[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
JUDICIAL OVERREACH AND CONSTITUTIONAL
LIMITS ON THE FEDERAL COURTS
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, INTELLECTUAL
PROPERTY, ARTIFICIAL INTELLIGENCE, AND
THE INTERNET
JOINT WITH THE
SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, APRIL 1, 2025
__________
Serial No. 119-12
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
59-907 WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JAMIE RASKIN, Maryland, Ranking
ANDY BIGGS, Arizona Member
TOM McCLINTOCK, California JERROLD NADLER, New York
THOMAS P. TIFFANY, Wisconsin ZOE LOFGREN, California
THOMAS MASSIE, Kentucky STEVE COHEN, Tennessee
CHIP ROY, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
SCOTT FITZGERALD, Wisconsin Georgia
BEN CLINE, Virginia ERIC SWALWELL, California
LANCE GOODEN, Texas TED LIEU, California
JEFFERSON VAN DREW, New Jersey PRAMILA JAYAPAL, Washington
TROY E. NEHLS, Texas J. LUIS CORREA, California
BARRY MOORE, Alabama MARY GAY SCANLON, Pennsylvania
KEVIN KILEY, California JOE NEGUSE, Colorado
HARRIET M. HAGEMAN, Wyoming LUCY McBATH, Georgia
LAUREL M. LEE, Florida DEBORAH K. ROSS, North Carolina
WESLEY HUNT, Texas BECCA BALINT, Vermont
RUSSELL FRY, South Carolina JESUS G. ``CHUY'' GARCIA, Illinois
GLENN GROTHMAN, Wisconsin SYDNEY KAMLAGER-DOVE, California
BRAD KNOTT, North Carolina JARED MOSKOWITZ, Florida
MARK HARRIS, North Carolina DANIEL S. GOLDMAN, New York
ROBERT F. ONDER, Jr., Missouri JASMINE CROCKETT, Texas
DEREK SCHMIDT, Kansas
BRANDON GILL, Texas
MICHAEL BAUMGARTNER, Washington
------
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
ARTIFICIAL INTELLIGENCE, AND THE INTERNET
DARRELL ISSA, California, Chair
THOMAS MASSIE, Kentucky HENRY C. ``HANK'' JOHNSON, Jr.,
SCOTT FITZGERALD, Wisconsin Georgia, Ranking Member
BEN CLINE, Virginia ZOE LOFGREN, California
LANCE GOODEN, Texas TED LIEU, California
KEVIN KILEY, California JOE NEGUSE, Colorado
LAUREL LEE, Florida DEBORAH ROSS, North Carolina
RUSSELL FRY, South Carolina ERIC SWALWELL, California
MICHAEL BAUMGARTNER, Washington SYDNEY KAMLAGER-DOVE, California
------
SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT
CHIP ROY, Texas, Chair
TOM McCLINTOCK, California MARY GAY SCANLON, Pennsylvania,
THOMAS MASSIE, Kentucky Ranking Member
HARRIET HAGEMAN, Wyoming STEVE COHEN, Tennessee
WESLEY HUNT, Texas PRAMILA JAYAPAL, Washington
GLENN GROTHMAN, Wisconsin JOE NEGUSE, Colorado
MARK HARRIS, North Carolina BECCA BALINT, Vermont
ROBERT F. ONDER, Jr., Missouri SYDNEY KAMLAGER-DOVE, California
BRANDON GILL, Texas DANIEL S. GOLDMAN, New York
CHRISTOPHER HIXON, Majority Staff Director
JULIE TAGEN, Minority Staff Director
C O N T E N T S
----------
Tuesday, April 1, 2025
OPENING STATEMENTS
Page
The Honorable Darrell Issa, Chair of the Subcommittee on Courts,
Intellectual Property, Artificial Intelligence, and the
Internet from the State of California.......................... 1
The Honorable Henry C. ``Hank'' Johnson, Ranking Member of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of Georgia....... 4
The Honorable Chip Roy, Chair of the Subcommittee on the
Constitution and Limited Government from the State of Texas.... 6
The Honorable Mary Gay Scanlon, Ranking Member of the the
Subcommittee on the Constitution and Limited Government from
the State of Pennsylvania...................................... 9
The Honorable Jim Jordan, Chair of the Committee on the Judiciary
from the State of Ohio......................................... 11
The Honorable Jamie Raskin, Ranking Member of the Committee on
the Judiciary from the State of Maryland....................... 12
WITNESSES
Paul J. Larkin, John, Barbara, and Victoria Rumpel Senior Legal
Research Fellow, Edwin Meese III Center for Legal and Judicial
Studies, The Heritage Foundation
Oral Testimony................................................. 16
Prepared Testimony............................................. 19
Former Speaker Newt Gingrich, Former Congressman for Georgia,
50th Speaker of the United States House of Representatives
Oral Testimony................................................. 27
Prepared Testimony............................................. 29
Cindy Romero, Victim of criminal activity perpetrated by Tren de
Aragua, former resident Aurora, Colorado
Oral Testimony................................................. 31
Prepared Testimony............................................. 33
Kate Shaw, Professor of Law, University of Pennsylvania Carey Law
School
Oral Testimony................................................. 35
Prepared Testimony............................................. 37
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the joint Subcommittee
on Courts, Intellectual Property, Artificial Intelligence, and
the Internet; and the Subcommittee on the Constitution and
Limited Government are listed below............................ 102
An Application for a Stay of the Injunction issued by the United
States District Court for the Eastern District of Texas,
Merrick Garland, Attorney General, et al., Applicants v. Texas
Top Cop Shop, et al., submitted by the Honorable Chip Roy,
Chair of the Subcommittee on the Constitution and Limited
Government from the State of Texas, for the record
An article entitled, ``District Court Reform: Nationwide
Injunctions,'' Apr. 9, 2024, Harvard Law Review, submitted by
the Honorable Darrell Issa, Chair of the Subcommittee on
Courts, Intellectual Property, Artificial Intelligence, and the
Internet from the State of California, for the record
An article entitled, ``Why Judge Boasberg's Deportation Order Is
Legally Invalid,'' Mar. 31, 2025, The Wall Street Journal,
submitted by the Honorable Darrell Issa, Chair of the
Subcommittee on Courts, Intellectual Property, Artificial
Intelligence, and the Internet from the State of California,
and the Honorable Harriet Hageman, a Member of the Subcommittee
on the Constitution and Limited Government from the State of
Wyoming, for the record
Materials submitted by the Honorable Harriet Hageman, a Member of
the Subcommittee on the Constitution and Limited Government
from the State of Wyoming, for the record
An article entitled, ``As the U.S. tracks suspected
Venezuelan gang members, a look at a group that's
helping,'' Mar. 25, 2025, Miami Herald
A copy of the Presidential Proclamation entitled,
``Invocation of the Alien Enemies Act Regarding the
Invasion of The United Statres by Tren De Aragua,'' Mar.
15, 2025, The White House
An article entitled, ``An `Administrative Error' Sends a Maryland
Father to a Salvadoran Prison,'' Mar. 31, 2025, The Atlantic,
submitted by the Honorable Mary Gay Scanlon, Ranking Member of
the the Subcommittee on the Constitution and Limited Government
from the State of Pennsylvania, for the record
Materials submitted by the Honorable Jamie Raskin, Ranking Member
of the Committee on the Judiciary from the State of Maryland,
for the record
An article entitled, ``The Makeup Artist Donald Trump
Deported Under the Alien Enemies Act,'' Mar. 31, 2025,
The New Yorker
A Case document in the matter of Kilmar Armando Abrego-
Garcia, File A 201-577-119, U.S. Dept. of Justice,
Executive Office for Immigration Review, Baltimore,
Maryland
JUDICIAL OVERREACH AND CONSTITUTIONAL LIMITS ON THE FEDERAL COURTS
----------
Tuesday, April 1, 2025
House of Representatives
Subcommittee on Courts, Intellectual Property, and
Artificial Intelligence, and the Internet
joint with the
Subcommittee on the Constitution and Limited Government
Committee on the Judiciary
Washington, DC
The Committees met, pursuant to notice, at 10:12 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Darrell Issa
[Chair of the Subcommittee on Courts, Intellectual, Property,
Artificial Intelligence, and the Internet] presiding.
