. COONS, Delaware60THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut61JOHN KENNEDY, Louisiana              MAZIE K. HIRONO, Hawaii62MARSHA BLACKBURN, Tennessee          CORY A. BOOKER, New Jersey63ERIC SCHMITT, Missouri               ALEX PADILLA, California64KATIE BOYD BRITT, Alabama            PETER WELCH, Vermont65ASHLEY MOODY, Florida                ADAM B. SCHIFF, California6667             Kolan Davis, Chief Counsel and Staff Director68         Joe Zogby, Democratic Chief Counsel and Staff Director6970              Subcommittee on Federal Courts, Oversight,71                   Agency Action, and Federal Rights7273                         TED CRUZ, Texas, Chair74LINDSEY O. GRAHAM, South Carolina    SHELDON WHITEHOUSE, Rhode Island,75MICHAEL S. LEE, Utah                   Ranking Member76THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut77JOHN KENNEDY, Louisiana              MAZIE K. HIRONO, Hawaii78ERIC SCHMITT, Missouri               ALEX PADILLA, California79                                     PETER WELCH, Vermont8081                Michael Berry,  Republican Chief Counsel82                 Claire Kim,  Democratic Chief Counsel8384                    Subcommittee on the Constitution8586                     ERIC SCHMITT, Missouri, Chair87JOHN CORNYN, Texas                   PETER WELCH, Vermont,88MICHAEL S. LEE, Utah                   Ranking Member89TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island90JOSH HAWLEY, Missouri                MAZIE K. HIRONO, Hawaii91JOHN KENNEDY, Louisiana              CORY A. BOOKER, New Jersey92MARSHA BLACKBURN, Tennessee          ALEX PADILLA, California93                                     ADAM B. SCHIFF, California9495                 Ethan Harper, Republican Chief Counsel96                Ryan Ferguson, Democratic Chief Counsel9798                            C O N T E N T S99100                              ----------101102                           OPENING STATEMENTS103104                                                                   Page105106Grassley, Hon. Charles E.107    Prepared statement...........................................    44108Durbin, Hon. Richard J...........................................     8109Cruz, Hon. Ted...................................................     1110Schmitt, Hon. Eric...............................................     4111Whitehouse, Hon. Sheldon.........................................     3112Welch, Hon. Peter................................................     6113114                               WITNESSES115116Alicea, J. Joel..................................................    17117    Prepared statement...........................................    49118    Responses to written questions...............................    65119Blackman, Josh...................................................    14120    Prepared statement...........................................    52121    Responses to written questions...............................    69122Shaw, Kate.......................................................    15123    Prepared statement...........................................    56124    Responses to written questions...............................    74125126                                APPENDIX127128Items submitted for the record...................................    79129130                             THE SUPPOSEDLY131                      ``LEAST DANGEROUS BRANCH'':132                        DISTRICT JUDGES V. TRUMP133134                              ----------135136                         TUESDAY, JUNE 3, 2025137138                      United States Senate,139        Subcommittee on Federal Courts, Oversight,140 Agency Action, and Federal Rights, joint with the,141                          Subcommittee on The Constitution,142                                Committee on the Judiciary,143                                                    Washington, DC.144    The Subcommittees met, pursuant to notice, at 2:36 p.m., in145Room 226, Dirksen Senate Office Building, Hon. Ted Cruz, Chair146of the Subcommittee on Federal Courts, Oversight, Agency147Action, and Federal Rights, and Hon. Eric Schmitt, Chair of the148Subcommittee on The Constitution, presiding.149    Present: Senators Cruz, Schmitt [presiding], Whitehouse,150Welch, Hawley, Kennedy, Blackburn, Blumenthal, Hirono, Booker,151and Schiff.152    Also present: Senator Durbin.153154              OPENING STATEMENT OF HON. TED CRUZ,155             A U.S. SENATOR FROM THE STATE OF TEXAS156157    Chair Cruz. Good afternoon. I hereby call to order this158hearing on ``The Supposedly `Least Dangerous Branch': District159Judges v. Donald J. Trump.'' This hearing is a joint160undertaking by the Subcommittee on The Constitution and the161Subcommittee on Federal Courts because our country is facing a162constitutional crisis, a full-blown judicial assault on the163separation of powers that strikes at the very foundation of the164republic.165    What we are witnessing is the rise of judicial lawfare from166the bench. One unelected district judge sitting in a courtroom167in San Francisco or Boston or Baltimore can now issue a168nationwide injunction that ties the hands of the President of169the United States for all 330 million Americans. That is not170law; that is judicial tyranny.171    President Donald Trump was elected by over 77 million172Americans with a constitutional mandate to govern. These173district judges, they were not elected. They were appointed by174one individual and confirmed not to legislate, not to govern,175but to apply the law. And yet, far too many of them have176abandoned that role. They've have stepped off the bench and177into the political arena, issuing sweeping edicts that impose178their policy preferences on 340 million Americans.179    Let's walk through just a few of the most egregious recent180examples. Economic policy: In New York City, the Court of181International Trade struck down all of President Trump's182tariffs under IEEPA, declaring that they exceeded executive183authority. It was not judging; it was judges replacing the184President's judgment on declaring a national emergency. And, of185course, that ruling was almost immediately stayed by the court186of appeals.187    Deportation policy: In Baltimore, the chief judge for the188District Court of Maryland issued an order preventing the189removal of illegal aliens detained anywhere in the country,190granting 2 days of automatic protection to anyone who files a191habeas petition in Maryland, all without a hearing or legal192findings. This single Maryland judge dictated national193deportation policy and then tried to claw back the damage by194amending the order. As Chairman of the Subcommittee on Federal195Courts, I am investigating this overreach, and I have sent a196letter to the Judicial Conference of the United States.197    But the judges did not stop there. In D.C., a judge blocked198the Federal Government from requiring proof of citizenship to199vote, overriding election integrity laws across all 50 States.200    In Boston, a judge weighed in on birthright citizenship,201deciding a question of nationwide consequence for millions of202illegal aliens, despite the plaintiffs being solely one203pregnant mother and two nonprofit organizations. That is204absurd. That is policymaking and legislating. That is not205adjudication.206    In Boston, a different judge blocked a Department of Energy207rate cap, handcuffing efforts to lower taxpayer costs for208energy research.209    In Rhode Island, a judge ordered the Federal Government to210immediately disburse tens of millions of dollars under the211Inflation Reduction Act and other programs. The Department of212Energy alone was forced to release $50 million by judicial213fiat.214    In San Francisco, a judge mandated that the Office of215Personnel Management rehire all terminated Federal workers and216restricted future firings, effectively turning the judiciary217into an H.R. department.218    Yet another Maryland judge halted orders intending to stop219funding for institutions mutilating minors through so-called220gender transitions. These deeply consequential decisions were221blocked, not by voters, not by Congress, but in each instance222by one unelected judge.223    And it doesn't stop there. Since President Trump returned224to office in January, there have been over 40 universal225injunctions issued against the Federal Government. That is in 4226months. Thirty-five of those 40 came from the same 5 judicial227districts. Let's put this into context. In the first 150 years228of the republic, zero nationwide injunctions were issued. Zero.229That is for 150 years. In the entirety of the 20th century, 27230nationwide injunctions were issued. That is over 100 years231[points at poster].232    [Poster is displayed.]233    Under Presidents Bush, Obama, and Biden combined, 32234nationwide injunctions. Under President Trump's first term, 4235years, 64 nationwide injunctions, and now in just 4 months, we236are already over 40. In 4 months, the Trump administration has237seen more nationwide injunctions than the entirety of the 20th238century and more nationwide injunctions than Presidents George239W. Bush, Barack Obama, and Joe Biden combined. This is not240normal. This is not justice. This is an orchestrated campaign241of judicial obstruction.242    [Poster is displayed.]243    Joe Biden, when he was President, nominated to the bench244radicals. I have said only slightly tongue-in-cheek that Joe245Biden did something I used to think was impossible. He made me246miss Barack Obama. But by comparison, the Biden judicial247nominees were far more extreme and radical than they were under248Obama. They sought out radicals who would implement249policymaking from the bench, and they are doing precisely that.250That is not democracy, and that is not our Constitution.251    This hearing is to highlight the effects of this judicial252tyranny, of single judges deciding they know better when it253comes to policy than do the voters of America. We need to254defend democracy.255    And with that, I recognize Senator Whitehouse.256257         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,258         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND259260    Senator Whitehouse. Thank you, Senator Cruz.261    When I Chaired the Subcommittee on Federal Courts, we held262hearings on the influence on our judiciary of dark money from263the fossil fuel industry and from creepy billionaires. My264Republican colleagues weren't interested in helping solve that265problem, but those hearings were based on facts. Years of266financial disclosures showed a secret billionaire gifts program267for amenable Supreme Court justices. Written evidence suggested268a justice may have failed to pay taxes on a $270,000 loan that269was forgiven, and that false statements were made about a270yacht. A mountain of evidence revealed President Trump271outsourced to billionaires and their dark money fixer, Leonard272Leo, the selection of his judges and Supreme Court justices,273which President Trump admitted just last week. Apparently, Leo274also, and I am quoting Trump here, ``openly brags'' about275controlling the judges his creepy billionaires got appointed.276    This hearing will be different. A lot of hypocrisy about277nationwide injunctions against the Trump administration after278Republican colleagues cheered the nationwide injunctions that279courts issued against the Biden administration. Indeed, some280colleagues filed lawsuits asking for nationwide injunctions281against the Biden administration, but now they are shocked,282shocked that there are nationwide injunctions.283    Here are some facts everyone should bear in mind during284this hearing. Fact number one, Donald Trump's administration is285engaged in unprecedented lawlessness, period. In less than 5286months, President Trump has issued almost as many Executive287orders as President Biden did during 4 years in office. Many288are flat out on their face illegal, as any first-year law289student could tell you.290    Trump tried to end 14th Amendment birth rights citizenship.291He tried to punish law firms' First Amendment rights to292associate with his perceived political enemies. His fossil fuel293minion at OMB, Russ Vought, withheld millions of dollars that294Congress had appropriated under Article I. More than 20 years295ago, originalist icon Scalia wrote about how illegal that is.296    The madcap pace and roughshod lawlessness of Trump's297executive actions mean district judges across the country are298striking them down, not because of judicial obstruction,299because he is breaking the law. Hearings like this prop up a300narrative that bad courts are stopping dear leader Donald Trump301because some cabal of Democratic judges is out to get him.302Wrong. The reality is much simpler. He is breaking the law and303doing it a lot, and judges are doing their job.304    It is not just me saying that. Trump-appointed judges from305across the country have struck down his illegal actions,306holding, for instance, that Trump can't punish the AP for its307reporting, that his misuse of the Alien Enemies Act is illegal,308and that the administration can't withhold billions of309appropriated public health funds. Trump judges, hardly a310liberal conspiracy.311    As it tries to prop up Trump's illegal orders, the MAGA312Justice Department is fast destroying its reputation with313judges who've have said about DOJ arguments, ``bad faith,''314``shoddy,'' ``an admitted lack of any evidence whatsoever,''315``deliberate evasion,'' shocking not only to judges but to the316intuitive sense of liberty that Americans far removed from317courthouses still hold dear. And the prospect of contempt318findings looms.319    Fact number two, failing in court, Donald Trump and his320allies attack judges and their families. Trump has called321judges who ruled against him communists, USA-hating, and322monsters. A Republican in Congress put up a wanted poster with323judges' faces outside his office. Elon Musk and Laura Loomer324have used X to fire up the right wing's flying monkeys about325judges, even adding photos of family members in a seemingly326coordinated campaign to harass and intimidate.327    A test is coming of MAGA Attorney General Bondi. Will she328let the Marshals Service investigate these threats and their329orchestration? There is plenty of predication to look into330conspiracy, aiding and abetting, or RICO enterprise liability.331Will she let them?332    Which brings me to fact number three. In a 6-week period333from March through April, 162 judges received threats to334themselves or family members of harassment or violence, 162. A335pattern was evident. Many had ruled against Trump and then were336targeted. The latest tactic is a campaign to send pizzas to337judges or family members' homes using the name of the murdered338son of a Federal judge. It is not clear yet who is behind that339campaign, but it is not hard to figure out the message. Stop340ruling against Trump or else.341    These attacks have gotten so bad that the Chief Justice342issued a statement and the Judicial Conference formed a343Judicial Security and Independence Task Force. Now I would like344to see some sign that the threats are being duly investigated.345To the extent that this hearing encourages that animus further,346it is deeply regrettable.347    Chair Cruz. I thank Senator Whitehouse and now recognize348Chairman Schmitt.349350            OPENING STATEMENT OF HON. ERIC SCHMITT,351           A U.S. SENATOR FROM THE STATE OF MISSOURI352353    Chair Schmitt. Thank you. Thank you, Senator Cruz. As354Chairman of the Subcommittee of the Constitution, I am glad355that we have convened this hearing.356    Universal injunctions effectively didn't happen for the357first 200 years of our Constitution, yet they become a fixture358in our legal system in the last 20, especially when Donald359Trump occupies the White House. The courts can play an360important role in reining in an executive branch that is out of361control. This is especially important when reining in actions362by unelected, unaccountable bureaucrats who act outside of the363scope of their congressionally authorized authority.364    But what happens when Article III has no limits? As listed365in the hearing's title, Alexander Hamilton called the Judiciary366the ``least dangerous branch'' in Federalist 78. And367historically, in Federalist 78, historicals was responding to368the Anti-Federalist Brutus, who was raising the alarm bell over369the seemingly unchecked power of Article III to subvert the370will of the people and the rights of citizens.371    Hamilton responded that judges will be forced to behave372because nothing guarantees that their orders are enacted.373Judges can't raise an army. They can't collect taxes or duties.374As Hamilton said, the Judiciary must ultimately depend on the375aid of the Executive branch to enforce its judgments. To date,376the Trump administration has followed every court order,377enforced every judgment. It is no one's desire to put378Hamilton's theory into practice.379    That is why this hearing is so important. We are not a380juristocracy. We do not want the Judiciary to subjugate itself.381We want to keep it from subjugating others. I agree with382Hamilton that there is no liberty if the power of judging is383not separated from the legislative and Executive powers. But384this runs both ways. There can be no Democratic accountability,385no Republican government with an overly activist judiciary