Attorney General Jeff Sessions joined me this morning:
HH: I’m pleased to welcome back the United States Attorney General, Jeff Sessions. General Sessions, welcome back to the Hugh Hewitt Show, great to have you as always.
JS: Good morning, Hugh.
HH: On Saturday, you gave a speech at the Federalist Society’s national student symposium in D.C., which caught my attention. I’ve read through it. It’s about nationwide injunctions. Now this is a little obscure for my audience. I want to explain to them it’s been, it’s unprecedented what’s going on in the United States courts. And you laid out the stats, so why don’t you explain to people how Donald Trump has been blocked by one district court more in one year than all of the previous presidents in American history combined.
JS: It is a remarkable thing. For example, absent three different interventions by the U.S. Supreme Court, we would be in a horrible, horrible position, even worse than we are today. But you bring up a case. Somebody sues us in the 9th Circuit, like on DACA. Hugh, you remember President Obama said he didn’t have the power to do DACA. Congress considered the DACA-type legislation and rejected it. Then Homeland Security under Obama issued the order anyway to do what Congress had rejected. And our new leader withdrew that order and just put it back to what the normal law was. Well, they sued us and said you can’t even withdraw what was illegal ever to implement. And they got a judge to bar us from withdrawing it, and we’ve got two judges now, at least, where the San Francisco judge, amazingly, said that no, you could withdraw this unlawful DACA order, whereas a Maryland judge says no, we can’t withdraw it. Which order holds, the one that barred us from doing it?
HH: Well, you have 600, 600 district judges. And if each one of them can issue national injunctions that bind the president as opposed to simply dispose of the case before them, we have 600 chief executive officers in the United States.
JS: That is exactly right. And it takes so long. If you get a circuit like the 9th Circuit that’s so activist, then you’ve got to go to the Circuit Court of Appeals, and only then to the Supreme Court. The United States government is stopped from carrying out its policies for as much as 18 months.
HH: Now in your speech, you said, “The Supreme Court has not yet issued a definitive ruling on the merits of nationwide injunction. So far when the Court has had relevant cases before them, it has resolved them on other grounds. But we are hopeful that the Supreme Court will soon send a clear message to the lower courts that injunctions ought to be limited to the parties of the case. We believe it is now time for the Court to act on this issue. If the Court doesn’t do something about it now, it will only get worse.” In which case do you see the vehicle for reversing this trend towards nationwide injunctions, General Sessions?
JS: We have those, we’ve made that an issue in our appeal in all of our cases. I’m not sure which one would get to the Supreme Court first. It may be the issue on the travel ban, so-called. But we’ll have a number of cases where we’ve got injunctions that we’re fighting, and we’ll be raising that in each one of them. It’s never been, it was never done before the 1860s, and it’s just exponentially grown. President Obama got hit, I think, with 10. We’re now at 22 in the first year. So it’s really a disruptive thing that a single judge, as you noted, in a single district, stops the entire policy of the United States government. It’s not ever been, normally and historically, as you know, having been counsel to two attorney generals of the United States, you know that that’s a power that really should be directed at the parties before the court, not a single judge issuing orders for the whole nation.
HH: I do believe that the rise of modern media has obscured this, because they love courts enjoining presidents. It’s an easy story to write. A district court has said the president cannot do X. But they don’t know that for 175 years, not one district court presumed to do that in this country, that only 22 times prior to Trump’s presidency did they do it. but he’s been hit with 22 nationwide injunctions in one year. That is a big shift, General Sessions. And I think it suggests to us that we’re losing self-government to the courts.
JS: That is so right. Look, the Congress is being enjoined many times. The President’s been enjoined. Both of them are elected by the people, responsible directly to the people of the United States, whereas now you have a situation where an unelected lifetime appointed single judge appointed for Hawaii or Maryland or San Francisco, they get to decide these questions and stop the entire functioning of the government? It is a question of power. I feel it more deeply than I ever did. Who gets to decide these questions? Where does the power to make decision lie? Courts are neutral umpires. They are not to be the final word in every dispute just because Congress or the president’s in dispute over a policy. It doesn’t mean the courts get to decide that question. Of course, that’s ridiculous.