Present from Subcommittee on Courts, Intellectual Property,
Artificial Intelligence, and the Internet: Representatives
Issa, Jordan, Massie, Fitzgerald, Cline, Gooden, Kiley, Lee,
Fry, Baumgartner, Johnson, Raskin, Lofgren, Neguse, Ross,
Swalwell, and Kamlager-Dove.
Present from Subcommittee on Constitution and Limited
Government: Representatives Roy, McClintock, Hageman, Hunt,
Groth-man, Harris, Onder, Gill, Biggs, Scanlon, Cohen, Jayapal,
Balint, Goldman, Moskowitz, and Crockett.
Mr. Issa. [Presiding.] The Subcommittee will come to order.
Without objection, the Chair is authorized to declare a
recess at any time.
We welcome everyone here today for a Joint Hearing on
Judicial Overreach in the Federal Courts.
Before I recognize myself, I would ask unanimous consent
that Members of the Full Committee, but not of the
Subcommittees, Mr. Moskowitz and Mr. Biggs, will be allowed to
sit in and participate in today's hearing. Without objection,
so ordered.
As a point of personal privilege, before I make my opening
statement, Speaker Gingrich, I have been here now--this is my
25th year on the Hill--and the first time I have had the
pleasure of having you as a witness. I will cherish that as
much as I cherish the time that I once carried your bag off an
airplane in San Diego and found out you were the Speaker, but
you were also a regular guy.
So, with that, I will now recognize myself for an opening
statement.
We are here today because a major malfunction in the
Federal Judiciary has been recognized by both Republicans and
Democrats: Activist District Court Judges usurping themself
with their Article III power and imposing on the Nation
injunctions beyond the scope of what the U.S. Congress under
statute has given Federal judges.
Theses rogue judge rulings are a new resistance to the
Trump Administration and the only time in which judges in robes
in this number have felt it necessary to participate in the
political process rather than participate in the Article III
powers given to them, both by the Constitution and by statute.
President Trump was elected to assert many policies,
including the deportation of criminal aliens. He did so
publicly and was elected by a majority of Americans and the
vast majority of the Electoral College, but he also did so in
stark contrast to Executive Orders of the previous
administration.
Time and time again, rogue judges have asserted, as though
they were five of the nine members of the Supreme Court, their
authority, when the President was doing nothing more than
undoing a policy of his predecessor--one which they seemed to
have no problem within the previous administration.
Let me be clear: It should never have come to this. It is
within the Supreme Court's ability to rule appropriately that
judges have exceeded their jurisdiction. Time and time again,
the High Court has ruled on the substance of the ruling rather
than on the inappropriate nature of an injunction overly broad
and affecting hundreds of thousands or millions of people
beyond the plaintiffs before that court.
Just last night, a judge halted the administration's plan
to end temporary protective status for about 350,000
Venezuelans that Joe Biden welcomed into this country and gave
temporary protective status to. ``Temporary'' seems not to be a
word understood by the court. If President Biden could give
protective status temporarily, how, in fact, could it not be
the prerogative of the next President to undo that status?
Nowhere in that protective status was there an act of Congress
or a recognition that temporary equals permanent. This is but
the latest outrage coming from lower, or at least I might say,
the lowest courts.
I have said from the start that my colleagues on the other
side of the aisle should support this legislation. After all,
it was the Biden Administration who opposed these universal
injunctions and said they were illegitimate. In fact,
legislation in the last Congress authored by a Democrat is
substantially similar to the one that we offer today and would
have the same effect.
To quote the previous administration's Solicitor General,
literally, the woman who spoke on behalf of the administration
before the Court, she said,
The government must prevail in every suit to keep its policy in
force, but plaintiffs can derail a Federal program nationwide
with just one lower court victory.
Those words by Elizabeth Prelogar, President Biden's own
Solicitor General, were from October 2024. In other words,
after almost the entire four years of the Biden Administration,
they still believed, and believed until the end, that this was
wrong. Yet, we will probably hear today no support on the other
side of the aisle.
In fact, this is not new, but it is not old. For 180 years
of our Nation, there were no such injunctions. Only beginning
in 1963 did District Courts begin to, in relatively small
amounts, believe that they could do these without multiple
plaintiffs from multiple circuits.
From 2001-2023, the number grew to 96. An incredible 64 of
those occurred during only four years--the four years of
President Trump, meaning that more than half of all injunctions
in this millennium, this century, were against President Trump
in his first four years.
That used to seem like a lot, but during President Trump's
first nine weeks in office this year, he has already faced more
nationwide injunctions than President Joe Biden did in his
entire four years.
The Federal Judiciary isn't interpreting the law; it is
impeding the presidency. It is, in fact, not co-equal, but
holding itself to be superior.
Since Marbury v. Madison, there's no question at all that
the third branch says it is the last word, and we have accepted
that for over 200 years. That acceptance is for the Supreme
Court making the final decision, not one of over 700 district
and Appellate judges.
The reality is every judge is considering himself not to be
an Associate Justice, not to even be the Chief Justice, but, in
fact, to be a combination of the Justice and the President of
the United States.
This demands that we make a change and make it quickly.
When a judge believes that he can order a full plane of
criminal aliens back to U.S. soil, essentially, saying that 200
years of a statute is to be overturned by his quick order,
without knowing even who was on the airplane--and finally,
demanding that President Trump spend $2 billion in a single
weekend--and I repeat, a weekend--and not tolerating any delay
because that money was money that this judge believed should be
spent, even if it was reckless and illegal.
The last one might be understandable because a judge might
have misunderstood and thought that President Biden was still
in the White House, or that this $2 billion was like the $188
billion that President Biden tried to forgive in student loans,
and then, when thwarted by the U.S. Supreme Court, found a
workaround that he believed was legitimate and gave away
another $8 billion in loan forgiveness. No question at all, we
had a rogue in the White House for four years.
Many today will talk about the current occupant of the
White House, but, in fact, most of the rulings that are being
overturned are simply undoing rogue activities of the previous
administration.
The No Rogue Rulings Act does not eliminate the ability of
judges to make decisions. In fact, every decision made by a
judge on behalf of a plaintiff would still go forward, but it
would go forward only as to the plaintiff in front of him and
not a Nation as a whole, determined by one judge, neither
elected nor appointed to a position of sufficient power to
speak on behalf of the entire Nation.
With that, I would recognize the Ranking Member, Mr.
Johnson, for his opening statement.
Mr. Johnson. Thank you, Mr. Chair.
Thank you to the witnesses for your appearance today.
A special shout out to former Speaker Newt Gingrich from
the great State of Georgia. Professor Gingrich, good to see
you.
Of the many troubling actions the Trump Administration has
taken in its first 71 days, among the most damaging of his
authoritarian, dictatorial, and unprecedented use of
Presidential power to instill fear, intimidate, exact revenge
against, and punish those who dare to stand up to him, and hold
him accountable to the laws of our Nation, a climate of fear
and trepidation has descended on the Nation. The people of
America are more afraid today of our democracy and for their
personal safety than ever in our lifetimes.
College students have disappeared off the streets
paramilitary style by plainclothes, masked-wearing individuals,
and held incognito for days before they were discovered
thousands of miles away in some private, for-profit ICE
detention facility. Why? For exercising their free speech First
Amendment rights.
Universities, bastions of free thought, have been punished
for having the wrong ideology by having their Federal funding
revoked.
Major law firms that dared to have brought cases against
King Trump have been targeted with blatantly unconstitutional
Executive Orders that, if allowed to stand, would shut those
law firms down. Unfortunately, the mega law firms Paul Weiss
and Skadden Arps chose to settle with the king by pledging to
represent pro bono only those persons, and causes that the king
approved of. Shame on them.
Then, there are other law firms that have stood up to King
Trump and they have challenged his Executive Orders against
them in court, and they have won. Kudos to the lawyers at
Perkins Coie, Covington & Burling, and Jenner & Block, among
others, for standing up for themselves and for the rule of
law--and for our democracy.
Although Federal courts have consistently ruled against
these numerous unconstitutional Executive Orders of President
Trump, the mere existence of these retaliatory Executive Orders
should be chilling to all of us. There has been no semblance of
due process or fairness in any of these cases. Trump acts
first; he deports first; he revokes funding first; he
blacklists law firms first; and then, questions anyone who
challenges him later.