that386allows over 600 judges to wield limitless power.387    One particularly troubling example, district court judges388have not been assigned cases randomly or transparently. In389March, Chief Justice Boasberg, right here in D.C., has found390himself into four major Trump cases, a statistical391impossibility. Boasberg took over the Alien Enemies Act and392ordered planes to be turned around in the dead of night,393despite not being the emergency judge on duty that night. It394seems clear that, as chief judge, he has play and he wants to395be able to grab cases for himself.396    I have had firsthand experience with this non-random case397assignment in our Federal appellate court system. When I was398attorney general in Missouri, I often found myself litigating399in the Eighth Circuit, a circuit of unique makeup. Of the 11400judges in the circuit, 10 had been appointed by Republicans.401Yet, the one Democrat appointee, Judge Jane Kelly, found402herself hearing nearly every political sensitive case in the403circuit. Time after time, case after case, miracle after404miracle, for the Democrats, Judge Kelly would be there for405nearly every politically sensitive case.406    This was not due to the good luck of Judge Kelly. The407circuit clerk's office, which assigned cases to appellate408panels, was filled with her former clerks and ideological409compatriots. In practice, they set the nationwide policy by410rigging case assignment.411    Another issue is the universal injunction is a judicially412created remedy while Congress set up a procedure for group413relief under Rule 23. As Solicitor General John Sauer recently414argued compellingly, the proper avenue for group relief is415under Rule 23 class actions. Rule 23 was designed to ensure a416structured and fair approach to broad legal challenges. I am417hopeful that the Supreme Court will curb injunctions to restore418proper judicial limits and respect the separation of powers. A419district court or district judge blocking deportations is as420absurd as directing military strategy. This is activism, not421judgment, not the rule of law, and it undermines the voters'422mandate to secure our borders.423    Enough is enough. We must act here in the Senate to fix424these issues. Article I isn't alone in this. The Judicial425Conference and the Supreme Court must get their houses in order426as well. Does our Constitution establish a judiciary that427resolves cases or sets policy? In this Committee, do we confirm428judges to take the bench or to take the podium? The Founders429clearly intended the former. It is time for a reset.430    The American people elected President Trump to secure our431border and restore our Nation. I look forward to the testimony432of the professors, and I urge this Committee to advance reforms433that uphold the separation of powers.434    Chair Cruz. Thank you. I now recognize Ranking Member435Welch.436437             OPENING STATEMENT OF HON. PETER WELCH,438            A U.S. SENATOR FROM THE STATE OF VERMONT439440    Senator Welch. Thank you very much.441    You know, the concrete issues of a universal injunction or442forum shopping are things that we can address, but there is a443context that we are all operating in, and this is where I444disagree with my colleagues, particularly Senator Cruz and his445recitation of what he saw as a judicial rampage. This moment we446are in in our country is testing whether the separation of447powers, three co-equal branches of government, shall endure.448That is really the question.449    We have seen an abdication of constitutional responsibility450by the Congress. It is appalling. Ceding to a President the451ability to impound funds, something that was declared452unconstitutional in the Nixon doctrine; ceding to the President453tariff authority, which in the Constitution belongs to the454policymakers in Congress, just two examples of Congress ceding455its constitutional authority. That's done willingly by my456colleagues in the House and some in the Senate. We should457reassert our authority.458    But the second leg of that, the transfer of authority to459the Executive, is the rampant attack on the judiciary. And460Senator Cruz gave some examples of what he thought was judicial461overreach. Each one of those examples, as I see it, was the462judges doing their job. They disagreed. And when they463disagreed, it was asserted by the President and by the Attorney464General that they were monsters, they were renegades, they were465out of control. It was an ad hominem attack because judges were466doing their jobs.467    And I will say we can deal with the forum shopping, which468is something the private bar gets involved in. We can deal with469universal injunctions. But the all-out assault on judges470because they make decisions, which is the job they have to do.471And the decision is, has a President exceeded his authority?472The decision is, has the Congress passed a law that deviates473from constitutional requirements?474    Those are so profoundly important to keep that separation475of powers and to keep the competition between the three476branches so that we don't have absolute power vested in a477single person, and that is the Chief Executive.478    So when Senator Cruz, you talk about a judge making this479decision about keeping somebody here, it is called due process.480I am for due process. When we talk about judges striking down481under the international trade agreement, whether the President482has authority to set these tariffs, and it is a three-judge483decision, one appointed by Trump, one appointed by Obama, one484appointed by Reagan, and they say the President didn't have485authority, I would say that is the judges doing their jobs.486    But what is most profoundly important for the well-being of487our country is that the Congress reassert its authority to pass488laws to restrict the Executive or to empower the Executive, but489not to cede our authority to the Executive ever. And it is our490responsibility to do every single thing we can to validate the491legitimate exercise of the decisionmaking authority of the492judiciary.493    I look forward to this hearing and the testimony of the494witnesses. Thank you.495    Chair Cruz. Thank you. I would make two brief observations.496Number one, it is interesting, as our Democrat colleagues497defend these nationwide injunctions, that neither of them made498any reference to the fact that the number of nationwide499injunctions issued in the first 4 months is greater than the500entire 20th century and is greater than all of the nationwide501injunctions issued against Bush, Obama, and Biden combined, nor502did they address the disturbing fact that of the 40 universal503injunctions that have been issued in the last 4 months, 35 of504them came from the same five judicial districts.505    There is a reason for this. Blue State attorneys general506and radical leftist groups are seeking out affirmatively507radical judges who they know will impose their own policy508preferences. If it were simply, as our Democrat colleagues509said, judges following the law, then you wouldn't have to keep510going to the same radical judges over and over and over again511because judges across the board should do that. But the512litigants know exactly who the zealots are that are on the513bench, and that is who they are seeking out.514    I will also point out that the discussion about the urgency515of protecting the safety of judges, listen, I agree. We should516protect the safety of every Federal judge, but it is517interesting because my Democrat colleagues were utterly silent518during 4 years of the Biden administration when you had violent519mobs outside the homes of Supreme Court justices, unhappy with520the Supreme Court's ruling in Dobbs, and the Biden Justice521Department refused to enforce Federal law and protect the522justices. And my Democrat colleagues were perfectly happy with523Supreme Court justices being threatened if they disliked the524rulings that were coming from the Supreme Court justices.525    Unlike my colleagues, I believe we should protect judges.526Regardless of whether I agree with them or not, we should527protect their safety. And every time you hear a Democrat528Senator talk about protecting judges from acts of violence, you529ought to ask them, why did they not have a word to say about530the Biden Justice Department allowing mobs to threaten the531families and children of Supreme Court justices night after532night after night while Biden's attorney general refused to533follow the law?534    And with that, I will recognize the Ranking Member of the535Full Committee, Senator Durbin.536537         OPENING STATEMENT OF HON. RICHARD J. DURBIN,538           A U.S. SENATOR FROM THE STATE OF ILLINOIS539540    Senator Durbin. Thank you, Senator Cruz.541    They asked Winston Churchill after World War II how he542thought history would treat him and his conduct of the war. He543said, ``I am not worried about it because I plan on writing544that history,'' which he did.545    Today, we see an example of revisionist history from the546Chairman, the statement he just made about concern over the547safety of Federal judges. I cannot remember a single instance548of what he just described, not one, when there were protests549and demonstrations before the homes of judges, regardless of550who appointed them, Republican or Democrat. Our feeling was551they were all entitled to a guarantee of safety to the best of552our ability. And that is what I did as Chairman of this553Committee, and I believe I spoke for the Democrats in that554approach.555    The title of this hearing says a lot in full, ``The556Supposedly `Least Dangerous Branch': District Judges v.557Trump.'' The idea being pushed by my Republican colleagues is558not only that the judicial branch and district judges are559dangerous, but they are dangerous for the plain and simple560reason that some judges have had the audacity to rule against561President Trump. When the Chairman from Texas starts talking562about the number of times they have been ruling by the court, I563have three words for him, flood the zone, flood the zone.564    When Steve Bannon was asked, what is the policy, what is565the strategy of the new Trump administration? We are going to566flood the zone, and they did. More Executive orders issued by567this President in the beginning of his Presidency than any568President in history, leading to more court challenges than any569President in history. It seems pretty logical to me.570    By framing the hearing as they have, my Republican571colleagues have shown their hand. This hearing is not really572about policy or legal issues. Instead, it is about challenging573the authority and legitimacy of the judiciary. They are showing574their undying loyalty to their leader, the President.575    This hearing is merely the latest episode in an ongoing576effort by President Trump and his allies to undermine the577judiciary and intimidate judges who dare to rule against them.578In March, the President demanded the impeachment of a Federal579judge simply because he ruled against his administration,580calling him quote, and I quote--I want you to hear these581words--``a radical left lunatic, a troublemaker, and582agitator.'' In May, President Trump referred to judges who583ruled against his administration as ``communist radical left584judges.'' Two days ago, the President posted, ``If the courts585somehow rule against us on tariffs, which is not expected, that586would allow other countries to hold our Nation hostage with587their anti-American tariffs that they would use against us.588That would mean the economic ruination of the United States of589America.''590    These statements that I have just read are not normal. It591is difficult to imagine either President Bush, President Obama,592or President Biden using such unhinged, bombastic, and childish593language or calling for the impeachment of a judge simply594because that judge ruled against his administration. The reason595it is difficult is because Obama, Biden never did anything like596this. But imagine if they had and how Congressional Republicans597would have responded. They would have shouted about it from the598rooftops, posted furiously on social media, and the only person599they would have considered impeaching would have been the600President himself.601    But because this President is a Republican, because the602President and his allies go after anyone who dares to speak up,603because fear of political retribution is now at the core of604this MAGA world, my Republican colleagues have been silent as605the President has made the statements he has about judges.606Instead of rushing to defend the judiciary and our system of607government, they are rushing to defend the President.608    While my colleagues on the other side may try to make it609appear as though decisions of district courts against the610President are somehow dangerous, in reality, it is the attacks611on the judiciary itself that are dangerous to both the rule of612law and to the actual judges themselves. I could go through613chapter and verse of Federal judges who have been intimidated614physically. In fact, deaths have occurred in the Northern615District of Illinois. One of my judges, she is now retired,616lost her husband and her mother to a litigant who attacked her617at her home. It is serious.618    I don't think it is a mere coincidence this spike in619violence against judges coincided with increasingly harsh620rhetoric against the same judges and the President's personal621call for the impeachment of a Federal judge on March 18. Some622judges and family members have received threats in the form of623hundreds of anonymous pizza deliveries to their home. Pizza624deliveries? These deliveries are an effort to demonstrate that625those seeking to intimidate a targeted judge know exactly where626those judges live.627    Nearly a month ago, I sent a letter--a month ago, a letter628to the Attorney General Bondi and FBI Director Patel asking629them to investigate this effort with the pizza deliveries and630other threats against Federal judges and to provide information631on steps they are taking to protect those judges and their632families. I did not designate just Democratic-appointed judges633or Republican-appointed judges, but all judges. Showing the634priorities of this administration, I am sorry to say, I have635yet to receive a response from either the attorney general or636the director of the FBI.637    In the meantime, I ask my Republican colleagues to join me.638Let us recognize that violence begets violence. Threats of639violence, whether from the right or left of the political640spectrum, are never, never acceptable. People are welcome to641debate the merits of any particular judicial decision, but we642cannot condone personal attacks and threats against judges who643rule against this administration, and we can't allow partisan644politics or the latest outrage from the President to undermine645the judicial branch in our constitutional order. I yield.646    Senator Booker. Mr. Chairman, would you indulge me for a647moment?648    Chair Cruz. We indulge you every moment.649    Senator Booker. I appreciate that act of generosity.650    It is just something you said that I think is actually651dangerous and should be addressed, and you are welcome. But652when Judge Daniel Anderl was killed in New Jersey, the653Republican colleagues in the Senate, their outpouring of654support, their outpouring of concern, their willing to work655together on a bipartisan bill was extraordinary. It shows the656truth of this institution that, despite some of the fiery657rhetoric that you were sowing, we are really working in658bipartisanship.659    Cornyn and Coons, after the incidents you are talking660about, got together and actually passed a bill to better661protect our Supreme Court justices, many of whom are friends of662ours. You know, Gorsuch and I disagree on a lot of stuff. I663knew his wife before he did. We studied together at Oxford.664This implication that there was silence when there were threats665on their people's houses is absolutely absurd. I remember the666rhetoric and the comments, the concern from Coons. I actually667distinctly remember you, Chairman, more than once condemning668those attacks on Republican-appointed jurists.669    To say things like that feeds just the partisanship in this670institution and feeds the fiery rhetoric, and it is just plain671not true. It is just plain not true. And I think you know that,672but we can pull from the record from my colleagues in real673time, literally days afterwards, condemning it.674    There is a lot of substantive things to say here, but to675think that the lack of humanity when people's homes are being676threatened was not in existence, I think that is unfair and677really concerns me that you would say that in the way that you678did.679    Chair Cruz. Well, I thank my colleague from New Jersey.680    I will note, as John Adams observed, that facts are681stubborn things. And it is existing Federal law, 18 USC Section6821507, that makes it a crime to protest at a judge's home. And683the law provides, ``Whoever, with the intent of interfering684with, obstructing, or impeding the administration of justice,685or with the intent of influencing any judge, juror, witness, or686court officer, in the discharge of his duty, pickets or parades687in or near a building housing a court of the United States, in688or near a building or residence occupied or used by such judge,689juror, witness, or court officer, or