HH: Do you think that some of our district court judges, and by the way, this would apply, President Obama got hit with a couple of nationwide injunctions, this is bipartisan…
JS: That’s right.
HH: …that they like the limelight? Do you think they like being the center of attention?
JS: I think, you know, it’s hard to know. Sometimes, I think they just simply want to teach President Trump a lesson, to micromanage his business and make sure they have discovery and lawsuits, and they can pry into everything that was done. They want to cite his speeches in the campaign as having something to do with an order that’s written before them. They should adjudicate the lawfulness of that order, not what the President said last September or September before last in a campaign. How did this happen? These are the kind of things that they want to depose all these aides and so forth. It’s really a dangerous trend.
HH: And we will end up with forum shopping. Now for the benefit of the Steelers fans, that means that lawyers go find the court that is the most radical court they can figure out, and they bring the case there. And we will end up with Hawaii adjudicating, one judge in Hawaii deciding American policy on everything if they can find someone sufficiently radical. And by the way, what’s sauce for the goose, it’ll happen. We’ll flip it around in four years or eight years if it’s a Democrat president unless this gets stopped.
JS: I agree. It’s just, hopefully, we’ll be able to get to the Supreme Court, they’ll consider this issue square up, and we’ll be able to make a good case and curtail this power. The other thing is Congress might, could consider doing also. So we, it’s an unhealthy trend. There’s no doubt about it.
HH: That’s only half the solution, General Sessions. The other is we’ve got vacancies. We’ve got 146 judicial vacancies, and only 54 nominees. We’ve got 5 vacancies on the 9th Circuit Court of Appeals. That’s the circuit that I used to work in. 18 district court judges open in the 9th Circuit. That’s because Dianne Feinstein has a committee that is approving and not approving judges. Where did that come from? That’s unconstitutional as can be.
JS: Well, we need to move on these circuit judges. And but traditionally, senators for district judges play a big role, as you know. But you are correct. We’ve got, I mean, 12 circuit judges confirmed, which is more than almost any president has had. But there are nominations for, you know, we’ve got, like you said, 140-some odd vacant. And the President is nominating great judges. These are talented people, people who finished at the top of their law school classes, and they believe in a classical role of a judge who’s a neutral umpire that decides discrete disputes that appear before them. They’re not policy centers. They serve under the Constitution, under the laws of the United States of America, not above them. They don’t get to manipulate the meaning of words to carry out their own agenda. That’s what we need in a judiciary. Then that lets the people govern through their elected representatives.
HH: Now General, you having been a senator, you have some deep knowledge here. I want to probe this a little bit. You mentioned that senators have a traditional role on district court judges, less so on circuit court. Would that it were true on the 9th Circuit, but it’s screwed up here, too. But let’s talk about those 18 district judges in the 9th Circuit. Why, you know, all we have are Democrat senators on the West Coast. That means every Democrat, every district court judge is going to be a Democrat judge, and that’s not in the Constitution. That’s simply wrong. Can you go back to your friends in the Senate and say we have to rethink this, because we’re going to condemn parts of the country to activist judges for the rest of their lives?
JS: Hugh, you’re raising a very, very important point. A big state like California, traditionally, if a home state senator blocked and refused to support a nominee for a district judge, other senators in the Senate would not vote for them as a respect, as a senatorial courtesy. And this is getting out of hand when you have two very, you know, liberal senators from California, and they want to pick the judges or block so many judges when the president of the United States under the Constitution is the one that gets to make the nomination.
HH: So is your recommendation to your fellow, your former colleagues to break that rule, that tradition? It’s not a rule of the Senate. It’s just a tradition.
JS: That’s right. It’s not in the Constitution or anything, so Chairman Grassley, chairman of Judiciary Committee, is already pushing back, is already saying that there are limits on that, that he’s going to have hearings on nominees, perhaps, that even if they’re being opposed by home state senators. So it just cannot be that we turn this thing on its head where a senator, if they dominate a major state like California, and the president is not able to get nominees confirmed.