Somehow, in spite of this, we are here today to talk about
the, quote ``overreach,'' of the Federal courts--not the
overreach of the Executive Branch official who is doing the
overreaching.
Our Republican colleagues want us to believe that simply
because the courts are exercising their Article III power of
equitable relief to temporarily halt some of Trump's most
excessive Executive actions, it is a sign of rot in our
judicial system; that it is somehow our courts and judges, not
the President, who have gone rogue and are overreaching.
I disagree. More importantly, so do the numbers. Since day
one of his second term, Trump has attempted to rework our
Constitutional system of government through the Presidential
fiat, issuing a record 107 Executive Orders in his first 71
days in office.
As I mentioned, many of these Executive Orders are unlawful
or unconstitutional, and the President does not have the power
to change the Constitution through Executive Order, even if his
name is Donald Trump.
Naturally, they have been challenged in court, and of the
over 150 cases filed against the Trump Administration, judges
have ruled against him 46 times. Of those 46, only 17 are
nationwide injunctions.
The cases are spread across District Courts throughout the
country, and judges appointed by Democrat and Republican
Presidents have all ruled against Donald Trump. What we are
seeing playing out in courts across the country today is the
judicial system working exactly as it should.
America's Federal courts have been handed case after case
challenging Executive Orders standing on questionable legal
footing. Yet, the proportionally small number of nationwide
injunctions shows the restraint exhibited by the judges
considering those cases.
I don't know what Donald Trump thought would happen when
the cases made their way to the Judicial Branch, but, clearly,
he has had enough with losing in court. Instead of letting the
rule of law play out, Trump and his allies here in Congress now
have chosen to go on the attack.
Trump and his cronies have called Federal judges ``rogue''
and ``corrupt.'' It was suggested that a judge supports
terrorists, and they have called judicial rulings ``judicial
coups.''
The MAGA Republicans in Congress have called for judges to
be impeached, not because they committed a high crime or
misdemeanor, but simply because they ruled against Trump. The
far-Right media personalities have attacked the judges'
families, publicizing their personal information for millions
of their riled-up followers on social media.
What I just described is nothing less than a full-scale
assault on our entire judicial system, and it is putting
judges, their family, and their staff's lives at risk. We don't
agree on much on this Committee, but we should be able to agree
that this is wrong. We should be able to agree to back away
from language demonizing the Judicial Branch, no matter what
political party we belong to.
Today's hearing is not just about helping Donald Trump
undermine the Judicial Branch, though--well, let me say that
this hearing is not just about helping Donald Trump undermine
the Judicial Branch, though certainly it is about that, but
Republicans on this Committee are sending a message to anyone
who dares to stand up to Donald Trump: If you step out of line,
they will target you next.
We cannot afford to allow what Donald Trump is doing
through retaliatory Executive Orders, through targeting
immigrants, through threatening lawyers, through vilifying
judges, to become the normal. Our Constitution is being tested,
and throughout American history it has stood up to attempts to
weaken its protections.
Americans across the country are watching and they know
they didn't vote for Trump to destroy our democracy. They voted
for Trump because he promised to lower the cost of living, and
Trump has betrayed their trust. Prices are going up and our
economy is headed toward recession, as Co-President Musk
threatens to take away people's Social Security, Medicaid,
Medicare, SNAP benefits, and veterans' care. Trump is doing
nothing to deliver on the promises to the American people.
I stand with my fellow Americans, with the Federal judges
who continue to bravely do their jobs in the face of criticism.
I yield back.
Mr. Issa. I now recognize the Chair of the Subcommittee on
the Constitution and Limited Government, Mr. Roy, for his
opening statement.
Mr. Roy. I want to thank the gentleman from California and
my Co-Chair on this hearing. It's an important hearing. I thank
him for his work on this issue, as well as his legislation
addressing the matter.
I would like to welcome the guests who are joining us here
today. I appreciate your time.
Obviously, particularly you, Mr. Speaker, and your great
service to this country, and great to have your expertise here.
We thank you.
I also want to give a shout out to Cindy Romero. I met Ms.
Romero last August in Aurora, Colorado, and I appreciate what
she is going to be here to testify to today and her great
service.
So, with that, I would like to take a slightly different
angle, as the Chair of the Subcommittee on the Constitution,
than the direction that my friend from California took, because
I want to emphasize the judicial overreach we have witnessed
over the last two months, and nationwide injunctions more
broadly, that are undermining the Constitutional structure our
Founders so wisely envisioned.
The nature of the Executive Branch was a primary point of
contention at the Constitutional Convention. Some delegates
favored a plural Executive, thinking that this arrangement
would better preserve liberty. They were wrong, and our
Founders wisely resisted their calls. Instead, the Constitution
lodges the Executive power in a single President of the United
States.
Alexander Hamilton offered the classic defense of this
arrangement in Federalist 70, emphasizing the vigorous and
energetic Executive is necessary to defend our liberty from
foreign threats.
Hamilton rightly argued that unity in the Executive was the
essential ingredient in this formula. Only a single Executive
could act with the ``decision, activity, secrecy, and
dispatch'' necessary to adequately carry out the office.
On a note, I have introduced legislation in the past,
called the Article I Act, to try to cabin-in the Executive
Branch when it is not necessarily working directly with
Congress. I am happy to work with colleagues on the other side
of the aisle on these concepts when we have these lingering
emergencies. In many cases, these national emergencies date
back to the 1970s.
There are times for the Congress and for the Legislative
Branch to assert itself, but the President's authority is at
its zenith when we are talking about his actions as Commander-
in-Chief. Injunctions and temporary restraining orders halting
Presidential actions nationwide threaten the key feature of our
Constitutional architecture, undermining the core premise of
unity in the Executive Branch--the unitary Executive, as we
refer to it.
Even the most strident proponents of a plural Executive at
the Constitutional Convention advocated for an Executive
council of three, maybe five, members. Today, in practice, we
are governed by an Executive council of 678--the nationally
elected President and 677 District Court judges, each of whom
retains a functional veto over Executive actions through their
power to issue nationwide injunctions.
Scholars have long understood that a hostile judiciary, or
even a single hostile judge, could abuse its power to issue
nationwide injunctions to infringe on the lawful authority of
the President of the United States. Now, that is not a partisan
point. I have got numerous examples of our colleagues on the
other side of the aisle who have raised these concerns.
The Biden Administration's Solicitor General Elizabeth
Prelogar told the Supreme Court as recently as 2024 that,
quote,
A court of equity may grant relief only to the parties before
it. The District Court violated that principle by issuing a
nationwide injunction. . . .
In 2022, Solicitor General Prelogar asked the Supreme Court
to address nationwide injunctions as permissible relief in The
United States v. Texas, arguing that District Courts normally,
quote, ``should only provide relief for the benefit of the
prevailing challenger.''
What happened there was our Democratic colleagues started
realizing that, when Republicans went to District Courts to get
injunctions against their President, then, suddenly, they
didn't like it so much. So, they were raising concerns.
Justice Elena Kagan spoke out against nationwide
injunctions by a single District judge in 2022.
The ability of a single judge to stop implementation of a
policy across the country.
She stated,
In the Trump years, people used to go to the Northern District
of California, and in the Biden years, they go to Texas. It
just can't be right that one District judge can stop a
nationwide policy in its tracks and leave it stopped for the
years that it takes to go through the normal process.
Former United States Rep. Mondaire Jones introduced the
Injunction Reform Act in 2022. I could go through the quotes
that he offered, but I won't. I can offer those for the record
without objection.
Mr. Issa. Without objection.
Mr. Roy. In a letter to William Torrence dated June 11,
1815, Thomas Jefferson explained who decides Constitutional
questions. ``Certainly there is not a word in the Constitution
which has given judges that power, authority to decide on the
constitutionality of a law, more than to the Executive or
Legislative Branches''--meaning we all have an obligation and a
role to do that. ``Questions of property, of character and
crime being ascribed to the judges, through a definite course
of legal proceeding, laws involving such questions belong of
course to them''--in the judiciary. ``and as they decide on
them ultimately and without appeal, they of course decide, for
themselves, the Constitutional validity of the law. . . .''
In other words, our Founders never intended the Federal
courts to have the ability to unilaterally decide
Constitutional questions, as these judges are unelected and
were never given the power to legislate from the bench.