with such intent uses any690sound-truck or similar device or resorts to any other691demonstration in or near any such building or residence, shall692be fined under this title or imprisoned not more than 1 year,693or both.'' That is Federal criminal law.694    Night after night after night, angry mobs were outside the695Supreme Court justices' homes. And in the entire course of it,696the Biden Justice Department prosecuted nobody. We had the697attorney general sitting at that table and multiple Republican698Senators asked him, why are you not enforcing the law? What699they are doing is a crime. And my friend from New Jersey said,700``It is a lie to say we, the Democrats, condone this.'' I would701challenge, my friend, find a single Democrat Senator on this702Committee holding the Attorney General to account for not703enforcing this law. I was here at those hearings, and I do not704recall a single Democrat Senator saying to the Attorney705General, you should arrest these people who are violating the706law, you should protect the judges.707    I agree that there was general language against violence,708but not a single Democrat Senator that I ever saw in this709Committee was willing to hold Attorney General Merrick Garland710to account for flagrantly disregarding the Federal criminal law711because the Biden administration agreed with the protesters and712I think wanted those justices harassed at their home.713    Senator Booker. Mr. Chairman, I really appreciate that you714have now shifted the accusation you made earlier. Your715accusation was that we were silent in the face of protests at716Supreme Court justices' homes. Again, we joined together in a717bipartisan way, not only to condemn that, but to pass718legislation to extend round-the-clock security protection,719literally days. It was introduced May 5, passed the Senate in a720bipartisan fashion on May 9. So if you are saying that we721didn't criticize Merrick Garland----722    Chair Cruz. Did the Biden DOJ arrest a single person under723this law?724    Senator Booker. Sir, you are now changing----725    Chair Cruz. No, that is what I said.726    Senator Booker [continuing]. The accusation that you made--727--728    Chair Cruz. That is what I said.729    Senator Booker. Again, I will pull the record.730    Chair Cruz. Did the Biden DOJ arrest even one?731    Senator Booker. Again----732    Chair Cruz. The answer is no.733    Senator Booker. My point to you is the accusation that the734Democrats on this Committee do not care about the safety----735    Chair Cruz. All right. So let me ask you this----736    Senator Booker [continuing]. Of Federal judges----737    Chair Cruz. Should the Biden DOJ----738    Senator Booker. I did not interrupt you, sir. I would739appreciate if you let me finish. I am sick and tired of hearing740the kind of heated partisan rhetoric, which is one of the741reasons why we have such divisions in this country. The attacks742we see from the President of the United States of America743trolling and dragging judges through is what we should be744talking about that puts people in danger.745    I am simply taking issue with the claim that you made at746the top that people on the Democratic side of the aisle do not747care about the safety and the security of judges and said748nothing. You said we were silent after people's houses were749protested. That is a patent lie, sir. We were not silent. We750took action. We joined in a bipartisan way to protect those751judges, as was done in a bipartisan way to protect a New Jersey752judge after their horrific attack at their home.753    So I see you now trying to shift the debate to whether we754talk to an Attorney General. I am simply taking issue with this755accusation that somehow we Democrats are so bad because we756don't call out threats to our judicial colleagues. And that is757wrong. You could change the argument now that you want, but758what you said was patently not true and was, in fact, a patent759lie.760    Chair Cruz. So I do enjoy the fact that my colleague from761New Jersey raises his voice and says it is a patent lie and762says he is doing so in defense of lowering the rhetoric. There763is some irony to doing those two together.764    I'll point out that in the entire course of those remarks,765Senator Booker did not dispute the central point I made, which766is the Biden Justice Department arrested zero people,767prosecuted zero people for violating the criminal law, and768every Democrat Senator on this Committee was silent about it.769And this was an ongoing pattern for months.770    And I would note also that the Senator from New Jersey771clutched his pearls about language threatening judges, and yet772I do not recall a single Democrat Senator of this Committee773saying a word when Chuck Schumer went to the steps of the774Supreme Court and threatened the safety of the Supreme Court775justices by name, Gorsuch and Kavanaugh, and he said, ``You776have unleashed the whirlwind, and you will pay the price.'' And777not a single Democrat Senator had a word to say about this. And778so their outrage is selective.779    And I will give my colleague from New Jersey a chance to780just answer a simple yes-no question. Should the Biden Justice781Department have enforced the criminal law against protesting at782a justice's home, yes or no?783    Senator Booker. So the rank hypocrisy of Chuck Schumer784apologizing the next day and you holding that standard for him785and not for your President, who you actually rightfully786described when you were running against him in a primary, I787would love to run those tapes of how you perfectly talked about788the danger of our President and his rhetoric. But now you are789failing--in fact blind to the very things you are accusing790Chuck Schumer of. I don't think Donald Trump would know an791apology if it hit him in the head. Never has said apologizing.792So again, you are very, very--sir, very, very deep into the793waters of hypocrisy in your criticisms of Chuck Schumer.794    Chair Cruz. So let the record reflect that Spartacus did795not answer the question and did not tell us whether the796criminal law should be enforced because he knows the answer is797yes, and he knows that the Biden Department of Justice was798being wildly political and partisan in refusing to enforce the799law because they disagreed with the Supreme Court justices'800rulings.801    I have and also in addition to Senator Durbin, who has802given his opening statement, I have a written opening statement803from Chairman Grassley. Without objection, that written804statement is entered into the record.805    [The information appears as a submission for the record.]806    Chair Cruz. And I will now briefly introduce our807distinguished witnesses. We have three.808    Our first witness is Professor Josh Blackman, who holds the809Centennial Chair of Constitutional Law at South Texas College810of Law in my hometown of Houston, Texas, where he has been811teaching since 2012. And although Professor Blackman was born812and grew up in Staten Island, he got to Texas as fast as he813could. And both of his daughters are proud native-born Texans,814and I commend you for that.815    He is one of the country's leading voices on constitutional816law. He has testified before Congress. He is a frequent voice817in The New York Times, The Wall Street Journal, The Washington818Post. He, in 2024, was named the Jurist of the Year from the819Texas Review of Law and Politics, an award that is near and820dear to my heart since in a previous year I received the same821award. And he is a senior editor of The Heritage Guide to the822Constitution, Third Edition, and he has authored three books,823including An Introduction to Constitutional Law, which became a824top five bestseller on Amazon.825    Our second witness is Professor Kate Shaw. Professor Shaw826is a constitutional law scholar and professor of law at the827University of Pennsylvania Carey School of Law. She joined the828Penn Carey Law faculty in January 2024 from the Benjamin N.829Cardozo School of Law, where she also served as codirector of830the Floersheimer Center for Constitutional Democracy. Her831scholarship focuses on Executive power, the law of democracy,832the Supreme Court, and reproductive rights. She has also taught833courses on administrative law and legislation, as well as a834seminar on the U.S. Supreme Court.835    Before entering academia, Professor Shaw served in the836Obama White House Counsel's Office and clerked for U.S. Supreme837Court Justice John Paul Stevens and Judge Richard Posner of the838U.S. Court of Appeals for the Seventh Circuit. Her academic839writing has appeared in the Harvard Law Review, Columbia Law840Review, Georgetown Law Journal, and other journals. She is841married to Chris Hayes, a political commentator and host on842MSNBC.843    And our third witness Chairman Schmitt will introduce. And844if you can start the testimony, I have got to run to the floor845and vote, and then I will be back.846    Chair Schmitt. Okay. The third witness is Joel Alicea, and847he is the inaugural St. Robert Bellarmine professor of law848director of the Law School Center for the Constitution and the849Catholic Intellectual Tradition. He has also served as a850visiting professor at Duke Law School and Notre Dame Law851School.852    Prior to joining the Catholic Law faculty, Professor Alicea853practiced law for several years at the law firm of Cooper and854Kirk, where he specialized in constitutional litigation. He855previously served as a law clerk for Justice Samuel Alito on856the U.S. Supreme Court and for Judge Diarmuid O'Scannlain on857the United States Court of Appeals for the Ninth Circuit.858    Professor Alicea's scholarship has focused on859constitutional theory, civil procedure, and constitutional law.860He has been involved in the ongoing discussion on nationwide861injunctions and the scope of the judicial power, both in the862academy and in working with the Trump administration.863    And at this point, before you guys give your opening864statements, it is the tradition of this Committee to be sworn865in, so if you would please stand and raise your right hand.866    [Witnesses are sworn in.]867    Chair Schmitt. Thank you. Professor Blackman, we will start868with you.869870  STATEMENT OF JOSH BLACKMAN, PROFESSOR OF LAW AND CENTENNIAL871   CHAIR OF CONSTITUTIONAL LAW, SOUTH TEXAS COLLEGE OF LAW,872                         HOUSTON, TEXAS873874    Professor Blackman. Thank you. Chairman Cruz, Chairman875Schmitt, Ranking Member Whitehouse, Ranking Member Welch, thank876you so much for inviting me to testify. My name is Josh877Blackman, and I am the centennial chair of constitutional law878at the South Texas College of Law, Houston.879    The topic of today's hearing is very timely, ``The880Supposedly `Least Dangerous Branch': District Judges v.881Trump.'' It is often repeated that we have three coequal882branches of government, but this isn't true. In Federalist 78,883Hamilton described the judiciary as the least dangerous branch.884Unlike Congress, which has the power of the purse, and the885President has the power of the sword, the courts have mere886judgment, yet it has been deeply ingrained in our consciousness887that the courts' foundational role is to balance the powers of888the elected branches.889    Indeed, Chief Justice Roberts recently boasted that the890courts ``check the excesses'' of Congress and the Executive,891but the Chief Justice is incorrect. Indeed, Vice President892Vance recently explained that Roberts expressed a ``profoundly893wrong'' sentiment. Or more local to me, Judge Ho in Houston894aptly observed, ``It is not the role of the judiciary to check895the excesses of the other branches any more than it is the896judiciary's role to check the excesses of any other American897citizen.''898    The question is, who will check the excesses of the899Executive? At least with regard to the lower courts, you all,900Congress. The Constitution refers to the Federal district901courts as inferior courts, yet far too many lower court judges902seem to have a superiority complex. We are witnessing a never-903ending onslaught of universal injunctions that make it nearly904impossible for the executive branch to function.905    So what can be done? We can't look to the courts to check906themselves. The long history of judicial supremacy teaches that907judges of all stripes, conservative and progressive, seek to908defend and entrench their own institution. The answer to any909sustainable reform must come from the legislature. To910paraphrase Madison in Federalist 51, legislative ambition must911counteract judicial ambition.912    Yet regrettably, most debates about judicial reform get913bogged down in politics. When there is a Republican President,914Democrats love the universal injunction. When there is a915Democratic President, Republicans love the universal916injunction. It is predictable.917    Proposals that help only one side of the aisle have a slim918chance of enactment. The Federal courts cannot be reformed919through unilateral disarmament. Any reform must be bilateral.920    I published an article called ``Bilateral Judicial Reform''921in the Texas A&M Journal of Law and Civil Governance. This was922in 2024, before the election. And I got 10 ideas to fix the923courts that might appeal to people on both sides of this aisle.924I will talk about three of them in my limited time today.925    Number one, cases seeking a temporary restraining order can926be decided by a single judge, but can only give relief to the927named parties and are limited to 7 days. No longer can a single928judge issue a universal TRO that lasts nearly a month without929any appellate review.930    Second, cases seeking preliminary injunction or equivalent931relief against Federal government and State governments are932referred to the en banc court, which appoints a randomly drawn933three-judge panel with two circuit judges and one district934court judge. There is some value in having a multi-member body935consider an issue rather than a lone district court judge936deciding difficult questions. And rather than having two937district and one circuit, I prefer two circuit, one district938because these cases tend to focus more on law than on facts.939    The third proposal focuses on the appellate process. Chief940Justice Roberts recently stated that the appropriate response941to disagreement with a judge is the normal--he said, ``the942normal appellate review process.'' As things stand now, the943Supreme Court has a completely unpredictable and, indeed,944arbitrary approach to emergency applications. We may all agree945upon that. Congress can make the appellate review process of946the Supreme Court ``normal'' again.947    Under my proposal, injunctions of statutes against Federal948Government and State governments are automatically stayed. The949stay is automatic. It is not discretionary. And if a three-950judge panel submits what I call a certificate of division--that951is, two judges go one way, another judge goes the other way--952the case is appealed to the Supreme Court's mandatory953jurisdiction. They can't deny cert. And oral argument is954decided on an emergency docket timeline, which Congress would955then set.956    I think these three measures would have bipartisan appeal,957which I hope they do, and would go a long way to addressing the958never-ending fights between the President and the judiciary.959    Thank you so much, and I welcome all of your questions.960    [The prepared statement of Professor Blackman appears as a961submission for the record.]962    Chair Schmitt. Thank you. Professor Shaw.963964    STATEMENT OF KATE SHAW, PROFESSOR OF LAW, UNIVERSITY OF965   PENNSYLVANIA CAREY LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA966967    Professor Shaw. Good afternoon, Chairs, Ranking Members,968distinguished Members of the Subcommittees. Thank you for the969invitation to testify today.970    I understand that the purpose of today's hearing is to971discuss recent judicial rulings against the Trump972administration and to situate those rulings in historical and973institutional context. There is no question that the Trump974administration has been on a losing streak in Federal court.975According to the most recent data compiled by Professor Steve976Vladeck, district courts have ruled against the administration977in 97 cases to date. That is a large number, but it is a number978that is best understood in context.979    First, it has to be viewed in the context of the980unprecedented volume of executive action we have seen from this981administration. As of May 24, the second Trump administration982had issued 157 Executive orders. By comparison, the Biden983administration issued 162, nearly the same number, over the984course of 4 years. The first Trump administration issued 220985over 4 years. It is not surprising that this much more986executive action than previous administrations has drawn more987challenges.988    The second thing to understand is that these rulings have989come from judges who sit in district courts across the country990and who were appointed by Presidents of both parties. Twenty-991five district courts in 10 circuits, and 73 judges appointed by992seven Presidents have ruled against this administration.993    That leads me to my third point. These are not about policy994disagreements. The reason there has been such wide and cross995ideological consensus over the impermissibility of the996administration's actions is because the actions have been997plainly unlawful, and