HH: Especially when you combine that with nationwide injunctions. That means that elections will be overturned in practice by California lefties for the rest of our days if district courts are allowed to issue nationwide injunctions, and only Democrat senators get to pick district courts in California. That’s a recipe for disaster. It’s just got to change. Let me ask you about the Pennsylvania Supreme Court decision that took away redistricting from the power, the redistricting power from the legislature. Are you urging the United States Supreme Court to take that case and review it?
JS: We have not done so, yet. Pennsylvania, I’m not exactly sure where Pennsylvania is in their objections to it, but obviously, they would normally start any litigation. And we tend to consider whether or not the United States should file a statement of interest and file briefs in those cases. It’s a little bit different than amicus brief. It’s a statement of interest that only the United States government can do. But we’ll be evaluating it, and I do understand and see my friend, Pat Toomey, the senator, was very upset about this development.
HH: You know, on February 27th, the GOP leaders of the Pennsylvania state house and senate asked for an emergency stay. That has not been granted. And I think we’ve got to do everything possible, because we’ve also got the federal redistricting cases up there in which you have taken positions. If the Supreme Court gets into this thicket, General Sessions, every single line in America will be reviewed by district court judges and federal circuit judges and the Supreme Court. It is a nightmare of politicization for the judiciary.
JS: It is a transfer of power, is it not?
JS: The power has been given to state legislatures to decide these matters. And all of a sudden now, how did it happen? The courts are drawing actual lines down streets and blocks and that kind of thing. It’s an unhealthy trend. We’ve had some times in the past when civil rights matters were clearly involved in some of these lines, and courts stepped in. But to routinely redraw lines in a way that tends to particularly advance one party’s interest over another would be unhealthy. And it is basically a political decision by the legislative body and not a judicial decision, in my opinion.
HH: To return to your speech one more time, Attorney General Sessions, from Saturday, you made it clear that you’re going to stand by the efforts to bring sanctuary cities, and now our republic of California, which has its own independent foreign policy, apparently, into line via the Spending Power. Is there any wavering on this? And what is it that you want these sanctuary cities to do that is going to cost them their funding if they do not do it?
JS: First and foremost, we are urging the people in these cities to reevaluate these policies, because they’re placing their own citizens at risk, placing their police officers at risk, placing the federal ICE officers at risk. It’s a really mindless thing when a city puts somebody in jail if they happen to be illegally in the country for a criminal offense like drugs or assault, that they won’t then turn them over to the federal government for deportation, which is what even President Obama said should be done. So this is a, really, amazing development. We’re going to, one of the things we’re saying is we’re not going to provide grants to you until you at least provide minimal cooperation. We’re not trying to, you know, empower or take over police departments to further federal immigration law. What we’re saying is you should at least let us talk to these prisoners in jail, pick them up at the jail. We ask that you give 48 hours’ notice before they are released, and they are objecting even to those kind of things, which means that a criminal gets released in the street, our ICE officers have to chase them down in the neighborhoods where somebody could get hurt, a shooting could occur, an innocent person could get caught in the crossfire. Our people are at much, much greater risk. It costs so much more to do so. So we think this is, we’re going to fight this as hard as can, and of course, we’ve got injunctions against us on that. A judge in Chicago has bound the whole country saying we can’t issue these grants under those conditions, whereas Congress gave us the power to place conditions on these grants.
HH: Well, the Court has to rein in the district courts, and the Senate has to rein in that power. Last question, Mr. Attorney General, Everyone’s looking at their bracket his morning, they’re filling it out. I’m wondering if we get a ruling from you that the United States Department of Justice will not be prosecuting any bracketologists, or any operation of brackets in any offices anywhere in the United States.
JS: Well, Alabama and Auburn both got in, so we’re not suing them right now.
HH: (Laughing) Okay.
JS: It was a fabulous year for Alabama basketball.
HH: So people can fill out their brackets without fear of the FBI busting in?
JS: (laughing) So far. We’ll see how it goes.
HH: Okay. Thank you. Attorney General Jeff Sessions, thank you.
End of interview.