Treating the courts as the final authority on public
policy--as the final authority on public policy--grants them
more power than even Madison's rejected Council of Revision
proposal at the Constitutional Convention.
Indeed, it happened regularly during the first Trump
Administration, as we have pointed out. Now, in the second
Trump Administration, it is on steroids. As of last week,
District Courts had issued no fewer than 17 nationwide
injunctions against administrative actions, with scores more
temporary restraining orders, or TROs, as we call them, barring
the President from enacting the agenda on which he was elected.
Alexander Hamilton wrote in the Federalist 78 that even the
Supreme Court would wield, ``neither force nor will'' over
politics, indicating he never envisioned the judiciary having
the final say on every political decision or action.
Now, these injunctions and TROs have even infringed on what
the Supreme Court has described as ``conclusive and
preclusive'' Presidential powers, including core Presidential
authorities to conduct foreign affairs and repel invasions.
Now, I have got numerous examples of what we have been
dealing with. This is a 56-page summary that I have got, of the
158--it might be 159 now, because we are having to track them
on a daily basis--lawsuits against the administration and
against the President for carrying out the agenda on which he
was elected. Seventeen injunctions; I think there are a great
number more TROs.
The cases we are talking about, not going through all of
them, nationwide TRO enjoining the Trump Administration from
freezing foreign assistance funding; enforcement order
requiring the administration to pay approximately $2 billion
within 36 hours. It is a judge singularly acting against the
President's actions.
Another one: Provisionally certifying a class and enjoining
the Trump Administration from deporting members of a foreign
terrorist organization.
A nationwide injunction enjoining the Trump Administration
from pausing, terminating, or amending any equity-related
grants or contracts: DEI.
A nationwide injunction enjoining the Trump Administration
from prohibiting Federal funds from being spent to promote
gender ideology.
A nationwide TRO enjoining the Trump Administration from
prohibiting biological men from being housed in women's
prisons.
Two injunctions regarding the administration implementing
an Executive Order considering transgender individuals in the
military and birthright citizenship.
Issue after issue after issue that the administration is
trying to act on, according to the campaign on which he ran.
In particular, has earned the scrutiny it has received.
Just two weeks ago, Judge Boasberg of the District Court of the
District of Columbia ordered the administration to stop the
deportation of members of Tren de Aragua, a violent Venezuelan
gang that has terrorized cities and towns across the country.
At this table in this room, we heard testimony from Alexis
Nungaray whose daughter Jocelyn was murdered by TDA in the
suburbs of Houston. Right here, we heard her powerful testimony
about what that gang has done to this country.
We are going to hear from Ms. Romero today about what that
gang did to her community in Aurora, Colorado.
Here we have a single District judge who is asserting
jurisdiction from the District of Columbia to tell the
President of the United States that he cannot deport members of
the violent TDA gang out of this country to keep our streets
safe. That is not what is supposed to occur.
Today's hearing, where we will learn from Constitutional
scholars and real Americans about what is wrong with the
current system, is a good start. We should carefully study
whether Congress should push back against judicial overreach
using its Constitutional power to structure and fund the
courts.
Our Constitution did not create a plural Executive or
Judicial tyranny. Today we are far too close to both.
With that, I yield back.
Mr. Issa. The gentleman yields back.
We now recognize the Subcommittee Ranking Member for her
opening statement, Ms. Scanlon.
Ms. Scanlon. Thank you.
Like the Chair of the Subcommittee on the Constitution, as
Ranking Member, I, too, would like to address the
Constitutional concerns raised by this hearing.
Our Republican colleagues have called this hearing today
for one reason: Because this White House, this President,
continues to lose over and over again in court, as people and
groups from across the political spectrum challenge the barrage
of unconstitutional and illegal Executive actions taken by this
White House in just the first few weeks of this term.
Because it doesn't matter if the judges were appointed by
Bush, Biden, Obama, Reagan, or by Trump himself; when the
President attempts illegal or unconstitutional actions, United
States judges, guided by the letter of the law, must rule
against him.
It is a confirmation of the total subservience of today's
Republican Party to this President that their response to
multiple judicial rulings of Executive overreach is a hearing
entitled, ``Judicial Overreach and Constitutional Limits on
Federal Courts''--when we should be holding a hearing on
Presidential power grabs and Constitutional limits on Executive
power.
This is civics 101. The Constitution provides in Article I
that Congress writes the laws; in Article II, the President
administers the laws, and in Article III, the courts interpret
the laws.
Our Republican colleagues are concerned about the
unprecedented number of successful lawsuits challenging this
President's Executive overreach, but it is not the actions of
the courts in interpreting our Constitution and laws that are
unprecedented. It is the scope and breadth of this President's
Executive Orders that is unprecedented.
It is this President's attempt to go it alone; to usurp the
power of Congress and we the people; to rewrite the laws of
this country and the Constitution, and to reserve unto himself,
rather than the judiciary, the right to interpret the laws and
our Constitution.
The sheer volume of unconstitutional and illegal actions
taken by this President in just the first few weeks of his term
has led some to wonder if the President fundamentally
misunderstands the nature and terms of his Article II powers.
Specifically, when Article II, Section 3, says that the
President shall take care to faithfully execute the laws passed
by Congress, does this President think that the word
``Execute'' means that he is supposed to kill laws rather than
carry them out?
Unfortunately, the underlying rationale for much of this
action is a radical theory set forth in Project 2025 and
elsewhere. It is one that would vest Federal power in a unitary
Executive, sidelining two of the three co-equal branches of our
government--Congress and the Judiciary.
We are here because Republicans who control the House and
Senate have, thus far, chosen to abandon their Constitutional
duty to constrain an out-of-control Executive Branch. If they
don't see anything wrong with it, their constituents do, and
more of our colleagues would know that if they actually showed
up at town halls in their districts.
Our Constitution is built on the rule of law; that no one
is above the law, and our legal system is built on the idea of
judicial independence. In the past two months, we have seen our
judicial system working as the Founders intended, and as the
Supreme Court ruled in the Madison v. Marbury over 200 years
ago, it is the job of our Judiciary to declare laws and
Executive actions unconstitutional if they are in conflict with
the Constitution.
The Federal judges who have ruled against President Trump's
unlawful power grabs are simply interpreting the Constitution
and the laws passed by Congress to protect the rights of the
American people. To suggest otherwise is to substitute a theory
of Executive primacy that is completely at odds with our
Constitutional history and separation of powers.
Mr. Chair, I wish that we could dismiss today's hearing as
just political theory or theater, but the stakes are too high
for the American people and their rights hang in the balance.
While this administration has begun by attacking people it
vilifies, including immigrants, students, or working people, no
one should kid themselves; it is clear the rights of every
American are at stake.
When the White House and some of our colleagues claim the
right to deny due process to immigrants who they claim have
broken a law, that is a sham. Because if you don't support the
rights of immigrants to due process, then you don't support
anyone's right to due process. Because without due process, the
government can do whatever it wants to anyone, including
citizens, and they aren't able to defend themselves. What is to
stop ICE from saying that Mr. Roy or Mr. Jordan is a member of
a violent gang and shipping them out of the country?
Attacks on our courts, whether in the form of Executive
Orders; punishing law firms and lawyers that dare to stand up
for the rule of law; or hearings like this, attempting to
constrain the courts, or tweets urging impeachment or violence
against judges, are part of a broader attack on the rule of
law.
Our Republican colleagues have shown that they are not
concerned about civil rights and the rule of law. Their sole
concern appears to be whether or not a Federal judge has ruled
against this administration.
They have gone so far as to call for impeaching judges who
rule against this White House, eliminating courts altogether or
advocating cutting funding for the court system. The fact is,
if the President wants to end his legal woes, he can simply
follow the Constitution and our laws. Because if a President
issues illegal Executive Orders, the courts are duty-bound to
block them.
Rather than accepting that reality, our Republican
colleagues would rather hand the President the keys to
unchecked authoritarian power. Let's be real. Americans elect a
President every four years, not a king.
Even if President Trump had won a landslide electoral
victory, which he didn't, that would be beside the point. An
electoral victory does not justify running roughshod over the
courts and the Constitution, which every President is sworn to
uphold.
Presidential power is not absolute. When President Trump
empowers Elon Musk to ignore laws Congress passed or slash
funding Congress appropriates, he is undermining the power of
the American people who voted us into office.