that has been clear to jurists of all998stripes. Again and again, the administration has acted in999violation of both the constitutionally required process for1000lawmaking--one that gives Congress primacy--and the rights the1001Constitution commands government to respect.1002    To be sure, some of these preliminary rulings against the1003government will be, and some have been, reversed or stayed on1004appeal. But it is telling that there are so many lower court1005losses that the administration has not even bothered to1006challenge. That is true in the birthright citizenship case1007currently pending in the Supreme Court in which the lower1008courts have unanimously ruled against the administration. But1009the administration has not challenged those rulings on the1010merits. Instead, it has asked the court to use the case as an1011opportunity to restrict lower courts' ability to provide1012nationwide relief and to do that in a context in which the1013administration is not even defending the lawfulness of its own1014Executive order.1015    Rather than focus on the appellate process or on remedying1016the legal defects that have been revealed by litigation, this1017administration and many supporters have suggested that the1018problem is district judges. The separation of powers is1019dynamic, it is not static, and there is definitely room for1020debate about the proper scope of both Presidential and judicial1021power. At different moments in our history, different1022institutions and actors have sought to significantly increase1023their authority, sometimes in ways that could not be squared1024with the basic design of a constitution committed to limits on1025any single entity's power.1026    At this moment, the entity engaging in overreach is the1027executive branch. This administration has been marked by a1028breathtaking degree of Presidential unilateralism that is1029flatly inconsistent with statutes, the Constitution, and over1030two centuries of practice. For that reason, it would be1031profoundly misguided to seek now to curtail courts' authority1032by eliminating or seriously limiting their ability to issue1033nationwide injunctions.1034    It is true that the use of such injunctions has increased1035in recent decades, and it is true that injunctions can be1036abused. But at this moment, courts are the only branch of1037government doing meaningful work to check the Executive,1038protecting basic constitutional values, congressional1039prerogatives, and our liberty which the separation of powers is1040designed to safeguard.1041    If Congress does wish to wade into defending the separation1042of powers, I would suggest a couple of options. First, it could1043give the President some of the authorities he has tried to1044assert. If Congress agrees that the Federal Government should1045not protect Americans from abusive financial products and1046services, it can pass legislation doing away with the Consumer1047Financial Protection Bureau. If it wants to give DOGE access to1048Americans' sensitive personal information, it can repeal or1049amend the Privacy Act. If it wants the President to be able to1050impose sweeping tariffs based on his determinations of trade1051deficits, it can grant that statutory authority. As far as I1052know, it hasn't done any of that.1053    Second, it could turn its attention to judicial security.1054Threats to the physical safety of Federal judges have spiked in1055the last 4 months and so have threats to judicial independence.1056There is a pending proposal that would move the U.S. Marshals1057Service from the executive branch to the judiciary in order to1058ensure that marshals are able to focus effectively on1059protecting Federal judges and executing Federal court orders.1060That would both comport with the original structure of the1061Marshals Service and would align the security practices of the1062judicial branch with those of Congress, right, each branch1063protected by its own security apparatus, not subject to direct1064control by another branch.1065    The Federal courts are an important part of our1066constitutional scheme, and at their best, they can serve both1067to make rights meaningful and to enforce and facilitate core1068commitments to popular sovereignty and self-rule. They have not1069always done that, and again, a healthy democracy allows debates1070about the proper scope of judicial authority.1071    But many attacks on the judiciary do not appear to be1072animated by a desire for good-faith debates about the limits of1073constitutional authority. They seem instead of a piece with1074other efforts to neutralize any actor or institution that would1075seek to limit this President's power.1076    Thank you again for the opportunity to testify, and I look1077forward to your questions.1078    [The prepared statement of Professor Shaw appears as a1079submission for the record.]1080    Chair Schmitt. Thank you, Professor Shaw.1081    Professor Alicea.10821083STATEMENT OF J. JOEL ALICEA, ST. ROBERT BELLARMINE PROFESSOR OF1084  LAW, DIRECTOR, CENTER FOR THE CONSTITUTION AND THE CATHOLIC1085  INTELLECTUAL TRADITION, THE CATHOLIC UNIVERSITY OF AMERICA,1086             COLUMBUS SCHOOL OF LAW, WASHINGTON, DC10871088    Professor Alicea. Mr. Chairman, Ranking Member, Members of1089the Subcommittee, thank you for the invitation to testify1090today. It is an honor to speak with you.1091    While the topic of today's hearing touches on many issues,1092my understanding is that I have been invited to address the1093practice of universal injunctions in particular, and that will1094be the focus of my testimony.1095    An injunction is an order from a court directing an entity1096like a government official or a government agency to do1097something or refrain from doing something. Courts have been1098issuing injunctions for centuries, and when injunctions only1099grant relief to a party to the case, they are generally not1100controversial.1101    What makes universal injunctions controversial is that they1102purport to give relief to entities that were never made parties1103to the case. In the birthright citizenship cases now before the1104court, for example, a district court judge in Seattle issued an1105injunction forbidding the enforcement or implementation of the1106President's Executive order on a nationwide basis. That means1107that the Executive order cannot be enforced against anyone,1108even though the only parties challenging the order were four1109States and two individuals.1110    Now, universal injunctions are damaging to our political1111and legal system for many reasons. The effect of a universal1112injunction is that the policies of the elected President are1113subject to what is effectively a veto by unelected district1114court judges. Because it only takes a single judge to issue a1115universal injunction, the President's opponents only have to1116win one lawsuit to stop the President, whereas the President1117has to win every single lawsuit if he wants to implement his1118challenged policies.1119    Because they place unelected district court judges in1120charge of national policy, universal injunctions are a problem1121for Presidents of both parties. This is not a partisan issue.1122But universal injunctions have been used at an astonishing rate1123against President Trump in particular, which is why the issue1124has become so prominent over the last few months. For example,1125during the month of February alone, more universal injunctions1126were issued against President Trump's policies than in the1127first 3 years of the Biden administration.1128    The result has been an atmosphere of continuous emergency1129throughout the first few months of President Trump's second1130term. It seems as if every time the President issues a new1131policy, it is almost immediately followed by a district court1132issuing a universal injunction.1133    Since the President cannot allow a single judge to dictate1134national policy, the administration has had to seek emergency1135intervention by a court of appeals, and whichever party loses1136in the court of appeals then seeks emergency intervention by1137the Supreme Court. The court has therefore been inundated with1138almost nonstop emergency litigation, partly because of the1139practice of universal injunctions. The seemingly unending1140stream of emergency petitions has forced the court to make1141quick decisions on controversial and contested legal questions,1142often without the benefit of oral argument, adequate briefing,1143or different views expressed by the lower courts.1144    This is not how our constitutional system was designed to1145work. Article III, Section 1 of the Constitution vests the1146judicial power of the United States in the Federal courts. As1147understood at the founding, the core meaning of the judicial1148power was the authority to resolve disputes between parties1149according to law. This party-centric understanding of judicial1150power explains why Article III, Section 2 of the Constitution1151extends the judicial power only to cases or controversies, that1152is, disputes between parties. And that is why the Supreme Court1153has repeatedly held that parties do not have standing to seek1154relief beyond what is necessary to remedy the alleged harm to1155the plaintiff.1156    Prior to 1789, injunctions were understood to be limited.1157An injunction could only provide whatever relief was necessary1158to redress a plaintiff's asserted injury. The same1159understanding of injunctions prevailed until the mid-20th1160century. Universal injunctions, it bears emphasizing, are a116120th century development, and the routine use against1162government action only began within the last decade. Thus,1163Federal courts lack the power to grant equitable remedies that1164extend beyond what is necessary to address the plaintiff's1165alleged harm, which is precisely what universal injunctions1166purport to do.1167    The American people never gave judges the power to issue1168universal injunctions. Judges have seized that power for1169themselves, and only quite recently in our history. District1170court judges are thus exercising power for which they have no1171constitutional warrant.1172    While universal injunctions have damaged the Presidency and1173the Supreme Court, they have done the most damage to democratic1174governance by illegitimately thwarting the will of the people's1175elected representatives. As Justice Elena Kagan once observed,1176``It just can't be right that one district judge can stop a1177nationwide policy in its tracks and leave it stopped for the1178years that it takes to go through the normal process.''1179    Courts play a vital role in our constitutional system. They1180resolve disputes between parties according to law, and in the1181process of doing so, they say what the law is, as Chief Justice1182John Marshall said in Marbury v. Madison. None of that is at1183issue in the controversy over universal injunctions. What is at1184issue is whether courts can step beyond their limited role of1185resolving legal disagreements between parties and instead1186resolve policy disagreements for the whole Nation. The answer1187to that question should be obvious. No.1188    [The prepared statement of Professor Alicea appears as a1189submission for the record.]1190    Chair Cruz. Thank you to each of the witnesses for your1191testimony.1192    Professor Blackman, prior to 1963, had any Federal court1193issued a nationwide injunction blocking Federal law or1194executive policy?1195    Professor Blackman. I am not aware of any.1196    Chair Cruz. Would you agree that from the founding through1197the 20th century, the Federal judiciary consistently understood1198its powers to be limited to the parties before the court?1199    Professor Blackman. Yes.1200    Chair Cruz. And would you agree that the widespread use of1201universal or nationwide injunctions, especially against1202Presidential actions, is a recent development emerging in the1203last decade?1204    Professor Blackman. Yes.1205    Chair Cruz. That is important history because what we are1206seeing now is not normal, and we have over two centuries of1207history when this didn't happen. It is instead a novel and1208dangerous concentration of judicial power. When a single1209district judge issues a nationwide injunction, are they acting1210as a constitutional judge or as a de facto national1211policymaker?1212    Professor Blackman. It is effectively a veto on the1213executive branch.1214    Chair Cruz. We have seen district judges block President1215Trump's policies on immigration, energy, birthright1216citizenship, and even federal hiring and firing, all prior to1217any appellate review, all without any input from Congress, all1218from one single judge.1219    Let me offer an analogy. Suppose the Federal Government1220approves a plan to cut down trees in a national forest to make1221way for a pipeline. One person who occasionally camps in that1222forest files a lawsuit. The judge not only grants relief to1223that individual, but certifies a putative class action on1224behalf of all campers nationwide and issues an order blocking1225any tree cutting in any forest used by any member of the1226putative class across all 50 States. Professor Blackman, is1227that consistent with the Constitution's design for judicial1228relief?1229    Professor Blackman. No, it is not.1230    Chair Cruz. Or is that rather a recipe for nationwide1231paralysis based on a single courtroom?1232    Professor Blackman. Yes.1233    Chair Cruz. Would you also agree that the proper1234constitutional remedy is to address the plaintiff's actual1235injury, not to give one judge the power to halt activity1236unrelated to the case at hand?1237    Professor Blackman. Article III requires that.1238    Chair Cruz. And how does Article III require that?1239    Professor Blackman. Article III speaks of cases and1240controversies. Specific people have specific injuries. You1241cannot grant relief to broad classes who don't have an asserted1242injury before the court.1243    Chair Cruz. And if broader relief is truly necessary,1244wouldn't that be better handled by class certification by the1245appellate courts or by Congress, not a lone district judge1246rewriting national policy?1247    Professor Blackman. Absolutely.1248    Chair Cruz. Can you explain how this pattern of nationwide1249relief not only intrudes on the President's Article II powers1250but also undermines Congress' own lawmaking authority?1251    Professor Blackman. What ends up happening is you file many1252lawsuits in many districts seeking parallel relief, and it only1253takes one judge to grant the universal injunction. And once a1254judge grants the injunction, it is off to the races. Unless the1255ruling stayed, the executive branch must immediately halt what1256it is doing. And this has really changed the way the executive1257branch and the courts have operated, as you said, over the past1258decade. And I think the time is ripe to actually address this1259issue and figure a way to stop this sort of insanity. We can't1260leave it to the Supreme Court to figure everything out.1261    Chair Cruz. And Professor Blackman, your testimony outlines1262structural reforms that Congress could enact to restore1263balance. Can you explain how requiring a three-judge panel1264drawn from both district and circuit judges would deter1265judicial overreach and restore legitimacy to preliminary1266relief?1267    Professor Blackman. Well, this is how Congress ran things1268for much of the 20th century. They stopped in the 1960's and12691970's. The benefit of a three-judge panel is you have diverse1270voices. In fact, even on this dais, you don't always agree with1271each other. When you talk to each other, you find perhaps the1272closer truth. A single judge acting by himself or herself can1273often be like a god. There is no limitation of what they can1274do. But the benefit is, if you have two circuit and one1275district, you are basically bypassing this next-level review.1276Have the initial panel of three judges and have managed review1277by the Supreme Court. We need to cut out this race to the court1278of appeals, this race to the Supreme Court. Let's compress the1279process and get through it quickly enough so these issues of1280national significance resolve fairly.1281    Chair Cruz. And by the way, if the characterization of1282these nationwide injunctions by my Democrat colleagues was1283accurate, if this was simply a result of, in their view,1284Trump's repeated lawless activities, one would assume a three-1285judge panel would find the same ruling on the merits as a1286particular lone district judge. Is that correct?1287    Professor Blackman. In theory, but if drawn randomly, I1288think it is less likely. Random draws of three-judge panels1289would be a very good change to see how things would work out.1290    Chair Cruz. Well, and much like Sherlock Holmes and the1291lesson he derived from the ``dog that did not bark,'' in this1292case, when we hear our Democrat colleagues talking about this1293is simply enforcing the law, the dog that isn't barking is why1294do they keep going to the same handful of radical judges in1295bright blue districts, and why will every Democrat on this1296panel oppose any effort to require a three-judge panel for a1297nationwide injunction? And the answer is they know fully well1298that a fair panel would reject the vast majority of these1299claims. And at the end of the day, I think too many Democrat1300members of this body want to frustrate the will