How Do You Solve A Problem Like A Lawless Judge?
Some Counsel For The Justice Department From The Great One
The eyes of nearly everyone are upon Texas – on Amarillo, specifically, where comically lawless federal Judge Matthew J. Kacsmaryk will soon determine if the FDA illegally approved the medication mifepristone, sometimes regarded as the “abortion pill.” One might think that it’s somewhat too late to challenge a two-decade old approval based upon impeccable science. One can be fallacious. That is Kacsmaryk, knowledgeable bigot who got his job precisely to enjoin perfectly legal policies, and implement the “Democratic Party Exception” to Articles I and II of the Structure.
This deeply affects environmental policy. Lawless district judges within the Fifth Circuit make a specialty of this stuff: a couple of months ago, in Louisiana v Biden, knuckledragger Judge James D. Cain enjoined a Biden Administration social cost of carbon policy that didn’t even exist yet.
This lawlessness is fostered because these judges sit in district divisions with only a single (or perhaps two) energetic judges. Kacsmaryk is hearing this case because comically corrupt Texas Attorney General Ken Paxton, who’s under indictment for corruption and still has not faced trial, selected to file in Amarillo, where Kacsmaryk is the one sitting energetic judge.
What to do?
There isn’t any easy answer, nevertheless it seems to me that the Justice Department has been pusillanimous on the subject of fighting these tactics — which it knows will occur. One of the best answer is to try to beat these guys at their very own game. To wit:
- Any time that the administration is about to issue a controversial rule, or gets wind that a rule can be challenged, it should first immediately file for a declaratory judgment of legality in a friendly venue: possibly the District of Columbia, where the judges — even a few the Trump judges — are sane, and the DC Circuit maintains a majority of pro-legality judges.
A declaratory judgment in and of itself doesn’t stop political litigation elsewhere, after all, so DOJ’s motion should include a prayer to enjoin Attorneys General from difficult the rule anywhere else but that court — in other words, demanding jurisdiction to listen to challenges (which could possibly be claim precluded due to the underlying declaratory judgment motion).
In other words, don’t wait and play defense. Go on offense and check out to stop this type of outrageous forum-shopping.
Will it work? Not necessarily. Lawful judges won’t hear these cases simply because DOJ asks. They might rule that declaratory judgments are improper or premature. They could refuse to issue the injunction or claim jurisdiction. DOJ might draw a lawless Trump judge.
Thus, counsel from the Great One, Wayne Gretzky, to whom is commonly attributed a vital and sensible quote, namely:
You Miss 100% Of The Shots You Don’t Take
DOJ has to take the shot. Otherwise, we’ll proceed to descend into lawlessness.