If President Trump's agenda is as popular as he claims, he
can work with his allies in Congress to convince the American
people to support it. He has no right to simply do whatever he
wants, just because House and Senate Republicans don't have the
backbone to stop him.
The Democrats and Independents are standing up against
President Trump's blatant power grabs. Because if he can deny
the rights of some people, there's nothing stopping him from
denying the rights of all people across America. That should
concern everyone in this room and everyone across this Nation.
I yield back.
Mr. Issa. The gentlelady yields back.
We now recognize the Chair of the Full Committee for his
opening statement, Mr. Jordan.
Chair Jordan. Thank you, Mr. Chair.
Who decides? That is the fundamental question. Who gets to
make the call? Is it the guy whose name was on the ballot or is
it some bureaucrat? Is it the guy who got 77 million votes or
some District judge?
The Left always says, ``Trust the bureaucrat. Trust the
judge. It's the Faucis; it's the Boasbergs who get to make the
call.'' After all, they're the experts. They're smarter than
``We the People.'' They're smarter than all us hillbillies in
flyover country who voted for President Trump. Trust them.
That's not how it works. ``We the People'' have the power.
You know what's interesting? For all the Left's talk about
democracy, they don't really trust it.
Last summer, they kicked their nominee off the ballot
without a vote, without an election, and they put someone else
on the ballot without a vote and without an election. So, of
course, they like some judge issuing orders or injunctions that
stop the head of the Executive Branch from doing what he said
he was going to do when he ran for the job, and when the
American people elected him.
Think about it. Here in D.C., an elected judge thinks he is
better equipped to determine military readiness than the
Commander-in-Chief.
Unelected judge in California thinks he gets to decide how
many probationary employees work in the Executive Branch, not
the guy who was elected to run the Executive Branch.
Another unelected Federal District judge here in D.C.
thinks he gets to decide how long illegal gang member
terrorists stay in our country, not the President, not the
Commander-in-Chief.
Now, that same judge gets randomly assigned--randomly
assigned--the Hegseth case, and he will get to determine who
the Secretary of Defense can talk to and how he has to do it,
not the President.
I think Americans see through this all. They know
Representative Issa's legislation is exactly what is needed.
They know who they elected, and they want him to make decisions
that affect the Executive Branch and that affect our country.
So, I want to thank our Chairs Mr. Issa and Mr. Roy for
this hearing. I want to thank Mr. Issa for his bill; Mr.
Schmidt, a Member of our Committee, who we put his amendment on
that bill, which I think makes it even stronger. We passed that
legislation four weeks ago. It is going to be on the floor
tomorrow and it is going to pass the House.
I want to thank our witnesses for being here.
Ms. Romero, what you went through, thank you for coming. Of
course, Speaker Gingrich, for your half a century of service to
the Constitution and the country. Thank you for joining us.
That is the question, though: Who decides? The individuals
that ``We the People'' elect or someone else?
I yield back.
Mr. Issa. The gentleman yields back.
We now recognize the Ranking Member of the Full Committee,
the gentleman from Maryland, Mr. Raskin.
Mr. Raskin. Thank you very much, Mr. Chair.
Thanks to our witnesses for joining us today.
So, why have 34 Federal judges from 11 different districts
with a combined 474 years of service on the bench, judges
appointed by Presidents Reagan, Bush, Clinton, Bush, Obama, and
Trump, entered 57 different preliminary injunctions and
temporary restraining orders against President Trump's and Elon
Musk's Executive Orders and actions, like the ones nullifying
Constitutional birthright citizenship; unilaterally dismantling
congressionally created agencies; and impounding and diverting
funds appropriated by Congress?
Well, the Majority says it is because these are radical
judges. They lead off, as our good Chair Issa did, with Judge
Jeb Boasberg, the Chief Judge of the District Court of the
District of Columbia, who enjoined the mass roundup and
deportation of immigrants to an infamous El Salvadorian prison
in peacetime without any due process at all, allegedly under
the Alien Enemies Act of 1798, a statute explicitly limited to
wartime and military invasion.
Some of our colleagues have been railing against Judge
Boasberg for ordering the planes to be turned around. They say
those planes were filled with terrorists, I think my good
friend from Texas said.
Well, here is one person of many who wasn't a terrorist on
that flight or a gangbanger. His name is Kilmer Garcia. He is a
Marylander married to a U.S. citizen who has a five-year-old
son with autism. He went to pick up his son, but he was picked
up first by ICE, and then, he was shackled and put on that
airplane and shipped off to the torturers of El Salvador
without ever having the benefit of those two most beautiful
words in the English language: Due process.
He never saw a judge. Nobody ever told him what he was
being charged for. Nobody ever told him that there were any
charges against him. He was sent to a mega-prison run by the
self-proclaimed dictator of El Salvador.
Yesterday, do you know what happened, Mr. Chair? The Trump
Administration admitted that it had made a mistake. He was not
actually a gangbanger. He was not a criminal. It was all a
mistake. If there had been due process, maybe that would have
been determined, but there wasn't. They put him on that plane,
and he is in El Salvador.
Well, all's well that ends well, right? No. The
administration says there's nothing they can do about it now
because he is no longer in U.S. custody. This guy lives in my
State, married to a U.S. citizen, with citizen children. He's
stuck with the dictator of El Salvador.
Well, Judge Boasberg, some of our colleagues want to
impeach him. Look, some of our colleagues, they have got
``Wanted'' signs in the Cannon House Office Building with the
names and faces of judges on them. They want to impeach them
now. They want to impeach Judge Boasberg.
Some of my colleagues should be alerted to this fact: Judge
Boasberg was first named to the bench by President Bush. He was
Justice Kavanaugh's roommate at Yale. Known in legal quarters
as a very conservative judge. They want to impeach him because
he stood up for the rule of law.
Now, Democrats say all these Executive Orders and actions
are being struck down not because these are radical Left, rogue
judges, but because the judges, regardless of who appointed
them, are doing their jobs.
If the number of decisions striking down Trump illegalities
are unprecedented today, it is only because the sheer number of
illegal acts committed in the first 100 days is unprecedented.
America has never seen anything like it before in our entire
history.
Trump and Musk have been systematically violating the
Constitution and breaking the law to trample the rights of the
people and steal our data, fire excellent Federal workers en
masse, and dismantle congressionally created government
agencies and programs--from the VA and Medicaid to NOAA, NIH,
and Social Security, which Elon Musk called, quote, ``the
biggest Ponzi scheme of all time.''
When brave Americans go to court to defend themselves
against the President of the United States and the richest man
in the world, these judges from the across the political
spectrum are showing up to work and they're showing America why
we have an independent judiciary.
Yes, I have got to tell my friend Chair Jordan that, even
if you campaign on doing something unconstitutional, like
naming people kings and queens or stealing other people's
money, no, that doesn't make it Constitutional, even if you
campaigned on it. The vast majority of the things here, I never
heard of them campaigning on. In any event, it is irrelevant to
the job of the courts.
Anyone who has read any of the decisions knows that what we
are witnessing today is a matchless Constitutional crime spree
by a rogue President and his DOGE enforcer, a government
contractor who has pocketed $38 billion from the taxpayers,
multiples more than he has ever even claimed to have saved us.
We know how DOGE makes typos converting millions into billions.
Read the decisions. Look at these cases finding that Trump
violated Congress' spending power and usurped our lawmaking
power under Article I. Read the cases finding that Trump
violated the First Amendment free speech rights; the Fifth
Amendment due process rights; and the Sixth Amendment counsel
rights of the
people.
Even by discriminating by name against law firms and
lawyers, actually banning specific firms and lawyers from
Federal buildings and courthouses, Federal contracts, and
Federal employment--all simply because they dared to represent
their clients, and Trump hates them.
Now, out of this mountain of cases, which I can surmise our
colleagues have not read, let's zero-in on Trump's Executive
Order contradicting the very first sentence of the 14th
Amendment, which says that any person ``born or naturalized in
the United States, and subject to the jurisdiction thereof,''
is a citizen of the United States.
Trump got struck down by a Reagan judge, a Biden judge, an
Obama judge, and a Bush judge. The Reagan judge said, quote,
I've been on the bench for four decades. I can't remember
another case where the question presented is as clear as this
one. This is a blatantly unconstitutional order.
``Blatantly,'' this is from a Reagan judge.