of the voters1301who reelected President Trump and elected a Republican Senate1302and a Republican House, and they are perfectly happy for lone1303judges to impose their own policy preferences rather than1304respect the Democratic will of the voters.1305    Senator Whitehouse.1306    Senator Whitehouse. Thank you. It strikes me that what we1307have here is a team that has taken the field and engaged in1308unprecedented numbers of fouls and unprecedentedly flagrant1309fouls. And when the refs blow the whistle on the unprecedented1310number of fouls, the partisans of the team committing the fouls1311call out the referees for the unprecedented number of whistles1312that they blow.1313    To try to level set this, let me ask, if you can do a yes1314or no answer, let's try to go right down the panel, yes or no.1315Is it appropriate to call judges USA-hating monsters who want1316our country to go to hell?1317    Professor Blackman. No.1318    Senator Whitehouse. No.1319    Professor Shaw. No, Senator.1320    Professor Alicea. In general, no, Senator.1321    Senator Whitehouse. And is it appropriate to call judges1322lunatics who do not care even a little bit and could very well1323lead to the destruction of our country?1324    Professor Blackman. I don't think so.1325    Professor Shaw. No.1326    Professor Alicea. No.1327    Senator Whitehouse. And is it appropriate to post pictures1328of judges' children with the intent to incite harassment and1329threats?1330    Professor Blackman. No.1331    Professor Shaw. No.1332    Professor Alicea. No.1333    Senator Whitehouse. Okay, good. We are off to a level set.1334I will take that.1335    Professor Alicea, when you were installed in your chair,1336the announcement was that the chair was made possible through1337the generosity of Leonard Leo, trustee of both the Marble1338Freedom Trust and Catholic University. Is that accurate? Is1339that who funded your chair?1340    Professor Alicea. My understanding is that Leonard Leo,1341through the Marble Freedom Trust, directed funds that funded1342the chair. I think that is accurate.1343    Senator Whitehouse. And with respect to your chair, Mr.1344Blackman, $1 million was given to fund it through an1345anonymizing organization called DonorsTrust, which has been1346called the ATM of the far right. Do you know who was behind1347that DonorsTrust laundered donation?1348    Professor Blackman. I appreciate the question, Senator. I1349would direct all these to my college to answer.1350    Senator Whitehouse. I am sorry, first of all, your mic is1351not on.1352    Professor Blackman. No, I appreciate the question, Senator.1353I would direct all these questions about this to my college.1354Thank you.1355    Senator Whitehouse. My question is actually to you, and it1356is whether you know. Do you know who was behind that?1357    Professor Blackman. I appreciate the question. Anonymous1358gifts are as they are, and I appreciate all those questions1359directed to my college.1360    Senator Whitehouse. Your college can't answer what you1361know. This is a question to you about what you know. This is a1362Josh Blackman question.1363    Professor Blackman. Thank you, Senator.1364    Senator Whitehouse. Do you know who funded your chair?1365    Professor Blackman. I have answered the question.1366    Senator Whitehouse. Yes or no?1367    Professor Blackman. Thank you, Senator.1368    Senator Whitehouse. You can't say this. Do you realize that1369if you were an expert witness in a judicial proceeding, I would1370be entitled to know who was funding you because it goes to bias1371and conflict, correct? That is basic sort of hornbook trial1372practice, right?1373    Professor Blackman. Fair enough, Senator. I----1374    Senator Whitehouse. I am right about that. You will agree.1375    Professor Blackman. We were invited to testify about1376nationwide injunctions and the like. This is not something I1377was prepared to testify about, so that is my answer for today.1378    Senator Whitehouse. Okay. Well, at least we know who funded1379Professor Alicea, and you won't even answer what you know.1380    Let me turn to Professor Shaw. Let's just say that this1381activity today is designed to whip up more animus against1382courts and that it adds to the atmosphere of threats that the1383court is now experiencing. I think we are up to, is it 1621384threats to judges, which is pretty impressive. And a lot of1385this has the appearance, at least to me, of looking like it was1386orchestrated, looking like it was instigated, looking like1387there are folks behind it.1388    [Poster is displayed.]1389    So, presumably, the Marshals Service should be not just1390protecting the judges and their family members, but also1391investigating the sources of the threats. Can you tell us what1392some warning signs would be that the Marshals Service has been1393directed, perhaps by the Attorney General or perhaps by some1394other senior official in the Department of Justice, to not do1395proper investigations and particularly not look into1396orchestration or any effort to gin up these threats?1397    Professor Shaw. Senator, I have no information. It strikes1398me that a non-response to your queries or queries from other1399Members of Congress to the Marshals Service or to the1400Department of Justice are concerning. There should be an active1401dialog between the branches about something as serious as the1402security of the third branch.1403    And I guess I would just echo what Senator Booker was1404saying earlier. I mean, there have been two relatively recent1405periods when bipartisan legislation was passed to improve1406judicial security after the tragic murder of Judge Salas' son1407and also after the attempted attack on Justice Kavanaugh.1408Judicial security measures on a bipartisan basis quickly passed1409Congress, and I would hope that this is a moment in which broad1410agreement could be reached that it is necessary to do something1411similar.1412    Senator Whitehouse. And if it appeared that those were part1413of a larger plan or conspiracy, it would be appropriate for law1414enforcement to look into the question of whether there was a1415larger plan or conspiracy, correct?1416    Professor Shaw. Absolutely.1417    Senator Whitehouse. Thank you.1418    Chair Cruz. I would note that Senator Whitehouse asked two1419of the three witnesses about private donations given to their1420respective law schools but somehow omitted Professor Shaw. And1421I guess I would ask of Professor Shaw, are you aware of what's1422been publicly reported in disclosures that your employer, the1423University of Pennsylvania, from 2013 to 2019 received from1424communist China $67,618,610? Have you seen those public1425reports?1426    Professor Shaw. I am sorry, Senator, I have not.1427    Chair Cruz. Well, they are publicly reported and $671428million from communist China. If we are going to just clarify1429the record, let's clarify the record across the board.1430    Professor Shaw. If I may----1431    Senator Whitehouse. The record----1432    Professor Shaw [continuing]. I actually don't hold an1433endowed chair, so I--there was no--I don't have an endowed1434chair personally, so I don't think I was being singled out for1435any reason but that I don't----1436    Chair Cruz. But you do work for Penn?1437    Professor Shaw [continuing]. Have one. I do work for Penn,1438yes.1439    Chair Cruz. Chairman Schmitt.1440    Chair Schmitt. Thank you. I suppose to further the analogy1441that Senator Whitehouse gave of reffing a game, I don't think1442anybody has a problem on this side of the aisle with a ref1443calling balls and strikes or calling a foul. The problem is,1444what if the ref's daughter hired the coach? What if the ref has1445money on the game? What if people start to question the1446legitimacy of the ref in the game? We all know what happens.1447People don't watch it anymore. Vegas takes the game off the1448board.1449    So it gets to sort of this question of, as I referenced in1450my opening statement with Hamilton, the reason why it is1451supposed to be, you know, the least dangerous branch is it1452relies on the other two branches for enforcement. And the1453Article III branch should be very well aware that if they lose1454legitimacy, they are cooked. And that is why we are having the1455hearing, because people are questioning--how does Judge1456Boasberg--and I would actually ask you, Professor Blackman. I1457will pose this as a question. How in the world does Judge1458Boasberg get a case when he is not the emergency assignment1459judge, he is on vacation in the middle of the night? How can1460that happen?1461    Professor Blackman. I don't know. And perhaps even more1462significant, if you read the transcript of the case, he1463basically told the plaintiffs to change their case. They1464brought it one way, he said, no, here, plead it this way. Okay,1465good. Now, I am going to certify class and issue a ruling and1466go tell the plaintiffs--he basically litigated the case on1467behalf of the parties. This wasn't merely a passive bystander.1468He was an active participant.1469    Chair Schmitt. It is a statistic impossibility. And I want1470to sort of--I referenced what had been going on in the Eighth1471Circuit. Ten of the 11 appellate judges in the Eighth Circuit1472appointed by Republicans. Amazingly, Judge Kelly ends up on all1473the politically sensitive cases on a panel. It is not possible,1474except for the clerks there in that office or the people that1475work for the clerk's office are populated by her former clerks.1476So these are the kinds of things that this isn't just a new1477phenomenon. This is a concern about activism on the bench that1478has existed for a long time. It is just now on steroids.1479    So you talked briefly, and I mentioned it too, sort of Rule148023 as a more viable option for this, limiting the orders of the1481parties, the rulings of the parties before the court as a case1482in controversy. Those are ways to address this. Are there any1483other structural suggestions that you have? And I also want to1484pose this to Professor Alicea as well.1485    Professor Blackman. Sure. I think one urgent need is to1486think about automatic stays. When you have district judges1487granting universal injunctions and they don't stay their1488rulings, there is this frantic race to the court of appeals and1489to the Supreme Court. And the executive branch is not capable1490of actually changing policy on the fly, and that gives rise to1491these attempted contempt proceedings. I would think about if a1492universal injunction is granted or a nationwide class is1493granted, stay their ruling for 24 hours, 48 hours, some limited1494period to at least take an appeal to the appellate court and1495don't let the judge who just ruled against you decide whether1496an appeal should be taken. I think the automatic stay would go1497a long way to addressing these issues.1498    Chair Schmitt. Professor Alicea?1499    Professor Alicea. I think beyond Rule 23 and the1500enforcement of Rule 23, it is important to address the scope of1501injunctions not just through the non-APA route but also through1502the administrative procedure route under Section 706. So I1503think that to the extent that we are going to really address1504the problem overall, you can't just address universal1505injunctions that are done outside of the context of1506administrative action, but also through the process that the1507APA sets up for challenging agency action.1508    Chair Schmitt. Thank you. Professor Blackman, you recently1509wrote an article in May of this year where you state the1510District of Maryland's standing order, that judge that1511automatically blocked deportations upon filing a habeas1512petition without merit review, is pretty clearly designed to1513thwart the Trump administration's immigration policies. Could1514you explain that?1515    Professor Blackman. Yes, this is unusual. So the District1516Court of Maryland issued what is called a standing order, which1517is basically an order that applies in all cases. And it says,1518by virtue of filing a habeas petition, a grant of stay is1519automatically issued.1520    The Supreme Court has said there is a four-factor balancing1521act to decide whether a stay must be granted. This is1522automatic. And if you actually read this seriously, it is a1523permanent handcuff on the President's authority to deport1524people.1525    The judge actually walked it back about a week ago. They1526sort of modified it. Maybe the Judicial Conference just got1527wind of this. But I think there is still an attempt to limit1528the Executive power in ways that have not been done before.1529    Chair Schmitt. And it was issued to the government, I think1530it was writ large, right? I mean----1531    Professor Blackman. Yes.1532    Chair Schmitt [continuing]. This is very unusual.1533    Professor Blackman. Right. It wasn't notice given in each1534case. It was by virtue of posting on a website. This rule1535applies universally. There is actually a rule that says any1536ordinance you put on each ECF docket, it can't be done1537globally.1538    Chair Schmitt. And I think one of the points of this1539hearing, the Supreme Court has a case in front of it where it1540has an opportunity to rein this in. And I think the Chief1541Justice is very keen to understand the perception of the court.1542It seems to be a good opportunity, I think, probably for the1543Supreme Court to finally weigh in here. Thank you.1544    Chair Schmitt. Senator Welch.1545    Senator Welch. Just a couple of points I want to make.1546Number one, the effort to get universal injunctions has been1547pursued by litigants, including some of the attorneys general1548who serve on this Committee. I know you did as attorney1549general, sought several universal injunctions.1550    Chair Schmitt. Since you referenced it----1551    Senator Welch. Yes.1552    Chair Schmitt [continuing]. The vast censorship enterprise1553of the Biden administration that a court declared was perhaps1554the biggest offense to the First Amendment in the history of1555the country where there were named parties that were1556specifically enjoined, you mean that case? Yes.1557    Senator Welch. I do. My point here is that if there is an1558opportunity out there for a litigant, whether it is a lawyer1559trying to get the judge that he or she thinks is going to be1560the most favorable or an Attorney General trying to get the1561most relief for something that he or she believes in, they will1562do it. So it is up to us if we think that process should be1563adjusted to change it. But it is not a Republican-Democratic1564deal. I mean, it is what litigants do.1565    The second thing is, Professor Blackman, you mentioned how1566some of these universal injunctions inhibit the authority of1567the Executive, right? What is the problem with that? I mean,1568what is so great about the Executive having unlimited1569authority?1570    Professor Blackman. Well, I will take the Alien Enemies Act1571particularly. This is a statute that has been around for 2001572years. It has been enforced in various times. And historically,1573it has been a very deferential statute. The courts haven't1574scrutinized when it should be enforced, and they haven't told1575plaintiffs to turn around. So I think we are seeing not only1576aggressive use of the universal injunction but also intrusions1577upon the Executive authority.1578    Senator Welch. All right. So I get that. And let me just be1579clear. I disagree with you. And I disagree with the Executive1580invoking what I regard as a very discredited law and using it1581to deny due process. So I am on the side of pushing back1582against executive authority, so I don't see that as a big1583problem.1584    Professor Shaw, one of the things people here are talking1585about is the class action. And here is my question with it, and1586I want you to address this. I had a small-town law firm, and I1587would have people who walk in, and every once in a while, they1588had a hopeless case that we would take, and we would get them1589relief. And if I had to do that in a four-person law firm and1590certify a class action, I couldn't have taken that case.1591    So this so-called remedy of using the class action means1592that those Vermonters or those folks in Washington State or1593wherever who go into a lawyer's office to seek relief, and that1594lawyer's willing to take the case, what are the burdens on that1595law firm if they have to certify it as a class?1596    Professor Shaw. Yes. I mean, it seems to me that--let's1597take maybe the birthright citizenship example--arguments that1598challenges can be maintained against this Executive order, but1599they have to be done doing the class action--using the class1600action device, I'm not sure if those are being made in good1601faith. Rule 23 of the Federal Rules of Civil Procedure has1602relatively demanding requirements. The Supreme Court has1603ratcheted up those requirements in a series of cases in the16042010's. The plaintiffs have to be similarly situated in terms1605of their injury and the kinds of relief that they are seeking.1606    And I--you know, the Solicitor General in the Supreme Court1607a couple of weeks ago didn't disclaim the likelihood that they1608would be back before the Supreme Court saying, well, you1609shouldn't even be able to certify a class with respect to this1610Executive order. So it feels to me like a little bit of a1611``heads we win, tails you lose.'' You can try a class action,1612and we will marshal different kinds of arguments against you1613doing that.1614    But it is not as though it is very easy to satisfy the1615requirements of Rule 23. And I think that shifting from these1616injunctions to a pure Rule 23-based regime would disadvantage1617those unable to secure representation to who don't satisfy the1618requirements of class membership and would mean no relief from1619government unlawful conduct.1620    Senator Welch. Yes. You know, and that is one of the things1621that is so important, hopefully, to all of us is access to the1622courts for an everyday person in Missouri, Texas, or whatever.1623So you get some lawyers who are just willing to do it because1624it is a neighbor, it is a friend, it is a class they believe1625in. I want them to be able to act and bring that case to court1626and not have to go through the incredible expense.1627    On the question of universal injunctions, I mean, are there1628some suggestions you have or forum shopping that you have that1629would expedite or address what you perceive to be some1630legitimate problems that aren't siding with the partisan divide1631on this question?1632    Professor Shaw. Thank you for that question, Senator. I do1633think that that single-judge divisions, which allow plaintiffs1634to, with absolute certainty, ensure that they will receive a1635particular judge when they file in a particular division of a1636district, are an enormous problem, right? That forum shopping1637is not exclusive to these single-judge divisions, but it is the1638most serious kind of forum shopping.1639    And I should say, as of I think right now, none of the1640orders against the Trump administration have issued from judges1641who sit in single-judge divisions, unlike some of the orders1642issued against the Biden administration. But I do think that1643the Judicial Conference has already endorsed a proposal that1644would essentially eliminate these single-judge divisions. I1645think that is something that we should all be able to get1646behind.1647    Senator Welch. Well, you know, I would be willing to work1648with my colleagues on some of these practical questions and1649practical answers where we strip out whether we agree or1650disagree with the particular decision that has been made by the1651court. Thank you. Thank you all.1652    Chair Cruz. Professor Shaw, you said Congress had set high1653standards in Rule 23 for certifying class actions. Why would we1654have set high standards for class actions?1655    Professor Shaw. So to Rule--I don't think I said that, sir,1656just that the Rule 23 standards are relatively demanding that1657the court has ratcheted up the difficulty of satisfying them.1658    Chair Cruz. But why would we set demanding standards for1659class actions?1660    Professor Shaw. I'm not sure I'm--you know, the Rules1661Committee produces the rules, so I am not quite sure----1662    Chair Cruz. But Congress adopts them.1663    Professor Shaw. Yes. Yes. So, I mean, you tell me, sir.1664    Chair Cruz. Well, there is a reason we have high standards1665for class actions because it should be difficult to certify a1666nationwide class. And what we are seeing is single judges1667ignoring the Federal rules of civil procedure, ignoring the1668rules Congress has set out for class certification and saying,1669I am just going to issue an injunction to the whole damn1670country, and it doesn't matter if it meets even the bare1671thresholds of the Federal rules.1672    Senator Kennedy. Would any of you advise a client to defy a1673Federal court order?1674    Professor Blackman. No.1675    Senator Kennedy. None of you would? How about you,1676Professor?1677    Professor Shaw. I mean, under most circumstances, we follow1678the government, and private parties follow court orders. I1679suppose it's not--I would not rule out ever the possibility1680that a sufficiently egregious order, there should be some1681consideration of whether there is a way----1682    Senator Kennedy. So in some cases----1683    Professor Shaw [continuing]. I think it's a qualified1684answer, yes.1685    Senator Kennedy. In some cases, you would?1686    Professor Shaw. In an extremely narrow band of cases, I1687think it would be considered, yes.1688    Senator Kennedy. Okay. Do any of you think that nationwide1689or universal injunctions are not being abused?1690    Professor Shaw. I'm not sure what the--if I may, Senator,1691I'm not sure what the time horizon of the question is. I don't1692think that--there could be good-faith disagreements about the1693correctness of some of them, but I have not seen----1694    Senator Kennedy. I understand----1695    Professor Shaw [continuing]. In the last 4 months, abuse,1696no.1697    Senator Kennedy. I have read your stuff, and I have read1698your writings. I don't want to get bogged down with this, but I1699have little respect for your opinion because I have read your1700stuff. When someone is in the White House that you agree with1701and someone gets a universal injunction against him, you don't1702like universal injunctions. You called them judges acting like1703they are politicians in robes and judges looking like crass1704political actors.1705    But now that President Trump's in the White House, who you1706dislike, you think that universal injunctions taste like1707pumpkin pie. So I have to discount what you say because I think1708you act on your political beliefs, and I worry that that is1709what you are teaching your kids. So I will leave you out of1710that.1711    Do you think nationwide injunctions are being abused?1712    Professor Alicea. Certainly, Senator, I think that is----1713    Senator Kennedy. They are being abused by both sides,1714aren't they?1715    Professor Alicea. Yes, Senator.1716    Senator Kennedy. Both Republicans and Democrats are forum1717shopping, aren't they?1718    [Points at witness.]1719    Professor Blackman. Certainly.1720    Senator Kennedy. Professor, do you disagree with that?1721    Professor Blackman. I think both sides are abusing them. I1722agree.1723    Senator Kennedy. Okay. Both sides. There are no clean hands1724here.1725    Now, your suggestion is that when a Federal judge issues a1726nationwide injunction, there should be an automatic stay and an1727expedited right of appeal. Is that right?1728    Professor Blackman. Yes, sir.1729    Senator Kennedy. Do you disagree with that?1730    Professor Alicea. I haven't given enough thought to have a1731position on it, Senator.1732    [Points at witness.]1733    Senator Kennedy. I suspect, Professor, your answer will be1734it depends on who is President.1735    Professor Shaw. No, Senator.1736    Senator Kennedy. Let me ask you about this. What if we had1737a rule--I was reading an article the other day--I am not1738suggesting it, I just want your opinions--that said if a1739President, any President, issues an Executive order, let's say,1740that clearly violates settled Supreme Court precedent, that a1741Federal judge can't issue a nationwide injunction. For example,1742for example, if a President issued an order that said no one in1743America has right to counsel any longer, included but not1744limited to in a felony case, having the government pay for your1745lawyer if you can't afford it. That clearly violates settled1746Gideon v. Wainwright. In that case, a judge has no authority--1747or does have authority to issue a nationwide injunction. But in1748a case where the law is unclear, a judge should refrain from1749that. Now, obviously, we would have to trust our judges, but we1750are supposed to be able to trust them anyway. What do you think1751about that?1752    Professor Alicea. I don't agree with that, Senator, because1753I think universal injunctions transgress the limitations under1754Article III even if the underlying merits are clear.1755    Senator Kennedy. I happen to agree with you. I don't think1756there is any basis under Article III, under Supreme Court1757precedent, under the English common law for nationwide1758injunctions. I think politicians have helped judges, and many1759judges are politicians, to just make it up. And many of them1760are like Professor Shaw here. If they like the President, they1761are against nationwide injunctions. If they don't like the1762President, they are for them.1763    Professor, let me ask you this while I have you. On April176422, 2024, you said there are some members of the Supreme Court1765that are evil. Which justices were you talking about?1766    Professor Shaw. I will take it your word, Senator. I don't1767recall using that word but----1768    Senator Kennedy. All right. Here is what you said. You were1769talking about the majority opinion in Muldrow v. City of St.1770Louis. You said, ``Justice Kagan, I mean, will she be able to1771control the opinion's future distortion by her evil colleagues?1772Probably not.'' Who were you talking about?1773    Professor Shaw. Sir, I am very skeptical. There's a--if it1774was a transcription, it was probably a transcription error. I1775do not think I said evil.1776    Senator Kennedy. No, you said it. Why don't you own up to1777it? You call some members of the Supreme Court evil. Now, which1778ones do you think are evil?1779    Professor Shaw. I would have to refresh my recollection. I1780have been very critical----1781    Senator Kennedy. You are embarrassed----1782    Professor Shaw [continuing]. Of some members of the Supreme1783Court.1784    Senator Kennedy [continuing]. That you made that statement,1785aren't you?1786    Professor Shaw. I--I'm----1787    Senator Kennedy. You are an officer of the court.1788    Professor Shaw. Senator, it doesn't sound like something1789that I would say.1790    Senator Kennedy. You know what I am embarrassed at? That1791you are teaching our kids.1792    Professor Shaw. I don't refer to Supreme Court justices as1793evil----1794    Senator Kennedy. You did right here----1795    Professor Shaw [continuing]. In the classroom, sir.1796    Senator Kennedy [continuing]. On your podcast April 22,17972024----1798    Professor Shaw. Okay. Well----1799    Senator Kennedy [continuing]. Big as Dallas. And you are an1800officer of the court, and you are here advising us to be1801respectful of Federal judges. And you say they are evil members1802of the U.S. Supreme Court. Gag me with a spoon. You are part1803the problem in all of this.1804    Chair Cruz. Thank you, Senator Kennedy.1805    Senator Durbin.1806    Senator Durbin. So I am going to give the panel members an1807opportunity to respond to a question posed by Justice Sotomayor1808during the oral arguments on the birthright citizenship bill.1809And she said, imagine a new--I am paraphrasing. Imagine a new1810President takes office and decides, because of the epidemic of1811gun violence in our country, to issue an Executive order1812announcing that he will deploy the military to seize the guns1813of every gun owner across the country. That Executive order1814would be swiftly challenged in a Federal district court or more1815likely in several district courts. Should a district court be1816allowed to issue a nationwide injunction to at least1817temporarily prevent the enforcement of that Executive order? I1818would like each of you to respond. Professor Blackman?1819    Professor Blackman. I actually addressed that point in a1820blog post. We actually have history of someone in this country1821disarming everyone. His name was General Gage, and that was not1822fought with Rule 23.1823    Senator Durbin. So your answer?1824    Professor Blackman. I don't--if the President can't take1825everyone's gun in this country, I don't think the remedy would1826be in the courts.1827    Senator Durbin. Professor Shaw?1828    Professor Shaw. Yes. I mean, I think that whatever the1829constitutional right is, whether, you know, it's a Second1830Amendment, a First Amendment, a due process right, if a1831President tries to do something that is in clear violation of1832settled law, whether we like the law or not, that--an1833injunction is an appropriate remedy.1834    Senator Durbin. Professor Alicea?1835    Professor Alicea. No, Senator. I have written in support of1836the Second Amendment in many fora, but I don't think that a1837judge could issue a universal injunction under those1838circumstances. Of course, the challengers could seek1839certification under Rule 23 and then try to pursue class-wide1840relief.1841    Senator Durbin. So do you think it is reasonable to expect1842every single person affected by an Executive order like the one1843I described to seek relief through Rule 23 or to file their own1844lawsuit to seek relief?1845    Professor Alicea. I don't think that would be necessary,1846Senator. If you had one person who sought class certification1847successfully, that would be sufficient. But even if you had1848failures to class certification, once you get to the Supreme1849Court and the Supreme Court issues a binding decision, that1850precedent would bind all the lower courts. So it's not a1851question of whether you get to a uniform rule. It's just a1852question of when you get to a uniform rule and by what route.1853But those limitations on the route matter under Article III.1854    Senator Durbin. There has been a lot said during the course1855of this hearing about the possibility or likelihood that judges1856are being selected for this process to review the decisions of1857the Trump administration on a political basis. Professor Shaw,1858I noted--I am not sure you read this into the record, but you1859said the--according to a recent analysis by Professor Bonica,1860the Trump administration has lost 80.4 percent of the time1861before district judges appointed by Democratic Presidents, 80.41862Democrats, 72.2 before district judges appointed by Republican1863Presidents. Who is Professor Bonica?1864    Professor Shaw. He is a political scientist at Stanford.1865And yes, so that is my written statement. And I think it does1866suggest that this is--it cannot be reasonably just attributed1867to policy antipathy. This is about a pretty broad consensus1868about the lawlessness of many of the administration's actions.1869And I think both Democratic and Republican appointees have seen1870that.1871    Senator Durbin. That is my impression as well. This is not1872a stacked deck, a statistical impossibility. It is a fact. This1873President has issued more orders with more controversy than any1874President in recent memory.1875    I have only been to Amarillo once when I was a younger1876person. I am sure it is a lovely city, but it turns out that1877the Amarillo division of the Northern District of Texas has1878gotten quite a bit of publicity. It turns out that people been1879filing lawsuits there because there is only one judge who sits1880in that division, Judge Matthew Kacsmaryk, who I remember1881appearing before the Committee. Litigants knew Judge Kacsmaryk1882would be assigned to the cases and viewed him as favorable to1883their arguments.1884    So the argument that is being made that venues shopping,1885forum shopping is on one side of the table, it is clearly on1886both sides of the table. And Judge Kacsmaryk is pretty well1887known for the way he rules. Professor Shaw, do you have any1888observation on that?1889    Professor Shaw. Yes. I mean, as I said in response to1890Senator Welch, I actually think that those single-judge1891divisions, like the one in Amarillo, Texas, where Judge1892Kacsmaryk sits, are a genuine problem. But none of the1893injunctions against the Trump administration have issued from1894judges who sit in those single member districts, so I am not1895even sure it's fair to say that that's a problem we are seeing1896now and we saw previously. We actually aren't seeing it now,1897but I do think that, regardless of who the President is, these1898single-judge divisions are a problem that Congress would be1899well served to address.1900    Senator Durbin. Thank you very much. Thank you, Chairman.1901    Chair Cruz. Thank you. Senator Hawley.1902    Senator Hawley. Thank you very much, Mr. Chairman--Mr.1903Chairman. It is great to have this hearing. Thanks for calling1904it. Thanks to all of our witnesses for being here. Professor1905Shaw, nice to see you again.1906    Let me just start with you, if I could, Professor Shaw. You1907talked about the fact that there have been lots of rulings1908against the Trump administration. That is absolutely1909statistically true. I disagree with almost all of them. In1910fact, I think all of them. But the issue of this hearing really1911isn't the rulings, is it? It is the remedies. Would you agree?1912And those are distinct things. You may think that the ruling is1913quite correct, but that is actually not what we are talking1914about here today. We could have a hearing on that. Maybe we1915should. But we are talking today about the remedy.1916    And the question is, is a remedy that binds parties who are1917not before the court, is that an appropriate thing? I mean,1918aren't you concerned about judges binding nonparties in their1919remedies? You may love the ruling, but even if you do, don't1920you think it is a little bit anomalous for courts to be going1921out there and binding parties who are not before them? I mean,1922is that something we want to encourage?1923    Professor Shaw. Senator, I think that judges have been1924issuing rulings that impact nonparties since Marbury v.1925Madison, right, so----1926    Senator Hawley. So you are not concerned about it?1927    Professor Shaw. I'm not. I absolutely think that they can1928be abused, and they have been----1929    Senator