Now, my colleagues seem to think that an Executive Order is
greater than a law or the Constitution itself. An Executive
Order cannot trump a Federal statute, much less the
Constitution. An Executive Order is just an order to the
Executive bureaucracy to follow a policy unless and until it is
countermanded by law, by the courts.
Many of our colleagues are following Trump and Musk and
calling for impeachment right now. There have been only 15
Federal judges impeached in all American history--always for
serious professional misconduct, like taking bribes, stealing
from the court, or habitual drunkenness--not even occasional
drunkenness--habitual drunkenness on the bench. Congress has
never defined a doctrinal and interpretative disagreement as a
high crime and misdemeanor, much less when the judge's
reasoning was airtight correct.
The spreading movement to impeach and attack judges is so
alarming that Chief Justice Roberts issued a rare statement
last week. He said,
For more than two centuries, it has been establishment that
impeachment is not an appropriate response to disagreement
concerning a judicial decision.
The proper response, of course, is to appeal the decision.
To be fair, Chair Issa expressed his strong disapproval of
these ``Wanted'' posters yesterday in the Rules Committee.
Now, for some Members, talk of impeaching these so-called
rogue judges is just fun and games, but the vicious assaults,
the vicious rhetorical assault on the judiciary has turned into
something more sinister in certain quarters--actual violent
threats, bomb threats, and direct intimidation.
Judge Boasberg, the Bush appointee, must endure scandalous
online attacks and insults by President Trump and Elon Musk and
their followers. Even worse, the campaign of vilification has
spread to Judge Boasberg's family, including outrageous attacks
on his daughter who had her photo and her place of work posted
on social media by Elon Musk to his 290 million followers.
These threats follow an actual bomb threat made to the
sister of Supreme Court Justice Amy Coney Barrett, and there
are numerous other threats taking place today. Of course, we
have seen threats, actual violence, and murders take place in
the past.
I call on my colleagues right now to call off the campaign
to impeach Federal judges for doing their jobs. I call on them
to demand that the Trump Administration comply with all
judicial orders while appealing whichever ones they want to
appeal, and to demand the return of people unlawfully taken to
El Salvador on that so-called plane full of gangbangers.
I especially call on them today to denounce all violent
threats, doxing, online vilification, and threats against our
judges. This is the Judiciary Committee of the U.S. House of
Representatives, and we should act like it.
I yield back, Mr. Chair.
Mr. Issa. I thank the gentleman.
I ask unanimous consent that the official statement by ICE
officials agreeing that there was not 100 percent accuracy in
Mr. Garcia's arrest; that, in fact, he was a prominent member
of MS-13, a different recognized terrorist group.
Without objection, so ordered.
Without objection, all other opening statements will be
included in the record.
Mr. Issa. I would now like to introduce our distinguished
panel, beginning with the Hon. Newt Gingrich.
Speaker Gingrich is the former colleague here in the House
and served from 1979-1999, including four years as the Speaker
of the House. Speaker Gingrich was instrumental in formulating
Contract with America and returning Republicans to a House
majority after 40 years of Democrat control.
Since leaving the Congress, he has remained incredibly
active and, in fact, in both policy, politics, and government,
he has led, having authored several dozen books and teaching
military officers and other national security professionals at
the National Defense University.
Welcome, Mr. Speaker.
Mr. Paul Larkin. Mr. Larkin is the John, Barbara, and
Victoria Rumpel Senior Legal Research Fellow at the Edwin Meese
III Center for Legal and Judicial Studies at The Heritage
Foundation.
Before joining Heritage, Mr. Larkin served in various
positions in the Department of Justice and at the EPA and as
Senate staff. He has spent a number of years in private
practice and is most prepared for today's hearing.
Welcome.
Ms. Cindy Romero. Ms. Romero is a resident of Aurora,
Colorado, who saw firsthand the effects of soft-on-crime and
open-border immigration policy. She was a resident of an
apartment complex targeted by Tren de Aragua, and eventually
was forced to move after her neighbors were reportedly
victimized and her car was struck by gunfire.
Last, Professor Kate Shaw. Ms. Shaw is a Professor of Law
at the University of Pennsylvania, Carey Law School. Professor
Shaw's research focuses on Executive power and the Supreme
Court, along with other issues.
I want to welcome all our witnesses and ask that you please
rise to take the pledge, to be sworn in.
Do you solemnly swear or affirm, under penalty of perjury,
that the testimony you are about to give will be the truth and
correct to the best of your knowledge, information, and belief,
so help you God?
[All witnesses respond in the affirmative.]
Please be seated.
Let the record show that all witnesses answered in the
affirmative.
We will begin with Mr. Larkin.
I would only ask--you have all seen this on C-SPAN--but to
the greatest extent possible, please wrap up by the end of five
minutes. You will have the indicator on your desk. Your entire
statements will be included in the record, as will additional
information, which I can't speak for everybody, but I know the
Speaker will revise and extend with considerable dedication.
Mr. Larkin? I think check to make sure you are on and pull
it a little closer perhaps.
STATEMENT OF PAUL J. LARKIN
Mr. Larkin. Is that better?
Mr. Issa. Much.
Mr. Larkin. The practice of issuing nationwide injunctions
outside the confines of a certified nationwide class action is
mistaken as a matter of law and unwise as a matter of policy.
Let's start with the law, and in there, let's also start
with the Constitution. The Legislative power is granted to
Congress. What is the primary product of that Legislative
power? It is what the Constitution defines as ``a law.'' The
term ``law'' also shows up in Article III, but it shows up in
Article III under the phrase ``arising under the Constitution,
the laws, or treaties.''
It is not the courts that are responsible for creating the
law. It's the courts who are responsible for interpreting it as
it applies. They can only do so in the context of a case or
controversy--two structural limitations on what the courts can
do. In other words, for the courts to be able to say what the
law is, they have to get on the playing field, and to do that,
you have to have a case or controversy.
Now, why does that matter? Well, the Constitution does
speak to this. As I've said, only the Congress can create a
law. Anytime a court enters a judgment that is tantamount to
being a law, the judge has gone too far. In the case of
nationwide injunctions, a judgment in favor of nonparties goes
too far.
You also have no statute in the Judicial Code, no provision
in the Constitution, and no settled history at common law that
allows a judge to enter these sorts of orders. That's important
because everything has to fit into one of those three.
Why? The Supreme Court has interpreted Article III in light
of how it was understood in 1789. So, those are the three
primary bases that you have to look to: The text of the
Constitution, statutes, and English common-law history.
In fact, there are two Supreme Court cases that directly
undermine the legitimacy of nationwide injunctions outside of
certified class actions.
First, Williams v. Zbaraz. In that case, the Court said
there is no case or controversy between two parties that are in
a case over an issue that has not been put into dispute by one
or the other of them. It logically follows that there is no
issue in dispute between someone who is a party and someone who
is a stranger to the entire litigation.
Similarly, at the back end of the process is the case of
United States v. Mendoza, where the Supreme Court held that the
Federal Government is not subject to the ``win or go home''
rule that you see in the NCAA post-season tournament. The
government isn't stuck with whatever loss it has the first time
it litigates a case to a final judgment and loses.
The doctrines of the law of issue preclusion or collateral
estoppel, the new and old terms, do not apply to the Federal
Government. Why? The Supreme Court, in the unanimous decision
of Mendoza said they do not. Why? Because there are a variety
of good policy reasons why it shouldn't.
With that, then, let me turn to the policy reasons that
show this practice is unwise. There are several. OK?
First, mandatory injunctions prevent the percolation of
issues in the lower court that the U.S. Supreme Court in
Mendoza said is necessary for that court to be able best to
resolve whatever legal dispute there is. It allows the court to
be sure that all the issues, all the subissues, all the
arguments pro and con, and all the benefits and costs of
whatever rule, are fully aired.
Second, it encourages judge-shopping. All you have to do is
find one favorable judge and you can stop an entire
administration in its track. As you know, it has happened to
every administration over the course of this 21st century--from
the George W. Bush administration to the present. Each party
has been subject to this practice.
Third, it can result in conflicting nationwide judgments.
You can wind up with injunctions going one way and the other
way because a court in Maine and a court in Alaska can come out
the opposite way in a case.
Finally, they are going to weaken the doctrine of stare
decisis. Because as the Supreme Court comes to realize, if it
has to decide issues at a preliminary stage of the case without
the guidance of the lower courts, they're going to have to
overrule some of their decisions.