Hawley. Well, now, wait a minute.1930    Professor Shaw [continuing]. Abused.1931    Senator Hawley. Wait a minute. Wait a minute. Wait a1932minute. You were very concerned about it just a couple of years1933ago. You said in response to a nationwide injunction on the1934Biden FDA's mifepristone rules, ``This injunction is a travesty1935for principles of democracy, notions of judicial impartiality,1936and the rule of law.''1937    Professor Shaw. I think I've been consistent today. That1938was issued by Judge Kacsmaryk in a single-judge division.1939    Senator Hawley. Wait a minute. Wait a minute.1940    Professor Shaw. They're a problem. Those are a problem.1941    Senator Hawley. You are taking issue with him personally--1942wait.1943    Professor Shaw. No, no, no.1944    Senator Hawley. So your testimony is if it is issued by1945Judge Kacsmaryk, it is bad?1946    Professor Shaw. No, sir.1947    Senator Hawley. It is personal?1948    Professor Shaw. That is not my testimony. I said----1949    Senator Hawley. So is the problem with the injunction? You1950were criticizing the universal injunction here.1951    Professor Shaw. Issued by a judge in a single-judge1952division. I've been very clear today----1953    Senator Hawley. Ah, so----1954    Professor Shaw [continuing]. That those are a problem.1955    Senator Hawley [continuing]. Issued by a Republican judge1956in a Republican division, then it is bad.1957    Professor Shaw. No, Senator.1958    Senator Hawley. Otherwise, it is fine.1959    Professor Shaw. No, Senator. I think that single-judge1960divisions are a problem.1961    Senator Hawley. What is the principle difference? I am1962looking for a principle. I understand you hate the President. I1963understand you love all of these rulings against him. You and I1964both know that is not a principle. You are a lawyer. What is1965the principle that divides when issuing a nationwide injunction1966is okay and when it is not? When the Biden administration was1967subject to nationwide injunctions, you said that they were1968travesties for the principle of democracy. You didn't say the1969referral to Judge Kacsmaryk was a travesty. You said his1970injunction was a travesty for principles of democracy.1971    Professor Shaw. So----1972    Senator Hawley. In other words, the translation is you just1973didn't like the outcome. Is that right?1974    Professor Shaw. No, Senator. Look, we're talking about--I1975don't think Article III precludes this form of relief. So we1976are talking about prudential considerations.1977    Senator Hawley. Prudential meaning political?1978    Professor Shaw. No.1979    Senator Hawley. Then give me----1980    Professor Shaw. No.1981    Senator Hawley. So far, I have yet to hear it. You have1982been questioned by multiple Senators. I have yet to hear a1983principle other than the fact when you like the ruling, you1984think it is great to apply it nationally, including nonparties.1985When you don't like the ruling, it is a travesty for the1986principles of democracy, notions of judicial impartiality, and1987the rule of law.1988    Professor Shaw. Look, Senator, I'll say I think I am self-1989aware enough to know that my view of the underlying legal1990question, I am sure, colors my perception of the remedy, and I1991think that we should all acknowledge that. And yet I do think1992that there----1993    Senator Hawley. Then why shouldn't we stop nationwide1994injunctions for everybody?1995    Professor Shaw. I think there is----1996    Senator Hawley. That is what we are talking about today.1997    Professor Shaw. Because I am not willing to leave without1998relief nonparties who are injured----1999    Senator Hawley. No, you are not willing to leave without2000the ability to bind President Trump.2001    Professor Shaw. No, I think that----2002    Senator Hawley. Right? I mean----2003    Professor Shaw. I believe----2004    Senator Hawley [continuing]. When it is Biden, it is okay.2005    Professor Shaw. No.2006    Senator Hawley. When it is Biden, oh, it is a travesty. But2007when it is Trump in office, it is a no-holds-barred, whatever2008it takes, right?2009    Professor Shaw. I believe in a powerful----2010    Senator Hawley. It is just like that book that----2011    Professor Shaw. No.2012    Senator Hawley. What was it that President Biden's staff2013said? We have got to do undemocratic, unconstitutional things2014to save democracy.2015    Professor Shaw. I believe----2016    Senator Hawley. Why isn't this the same thing?2017    Professor Shaw. I believe in a powerful President. I do2018believe in Presidential power. But power and constraint are not2019at fundamental odds----2020    Senator Hawley. What is the principle? What is the2021principle, the legal principle. You have referenced prudence.2022You have referenced the judges you don't like. What is the2023principle of when an injunction biding nonparties, which was2024never done in this country before the 1960's--and let's see the2025chart--the Trump chart, which was done really only once Trump2026came into office for the first time. You don't think this is a2027little bit anomalous? You don't think that is a little bit2028strange? Do you----2029    [Poster is displayed.]2030    Professor Shaw. A very plausible explanation----2031    Senator Hawley [continuing]. Think this is good for the2032rule of law?2033    Professor Shaw [continuing]. Senator, you have to consider2034is that he is engaged in much more lawless activity than other2035Presidents, right? That----2036    Senator Hawley. You don't think----2037    Professor Shaw. You must--can see that is----2038    Senator Hawley. This was never used----2039    Professor Shaw [continuing]. A possibility.2040    Senator Hawley [continuing]. Before the 1960's, and2041suddenly Democrat judges decide, we love the----2042    Professor Shaw. No.2043    Senator Hawley [continuing]. Nationwide injunction. And2044then when Biden comes to office, no, no----2045    Professor Shaw. It's Republican appointees as well,2046Senator. And the 1960's is where some scholars begin--sort of2047locate the beginning of this----2048    Senator Hawley. Can you identify one----2049    Professor Shaw [continuing]. But others----2050    Senator Hawley [continuing]. Before then?2051    Professor Shaw. Mila Sohoni, who's another scholar of2052universal injunctions, suggests 1913 is actually the first.2053    Senator Hawley. Oh, okay. So----2054    Professor Shaw. There were others in the 1920's.2055    Senator Hawley. The republic endured for 150 years before--2056--2057    Professor Shaw. So----2058    Senator Hawley [continuing]. There was a nationwide2059injunction.2060    Professor Shaw. Well, the Federal Government was doing a2061lot less until 100 years ago, so I'm--you know, there's many2062things that have changed in the last 100 or the last 50 years.2063This is----2064    Senator Hawley. So long as it is a Democrat President2065office, then we should have no nationwide injunctions. If it is2066a Republican President, then this is absolutely fine,2067warranted, and called for.2068    Professor Shaw. That is not----2069    Senator Hawley. How can our system of law survive on those2070principles, Professor?2071    Professor Shaw. I think a system in which there are----2072    Senator Hawley. Is that blind?2073    Professor Shaw [continuing]. No meaningful constraints on2074the President is a very dangerous system of law----2075    Senator Hawley. That is not what you thought----2076    Professor Shaw [continuing]. And I'm----2077    Senator Hawley [continuing]. When Joe Biden was President.2078    Professor Shaw. I think every President----2079    Senator Hawley. You said----2080    Professor Shaw [continuing]. Needs constrained and must be.2081    Senator Hawley. That is not what you said.2082    Professor Shaw. Absolutely.2083    Senator Hawley. You said it was a travesty for the2084principles of democracy, notions of judicial impartiality, and2085the rule of law. You also said----2086    Professor Shaw. The Supreme Court, Senator, agreed----2087    Senator Hawley [continuing]. When Joe Biden was President--2088wait a minute, wait a minute.2089    Professor Shaw [continuing]. 9-0 with me on that case----2090    Senator Hawley. You also said----2091    Professor Shaw [continuing]. To be clear.2092    Senator Hawley [continuing]. When Joe Biden was President,2093you said the idea that anyone would forum shop to get a judge2094who would issue a nationwide injunction was just ``judges2095looking like politicians in robes.'' Again, it threatened the2096underlying legal system. People were just trying to get the2097result they wanted. It was a travesty for the rule of law. But2098you are fine with all of that if it is getting the result that2099you want.2100    Professor Shaw. Sir, the Supreme Court agreed unanimously2101with me in that case, right? There was no standing. The case2102should never have been allowed to proceed.2103    Senator Hawley. Wait, wait, wait. What case?2104    Professor Shaw. And the combination of parties without2105standing and the single----2106    Senator Hawley. No, no, no, no, no, no, no.2107    Professor Shaw [continuing]. Judge division----2108    Senator Hawley. No, no, they did not. They did not issue a2109ruling on the nationwide injunction. You----2110    Professor Shaw. No.2111    Senator Hawley [continuing]. Criticized the injunction2112nationwide. Listen----2113    Professor Shaw. Issued in a case where----2114    Senator Hawley [continuing]. We could go round and round on2115this.2116    Professor Shaw [continuing]. No one had standing.2117    Senator Hawley. Here is the thing. We have now gone 62118minutes, and Senator Kennedy had you for 6 or 7. You couldn't2119identify a single principled basis.2120    We all know the truth here, which is it is not just you. It2121is most of my colleagues over here on this side of the aisle,2122who I respect a great deal, and they were raising very2123principled objections to the nationwide injunction just 62124months ago, maybe 9 now. And you are probably right.2125    My point is, is that all that has changed in 9 months is2126the occupant of 1600 Pennsylvania Avenue. And I realize that my2127colleagues on this side of the aisle very much dislike that2128individual, and I realize that you think that the rulings that2129he has lost are fundamentally sound. We might grant all that. I2130disagree with all of that, but we can put that to one side.2131    The question we are talking about here is, should judges,2132single judges, district court judges, be able to bind2133nonparties who are not in front of them? And you used to say2134no. Now, you say yes. Let's be consistent. I would just suggest2135to you our system of government cannot survive if it is going2136to be politics all the way down.2137    Professor Shaw. Can----2138    Senator Hawley. Thank you, Mr. Chairman.2139    Professor Shaw. Can I briefly respond?2140    Senator Hawley. Sure.2141    Professor Shaw. I mean, you invoked democracy a couple of2142times there, Senator. Judges are part----2143    Senator Hawley. I quoted you.2144    Professor Shaw. Judges are part----2145    Senator Hawley. I quoted you for that.2146    Professor Shaw [continuing]. Of our system of democracy.2147Democracy is just--is not as simple as majority rule. Judges2148have always served something of a----2149    Senator Hawley. You would have it be as simple----2150    Professor Shaw [continuing]. Counter majoritarian function.2151    Senator Hawley [continuing]. As majority rule. When you get2152the majority you like, you are for the nationwide injunction.2153When you don't, you are not.2154    Chair Schmitt. Senator Blumenthal.2155    Senator Blumenthal. Thank you, Mr. Chairman.2156    I am going to give you the opportunity that I often found2157absolutely precious when I was arguing before a panel of judges2158and couldn't get my answer out. I am going to give you some of2159my time to just say what you were going to say to Senator2160Hawley.2161    Professor Shaw. Thank you, Senator.2162    Senator Blumenthal. I can't interrupt you.2163    Professor Shaw. Okay. Thank you. Thank you, Senator.2164    Senator Kennedy. I will take some of your time.2165    Professor Shaw. You know, I started to say this.2166    Senator Blumenthal. By the way, we are good friends, so it2167is not personal.2168    Professor Shaw. Well, maybe I will just finish what I2169started saying at the end, which is in a number of the2170questions today, there has been this embedded premise that2171there is something democratically troubling about judges2172issuing these nationwide injunctions constraining the2173democratically elected President. And I guess I would just say2174in response that, you know, we have a constitutional democracy.2175So we do--the people are sovereign and that's--you know, that2176sovereignty flows from the people. And we do choose our elected2177representatives, but obviously, we choose our Representatives2178in Congress, passes--Congress passes statutes, the President2179signs them. And many of the rulings we are talking about were2180predicated on executive branch violations of statutes that2181Congress passed. So the rulings in many ways are about2182protecting and reinforcing democracy.2183    And then finally, I'll say that, you know, courts are part2184of our democracy, right? They have served this rights-2185protecting and democracy-facilitating function from basically2186the beginning, whatever the original design of the constitution2187was. And it is not undemocratic or anomalous for courts to2188sometimes strike down acts of the President or of Congress when2189they conflict with the fundamental law, which is the2190Constitution, which in our system, courts have long had the2191primary role in enforcing.2192    Senator Blumenthal. And in fact, just as a footnote to this2193conversation, Congress has an obligation to follow the2194Constitution too, correct?2195    Professor Shaw. Absolutely. The President does, Congress2196does, every official State and Federal takes an oath to uphold2197the Constitution, but where that oath is--does not appear to be2198fully honored by one or more other actors in government,2199sometimes courts do need to step into the breach. I think that2200is what we have been seeing.2201    Senator Blumenthal. And I can't remember exactly what that2202chart said, but so far in the lawsuits have been--that have2203been brought, the administration or the President has lost, I2204would say a vast majority of times. Is that correct?2205    Professor Shaw. The vast majority, yes, Senator.2206    Senator Blumenthal. And I want to ask a somewhat open-ended2207question because I have to confess, as attorney general of the2208State of Connecticut, I probably succeeded--I can't name in2209which cases--obtaining a nationwide injunction. Then-attorney2210general Schmitt sought more than----2211    Chair Schmitt. You started it. Is that your admission?2212    [Laughter.]2213    Senator Blumenthal. Sought more than a dozen nationwide2214injunctions against the Biden administration. Then-attorney2215general Moody also sought numerous nationwide injunctions. This2216is a tactic, and it is a well-founded one that attorneys2217general, litigants, and others have used again and again and2218again. And it shouldn't be a partisan issue. Nationwide2219injunctions shouldn't be a partisan issue. And when I say they2220did it, I am not being accusatory. I confess I did it. And I2221don't know about then-attorney general Whitehouse. He can speak2222for himself. But it should not be a partisan issue, should it?2223    Professor Shaw. I agree that it shouldn't be and that--but2224of course, yes, it has been. I mean, I think that despite the2225somewhat heated exchange I was just having with Senator Hawley,2226I do think that we don't want judges to be sort of driving the2227train of policymaking. And there are absolutely--there may be2228points and there may be contexts in which it does feel as2229though some fundamental change to the way judges consider2230nationwide injunctions, how much--there is some critique that2231the merits have become the entire analysis and that some--you2232know, there should be some prescriptions that are different2233about the kinds of harms that should be--the way harm should be2234evaluated or assessed. So I do think there are--again, back to2235the sort of prudential point, there are absolutely reforms that2236I think that there could be some----2237    Senator Blumenthal. Just to take--and I apologize----2238    Professor Shaw. Yes, no, please.2239    Senator Blumenthal [continuing]. For interrupting, but I am2240running out of time.2241    Professor Shaw. Yes, sorry.2242    Senator Blumenthal. To take Senator Hawley's point about2243looking for a principle, a jurisprudential lodestar here, maybe2244we do need some refinement on a bipartisan basis to provide2245some guidelines to district court judges, some of whom come to2246work on their first day----2247    Professor Shaw. Right.2248    Senator Blumenthal [continuing]. And are presented with2249litigation that determines whether or not kids get healthcare2250or whatever in parts of the country they have never visited in2251towns they don't even know how to pronounce.2252    Professor Shaw. Right. So--and whether that comes from a2253rule change, Supreme Court guidance, something legislative, I2254am not sure, but I think there could well be bipartisan2255consensus around clearer standards that guide judges asked to2256consider requests for nationwide injunctions.2257    