Let me end where I began. This practice is mistaken as a
matter of law and unwise as a matter of policy.
Thank you.
[The prepared statement of Mr. Larkin follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. Thank you.
Speaker Gingrich?
STATEMENT OF THE FORMER SPEAKER NEWT GINGRICH
Speaker Gingrich. Thank you, Chairs Issa and Roy, Ranking
Members Johnson and Scanlon, and all the Members of the
Subcommittees, for allowing me to testify.
There is clearly a potential Constitutional crisis
involving the Judicial Branch's effort to fully override the
Legislative and Executive Branches. Fifteen District judges
effectively seized control of various Executive Branch duties
in the first six weeks of the current presidency through
nationwide injunctions. This is potentially a judicial coup
d'etat. It clearly violates the Constitution and more than 200
years of American history.
To set the stage for this hearing, let me mention 12 former
Federal judges appointed by President John Adams: Richard
Bassett, Egbert Benson, Benjamin Bourne, William Griffith,
Samuel Hitchcock, Phillip Barton Kay, Jeremiah Smith, George
Keith Taylor, Oliver Wolcott Jr., Williams McClung, Charles
Magill, and Williams Tilghman.
President Adams appointed these Federal judges on his way
out of office to hamstring the incoming President Thomas
Jefferson's agenda.
President Jefferson concluded that impeaching the judges
would take too much time. He and the Congress simply abolished
the courts in which they served via the Judiciary Act of 1802.
This is a Constitutional balance of power. The Legislative
and Executive Branches can reshape the Judiciary Branch. It is
a useful reminder in considering the current situation.
Unelected lower-court judges have been steadily grabbing
power for years. It was such an obvious threat that, in 2012,
Vince Haley and I wrote, ``Bringing the Court Back under the
Constitution.'' It is an historic study which I am submitting
for the record.
According to Harvard Law Review, there were 96 nationwide
injunctions ordered by District Courts from 2001-2023. Two-
thirds of them, 64, were issued during the President's time in
office. Furthermore, 92 percent of the injunctions against
President Trump were issued by judges appointed by Democratic
Presidents.
Since January 20, 2025, lower courts have imposed 15
nationwide injunctions against the current Trump
Administration. This is compared to six during George W. Bush's
eight years, 12 during Barack Obama's eight years, and 14
during Joe Biden's four-year term.
The notion that unelected lawyers can micromanage the
Executive Branch--and override a Commander-in-Chief who
received 77.3 million votes--should trouble every American.
This is particularly troubling for issues of national
defense and public safety. Around 500 B.C., Sun Tzu asserted in
``The Art of War'' that, quote, ``speed is the essence of
war.'' How can the United States have speed in national
security issues if opponents can judge-shop to find someone
ambitious or arrogant enough to block, repudiate, or delay the
President's decisions?
There are 677 authorized District judgeships. How many
think they can override duly elected Presidents?
This summary statement has four propositions:
First, the courts have often been challenged. President
Jefferson wrote, quote, ``judges as the ultimate arbiters of
all Constitutional questions . . . would place us under the
despotism of an oligarchy.''
President Andrew Jackson was in constant fights with the
Supreme Court. President Abraham Lincoln made the Dred Scott
Decision expanding slavery a centerpiece of his 1858 senatorial
campaign. In this first inaugural, President Lincoln warned
that, if the Supreme Court held supreme rule, quote, ``the
people will have ceased to be their own rulers, having to that
extent practically resigned their Government into the hands of
that eminent tribunal.''
Second, as the Judiciary Act of 1802 proves, the
Legislative and Executive Branches can constitutionally defend
their rights--and they have in the past. It is historically and
constitutionally wrong to think the Legislative and Executive
Branches are helpless against judiciary actions.
Third, the Supreme Court could intervene to eliminate this
attack on the Executive Branch by District judges. Chief
Justice Roberts could end the growing confrontation by
establishing a rule that any nationwide injunction issued by a
District Court against the Executive Branch would be suspended
in implementation and immediately taken up by the Supreme
Court. This would remedy the lengthy appeals process.
Fourth, the Congress and the President can take decisive
steps toward bringing the judiciary back into a Constitutional
framework.
This hearing is a good first step. There could be a series
of hearings on the Constitutional and historic framework which
ensures no single branch of government can acquire dictatorial
powers--specifically, the judiciary in this Committee.
These hearings would educate the Members and the American
people. They would create a national understanding of the need
to defend the Constitution against overreaching branches of
government.
I would also recommend that the Congressmen, that the
Congress pass Chair Issa's No Rogue Rulings Act, which is a
good signal to the courts that they have gone too far.
Thank you and I look forward to your questions.
[The prepared statement of the Former Speaker Gingrich
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. Thank you. Ms. Romero.
STATEMENT OF CINDY ROMERO
Ms. Romero. My name is Cindy Romero. I am a wife, a mother
of five, a grandmother of three, a part-time worker and
student, and a former resident of Aurora, Colorado. I am one of
the many victims across the Nation of the violent transnational
gang, Tren de Aragua, and a former lifelong Democrat.
My husband and I resided at the Edge of Lowry apartment for
four years and while the first few years were a pleasant
experience, we soon began observing changes in our once quiet
neighborhood. In the Spring and Summer 2024, we noticed
shuttles dropping off large numbers of illegal immigrants onto
the property. Throughout the year, we watched in horror as a
few apartments full of migrant families quickly evolved into
large groups of gun-toting, military-aged males threatening the
remaining leaseholders into abandoning their properties, then
kicking in the doors to the many vacated units to make room for
other gang members.
Open air drug use, drug dealers, and seemingly underage
prostitutes filled the common areas of the buildings. Large
parties in the parking lots lasted well into the morning.
Stolen and abandoned vehicles blocked residents and cars.
Property damage was evident. Random shootouts soon began to be
expected on our block every night. These criminals brought in
unlicensed electricians to run electricity to abandoned
apartments and locksmiths to change the locks on the outside of
the buildings to deny access to the owners, emergency services,
and even the lease holders of the building.
Despite several calls for help to the Aurora Police
Department, they often provided conflicting excuses for not
responding. For example, one officer told me that he wanted to
respond, but was instructed not to. Where they were often
responding to other rampant crimes across the city or had to
respond to any crime in my neighborhood was no less than three
or four officers in an armored vehicle. One officer suggested I
go to the media because he felt sorry for me. He
unintentionally saved my life.
Although we were low income and barely paying our bills, we
realized the need to invest in home protection and we purchased
three additional handguns and six cameras in the event that we
had to defend ourselves. During June and July, the gang members
slowly began to torture us through intimidation, loud
arguments, physical conflicts outside our door every night,
vandalizing, taking over vacant apartments on our floor, and
after several confrontations with the gang members, several
calls, and submitting video evidence to the Aurora Police
Department with no results, we gave up trying to stop them from
squatting on the property.
We spent the next few weeks looking for another rental and
we were unable to locate another low-income property rental
that didn't have the same exact issues that we were facing
every day. We reached out to local mainstream media, several
NGO's in our community, begging for help, only to be turned
away because we were just ordinary taxpayers. There were no
government programs to grant citizens temporary protected
status from imported gangs in our own country.
On August 18th at 11:21 p.m., 10 minutes after my now viral
video was recorded, a young man who I called my friend was
mortally wounded outside my apartment during a firestorm of
bullets causing thousands of dollars in damages to cars and
surrounding properties by six gunmen later identified as Tren
de Aragua. Thanks to the heroism of one local Aurora City
Councilwoman, named Danielle Jurinsky, and some of her friends,
including John Fabbricatore, they have been sounding the alarm
over TdA for months while being called a liar and ignored by
their Governor. I was finally able to escape these horrible
conditions due to their help.
In the media frenzy following the video release, many TdA
members have now been identified and arrested all over the
country. Danielle Jurinsky has never received an apology or
acknowledgment for exposing the threat.
When I heard that Mr. Trump had taken an interest in Aurora
and our struggles with Tren de Aragua, I was relieved. I was
hopeful that a change was getting ready to happen and it was on
the way, that it was impending. As President, he did not
disappoint me. I feel safer knowing that our country becomes
more secure daily. I continue to think that the lives of my
family and many others in my community were put at risk by the
Biden Administration's failed sanctuary policies at the
Southern border. Sanctuary status puts citizens at risk, and we
must stop pushing ideology over commonsense. Thank you.