Senator Blumenthal. And that would probably increase the2258credibility of what courts do if they could point to standards2259that were not just personal preferences or whims or, you know,2260perhaps subconscious political leanings.2261    Professor Shaw. I agree with that, Senator.2262    Senator Blumenthal. Thank you. Thanks, Mr. Chairman.2263    Chair Cruz. Thank you. Senator Blackburn.2264    Senator Blackburn. Thank you, Mr. Chairman.2265    Professor, I do want to come to you, and I want to return2266to the conversation about calling the Supreme Court justices2267evil. You host a podcast, correct?2268    Professor Shaw. Yes, Senator.2269    Senator Blackburn. And that is called Strict Scrutiny,2270correct?2271    Professor Shaw. Yes, Senator.2272    Senator Blackburn. Okay. You made those comments on your2273podcast. And Mr. Chairman, I would like to submit the recording2274of that podcast for the record.2275    Chair Cruz. Without objection.2276    [The information appears as a submission for the record.]2277    Senator Blackburn. Thank you, Mr. Chairman.2278    In that podcast, you referenced, as Senator Kennedy said,2279to Justice Kagan an opinion, and you referred to the2280conservative justices as, and I am quoting you, ``her evil2281colleagues.'' That is something you said on Strict Scrutiny in2282your podcast.2283    And you, in that same podcast, you made a reference to2284Justice Alito. Do you recall that?2285    Professor Shaw. I don't recall that. And we certainly do2286reference Justice Alito, so I believe that, but I don't2287recall----2288    Senator Blackburn. Well----2289    Professor Shaw [continuing]. Specifically what.2290    Senator Blackburn [continuing]. Your comment there was that2291he was an ``abject misogynist.'' So since this is your podcast2292that you hosted and this was your opinion on that podcast,2293would you like to provide explanation about why you think2294conservative justices are evil and why you would think Justice2295Alito was a misogynist? Do you care to explain yourself?2296    Professor Shaw. I would have to look at the transcript,2297Senator. I think that the dismissive approach to sex equality2298arguments in the Dobbs case was deeply concerning. One2299paragraph in the opinion suggests that there is no sex equality2300problem with abortion restrictions or prohibitions. I think2301that is deeply wrong. And in the more colloquial sort of mode2302of a podcast conversation, that is probably what I intended to2303convey, that he discounted very serious sex equality concerns.2304    Senator Blackburn. But you were angry. You were angry, and2305you let your emotions get the best of you is basically what you2306are saying.2307    Professor Shaw. I don't think I'm saying that, Senator. I2308was having a conversation, and I am sure I was criticizing2309Justice Alito. We frequently do on my podcast.2310    Senator Blackburn. Okay. Would you call that lack of2311respect?2312    Professor Shaw. As--in the context of a podcast, I--we2313frequently--I will stipulate that we frequently demonstrate a2314lack of respect for writings of the Supreme Court justices,2315yes.2316    Senator Blackburn. Well, that is good to hear that from2317you, that you have that admission of guilt, so thank you for2318that.2319    I have got a question for the entire panel. There was2320discussion about Section 1507 and protesting outside of2321justices' residence. And I have got a bill, the Protecting Our2322Supreme Court Justices Act, and it would deter intimidation of2323Supreme Court justices. And in the exchange Senator Cruz had2324earlier, he referenced that purposeful intimidation.2325    This would change--it would increase the maximum term of2326imprisonment for violation of Section 1507 from 1 year to 52327years, and increasing the maximum jail time for a protester2328under 1507 is, I think, an effective way to deter this2329intimidation of our justices. So I would like to hear from each2330of you on this.2331    Professor Blackman, I am going to come to you first, and2332then just a very quick, short answer from each of you.2333    Professor Blackman. Sure. I think it's a good idea. I think2334it should be enforced vigorously as well. We mentioned Judge2335Kacsmaryk before. He has had several death threats against him2336that resulted in plea bargains, so I think there's a serious2337problem that needs to be addressed with enforcement.2338    Senator Blackburn. Okay. Professor Shaw?2339    Professor Shaw. You know, I think that any law that also2340touches protected First Amendment conduct would need to be2341scrutinized carefully so I would need to take a look. I'm not2342prepared to take a position here.2343    Senator Blackburn. So you think violence outside of a2344justice's----2345    Professor Shaw. No, no, this is about protest outside of--2346--2347    Senator Blackburn [continuing]. Intimidation.2348    Professor Shaw. Okay. So, violence, absolutely. I mean, if2349we're talking about increasing penalties for violence, I would2350absolutely support that----2351    Senator Blackburn. Okay.2352    Professor Shaw [continuing]. Yes.2353    Senator Blackburn. Great. Professor?2354    Professor Alicea. I certainly think we need to carefully2355scrutinize the level of violence and the threats against2356Supreme Court justices and other judges, as we saw when there2357was a threat against Justice Kavanaugh's life, right, an2358attempted threat against him and his family, so it underscores2359the seriousness of the issue, and I think it's important for2360Congress to take a look at this.2361    Senator Blackburn. Thank you. Thank you, Mr. Chairman.2362    Chair Cruz. Thank you. Senator Hirono.2363    Senator Hirono. Thank you, Mr. Chairman. I kept hearing one2364of my colleagues accusing you, Professor Shaw, of disliking2365nationwide injunctions only when it is applied to Democratic2366Presidents. He tried so many times. That is not what you said.2367That is certainly not what I heard. What I heard you say was,2368in those instances where there is a single judge in a district,2369that can lead to forum shopping, judge shopping, which is2370exactly what happened in Amarillo, Texas. And you said that is2371something that Congress could address. I think that is a fair2372depiction of what you testified to. Is that correct?2373    Professor Shaw. Thank you, Senator. Yes, that was in my2374written testimony, and I think that I did----2375    Senator Hirono. Well----2376    Professor Shaw [continuing]. Confirm it today.2377    Senator Hirono [continuing]. So I had introduced a bill to2378Stop Judge Shopping Act, which would require suits seeking2379nationwide relief against the enforcement of Federal law to be2380filed in the D.C. District Court. And I explained at the time2381that I introduced the bill that this court, ``hears the large2382majority of cases involving challenges to Federal agency2383action, and its judges are experts at deciding these cases2384impartially.'' That is one of the ways that we can address the2385issue of forum or judge shopping, which you did address once2386again today, correct?2387    Professor Shaw. Yes, Senator.2388    Senator Hirono. Yes, I wish we could take that bill up.2389    So, you know, this attempt of my colleagues to continually2390attack the Democrats as somehow not wanting judges who decide2391cases based on objective facts, application of the law, as2392opposed to having some kind of ideological ax to grind is2393really more something that they have a problem with apparently2394than anything that we Democrats stand for.2395    Once again, Professor Shaw, there was a suggestion today2396that case assignments in D.C. is happening in a way that is2397statistically impossible. And I think this only serves to point2398out that maybe the person who made this allegation doesn't have2399enough awareness of statistics or hasn't read the rules in the2400way cases are assigned in D.C. Do you have any response to the2401allegation that someone is stacking the decks against the Trump2402administration in this court, the D.C. District Court?2403    Professor Shaw. Right, Senator. So I've heard both that2404critique that Judge Boasberg is getting a disproportionate2405share of the cases and also the kind of opposite critique that2406the motions panels in the D.C. Circuit have been more favorable2407to the Trump administration than random chance would produce.2408You know, statistically unlikely events do sometimes occur, and2409I think it very unlikely that there is anything untoward2410resulting in the assignments either of the district court or2411the court of appeals level here in D.C.2412    Senator Hirono. I have to thank you for pointing out how2413many cases. Yes, there have been over 200 cases filed to stop2414this President from, in my view, abusing his power and engaging2415in illegal acts. And frankly--and I think Mr. Blackman also2416suggested this, as did you, Ms. Shaw, that if we don't like2417this President to be sued, then we in Congress should enact2418laws that allows him to do whatever the hell he wants.2419    So why don't we let him ignore the appropriations of this2420Congress? Why don't we let him stop certain grants from being2421issued? Why don't we let him go after Harvard and any other2422school that he doesn't like? Why don't we let him go after law2423firms that take positions that he doesn't like? Why don't we2424let him do that if we don't want him to get sued? I think that2425is a rhetorical question, but certainly we could do that.2426    Thank you, Mr. Chairman.2427    Chair Cruz. Thank you. Senator Schiff.2428    Senator Schiff. Thank you, Mr. Chairman.2429    Ms. Shaw, I wanted to ask you about some of the threats we2430are seeing on the judiciary, but let me preface it by quoting2431the President, who has called Federal judges who rule against2432him communists. He has called them lunatics. He has called them2433monsters. He has said that they hate the United States. Of2434course, he called for the impeachment of Judge Boasberg, said2435the court system is radicalized and incompetent. His advisor,2436Stephen Miller, has threatened to suspend the writ of habeas2437corpus if judges essentially don't fall in line. And as a2438result, we are seeing judges' lives threatened and their family2439members' lives threatened.2440    Let me start with a threshold question in terms of a2441President making these personal attacks on judges for ruling2442against him or against the policies of the administration. Have2443we any experience in our history with this? I mean, there have2444been Presidents, of course, who have been deeply disappointed2445in judges they have appointed. And of course, many of these2446judges ruling against Donald Trump are people appointed by2447Donald Trump. But have we ever seen a President make these kind2448of sustained and personal attacks on members of the judiciary?2449    Professor Shaw. Senator, look, I would say that, obviously,2450tension between--sometimes very heated tension between elected2451officials and judges, Presidents and judges who rule against2452them is nothing new. But I agree with you that there is2453something different about the tenor of the rhetoric that we are2454hearing today. And I think that some of the specific2455suggestions--and maybe I'll offer a couple of examples.2456    One, I do think that including family members of judges in2457the attacks on judges' rulings is something that, to my2458knowledge, we have not previously seen members of public office2459engage in. The proposals to impeach, right? So there's been2460rhetoric, but also actual resolutions introduced in the House2461to impeach Federal judges for the substance of their rulings is2462also something that I don't think we've seen. We've obviously2463impeached Federal judges before. That's a constitutional remedy2464for very serious misconduct, bribery, corruption. Obviously, if2465the judges engage in treason, bribery, and other high crimes2466and misdemeanors, impeachment is the remedy. But we've never2467seriously entertained the possibility of impeaching judges for2468the substance of their rulings, and so I do think that those2469threats represent sort of a new escalation that is deeply2470concerning.2471    Senator Schiff. Well, I certainly agree. I tried one of2472those judicial impeachment cases of a judge named Porteus, and2473it was for bribery and other like serious offenses, certainly2474not for upholding the law or the Constitution or having a2475different view of the law or Constitution than a President.2476    In terms of the family members, it is not just the2477President's criticism, but at least while he was serving as a2478special employee, Elon Musk was pushing out these threats2479against members of Judge Boasberg's family, I think tweeting2480out or retweeting content identifying who the children are or2481where they work. And that is just amplifying the danger to2482these family members.2483    Tell us a little bit about this phenomenon now of people2484sending pizzas to judges and the implicit threat in that.2485    Professor Shaw. Well, I mean, I think it's--this is also2486something that I don't think we've seen before, right? There is2487clearly some kind of coordinated effort to seek to intimidate2488Federal judges and their families by sending pizzas,2489communicating the message that their residence, their addresses2490are known. And some of the pizzas bear the name of the murdered2491son of district judge Esther Salas from New Jersey. And the2492message there, I think, is a very clear one of very serious2493threat. And I think judges are taking that threat--and the2494marshals are as well from the reporting that we've seen--very2495seriously.2496    Senator Schiff. And last question, if you could help,2497Professor, put this in a broader context for us because this2498attack on judges and the judiciary isn't happening in2499isolation. We've seen the President now turn on Leonard Leo2500because these ultraconservative Federalist Society-approved2501judges are not proving right wing enough for the President. But2502this comes in the context of the administration also going2503after law firms. It seems very much a part of a concerted2504effort to attack the rule of law and using the law to defend2505people's rights. Tell us a little bit about the broader2506context.2507    Professor Shaw. I do think that attacks on judges and2508attacks on law firms are of a piece. They seem designed to seek2509to neutralize sources of countervailing authority and2510opposition to this administration. And if law firms can't take2511on unpopular causes because they are scared to run afoul of the2512President, and if judges are scared to rule against the2513President, then we really have lost any meaningful check on a2514President.2515    And as I said in my opening remarks, I think if the2516Constitution is committed to a single principle, it is limits2517on power, right, no absolute power. And I worry that we are on2518a path toward few, if any, meaningful limits on the President.2519    Senator Schiff. Thank you for your testimony today and for2520speaking truth to power.2521    Professor Shaw. Thank you.2522    Chair Cruz. Thank you, Senator Schiff.2523    I will also note that when it comes to rhetoric against2524judges, that it was Democratic leader Chuck Schumer who stood2525on the steps of the Supreme Court and threatened the Justices2526by name. And one of many left-wing commentators who has2527amplified that message is a fellow named Ian Millhiser, who2528when the leak of the Dobbs opinion happened, he tweeted out,2529``The draft Roe opinion appears to be as bad as expected, but I2530am glad it leaked because this leak will foster anger and2531distrust within the irredeemable institution that is the2532Supreme Court of the United States.''2533    And I guess he decided that rhetoric was not overheated2534enough because then he tweeted, ``Seriously, shout out to2535whoever the hero was within the Supreme Court who said, F2536it''--although he did not abbreviate that--``let's burn this2537place down. That is the angry, unhinged language from the left2538that has been directed at the court when they dislike the2539decisions.2540    I want to thank each of the witnesses for joining us today.2541I want to thank Senator Schmitt for co-chairing this joint2542Subcommittee hearing. Written questions for the record can be2543submitted by Senators up till June 10 at 5 p.m., and the2544witnesses are asked to respond to any written questions for the2545record by 5 p.m. on June 17.2546    And with that, this hearing is adjourned.2547    [Whereupon, at 4:40 p.m., the hearing was adjourned.]2548    [Additional material submitted for the record follows.]25492550    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]25512552                            A P P E N D I X25532554The following submissions are available at:25552556  https://www.govinfo.gov/content/pkg/CHRG-119shrg61716/pdf/CHRG-2557    119shrg2558    61716-add1.pdf25592560Submitted by Chair Cruz:25612562 Poster 1.........................................................     225632564 Poster 2.........................................................     325652566Submitted by Senator Blackburn:25672568 Transcript from Strict Scrutiny Podcast, audio transcript........     425692570Submitted by Senator Whitehouse:25712572 Citizens for Responsibility and Ethics in Washington (CREW),2573    statement.....................................................     525742575                                 [all]