[The prepared statement of Ms. Romero follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. Thank you, would you show the video before we
move on, please.
[Video played.]
Mr. Issa. Thank you. Professor Shaw.
STATEMENT OF KATE SHAW
Ms. Shaw. Chair Issa, Ranking Member Johnson, Chair Roy,
Ranking Member Scanlon, Chair Jordan, Ranking Member Raskin,
and the distinguished Members of the Subcommittees, thank you
for the invitation to testify today. My name is Kate Shaw. I am
a Professor of Law at the University of Pennsylvania, Carey Law
School.
I understand that the purpose of today's hearing is to
discuss recent judicial rulings against the Trump
Administration and to evaluate some of the responses to those
rulings being considered by this body, in particular,
resolutions of impeachment against Federal judges, and a bill
that would limit the power of District Courts to issue
nationwide injunctions.
Let me say at the outset that in my view, the premise of
this hearing that courts have overreached or transcended the
limits of their authority and that this overreach calls for
some response is badly mistaken. It is true as has already been
noted this morning that the Trump Administration has been on
the losing streak in the Federal courts. A recent analysis by
Professor Steve Vladeck found that of the 151 cases brought
against the Trump Administration since January 20th, 46 have
resulted in some sort of preliminary relief. That relief has
been ordered by judges across the country and by judges
appointed by Presidents of both parties.
This broad consensus makes clear that despite the claims of
some critics, these rulings do not grow out of substantive
disagreement with President Trump's policy choices. The
lawsuits have been brought and have overwhelmingly succeeded
because many of the challenged actions have been taken without
regard for and often with outright contempt for both statutes
and the Constitution. By that, I mean both the constitutionally
required process for lawmaking and the rights the Constitution
commands the government to respect.
First, as to process. Article 1's lawmaking provisions are
pretty straight forward. Laws must be passed by both houses of
Congress and signed by the President or repassed over a veto.
Laws governing funding, that is appropriations, are laws like
any other. As for Article 2, it has long been settled that when
the President acts, it needs to be pursuant to some authority
Congress has granted or within one of the narrow areas in which
Article 2 gives the President the authority to act without
Congressional authorization. That is the heart of Justice
Jackson's concurring opinion in Youngstown, still the most
influential judicial account of Presidential power.
What all that means is that if President Trump wished to
reshape or even eliminate many Federal agencies or dramatically
reduce government expenditures on foreign aid or eliminate job
protections for Federal workers or roll back Federal privacy
protections, working with his many allies on Congress,
including those on this Committee, was the constitutionally
permissible way to do that. Instead, he has ignored the laws
passed by Congress and the Constitutional rules that give
Congress primacy in lawmaking. Beyond those largely procedural
failures, many of the administration's initiatives have flouted
core Constitutional principles, the freedom of speech and
expression, due process, equal justice, and equal protection
under law.
President Trump has used the power of government to exact
retribution against individuals and entities who have engaged
in constitutionally protected activities and he has brought the
full weight of the State down on vulnerable groups the
Constitution protects. In short, this administration has been
marked by a breath-taking degree of Presidential unilateralism
that is flatly inconsistent with the Constitution and with
numerous statutes passed by Congress. That is true in general
terms, and it is true as to specific actions. That is why
President Trump has fared so badly in court.
To be sure, some of these rulings will be, some already
have been, reversed on appeal. Reasonable minds can disagree
about some of these questions, but rather than focus on the
Appellate process or uncorrecting the legal defects, this
administration and many of its supporters have suggested that
the problem is District judges and rather than use its
Constitutional authority to enact laws that would give the
President the power to do some of the things he wishes to do,
this body has devoted itself to two things: (1) Stripping the
power of Federal courts to issue injunctions, and (2) pursuing
impeachments of Federal judges who have merely discharged their
obligation to uphold the Constitution.
In my mind, the District Court judges who have ruled
against the administration have not come close to engaging in
high crimes and misdemeanors, the Constitutional standard for
impeachment. Although Congress has considerable power to
regulate the Federal courts, including potentially restricting
courts' ability to issue nationwide relief, the current moment
calls for caution in pursuing change that would curtail courts'
ability to meaningfully review and remedy unlawful Executive
action.
It has been suggested already this morning that rulings
against the administration for the will of the people, but
democracy does not begin and end with elections for Presidents.
It includes elections for membership in Congress, the branch
closest to the people and the entity whose authority many of
these decisions protect. Democracy also means more than just
elections. It includes values like the ability to engage in
speech and expression, to associate, to petition, meaningful
democracy also requires genuine political equality, procedural
fairness, and mechanisms for the protection of minorities. In
our system, courts can be a key guarantor of those aspects of
democracy. They are doing their part to preserve both law and
democracy. Other branches of government should join them.
Thank you again for the invitation and I look forward to
your questions.
[The prepared statement of Ms. Shaw follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. Thank you. We will now go out of order to give
Mr. McClintock the first round of questioning.
Mr. McClintock. Thank you, Mr. Chair. The Ranking Member
offers us an example of an outstanding law-abiding Marylander
in the case of Abrego Garcia. As Mr. Issa said, ``Mr. Garcia
has been identified as a member of MS-13,'' the most violent
criminal gang on the planet and there is one report just
published that he is implicated in human trafficking in this
country. Not exactly Rotary Club material. Shouldn't the
circumstances of his case be examined in an individual action
before a District Court and not dumped into a far-reaching
edict arising from another case that has very different
circumstances, Mr. Larkin? What is your opinion of that? Your
microphone.
Mr. Larkin. How about now? My mistake, sorry. My
understanding is that these actions that have been challenged
have been challenged under the Administrative Procedure Act,
not as actions seeking Federal habeas corpus relief. Federal
habeas corpus is the traditional remedy that someone uses when
they are claiming the government has unjustly seized them.
There is even the provision for next friend.
Mr. McClintock. That option exists in law and I think that
this is the appropriate option, is it not?
Mr. Larkin. The Administrative Procedure Act is not.
Mr. McClintock. Yes.
Mr. Larkin. For example, you can't use Section 1983 to
challenge the legitimacy of your conviction. You have to use
the Habeas Corpus Act.
Mr. McClintock. Right.
Mr. Larkin. So, while--
Mr. McClintock. These are individual cases with very
different individual circumstances and ought to be--
Mr. Larkin. That is right. I mean what you have,
particularly John Doe, Nos. 1, 2, 3, whatever, each case has to
be examined separately, but it should be in Habeas Corpus, not
the Administrative Procedure Act.
Mr. McClintock. Mr. Gingrich, I am told that 92 percent of
the judges who have issued blanket injunctions against the
administration have been appointed by Democrats. That at least
suggests a rather partisan tilt to all this and it is not being
done even handedly. What is your view of that? Doesn't that
undermine public confidence in our courts?
Speaker Gingrich. Well, I think if you look at the recent
reports from various polling firms, clearly a majority of
Americans believe that no single District judge should be
allowed to issue a nationwide injunction, and I think that when
you look--my judgment is as a historian. This is clearly a
judicial coup d'etat. You don't have these many different
judges issuing these many different nationwide injunctions all
of them coming from the same political ideological background
and just assume it is all random efforts of justice. This is a
clear effort to stop the scale of change that President Trump
represents. I agree. A lot of this stuff can be fought out--
some of it should be fought out in Congress, but it shouldn't
be micromanaging the Executive Branch on national security
issues by random, single judges who have no standing. They have
no particular knowledge. They weren't in the room. They don't
know what the consequences of what they are doing are, and they
put both Americans and the Nation at risk when they intervene
to become basically alternative presidents. We now have
potentially 677 alternative presidents, none of whom won an
election.
Mr. McClintock. We all believe in due process. Every
injured party should have access to the courts, and they do.
The question is whether a single District Court can go beyond
the case before them and apply the same decision to others
whose cases are not before the court in jurisdictions that go
far beyond their own.
Mr. Gingrich, you have pointed out that there are several
ways to address this. One is Congressional action. The other is
the Supreme Court putting its own house in order. In fact, the
Alito dissent recently suggested there are at least four of the
justices who very much want to do this. It seems to me that it
is the cleanest and most surgical route, assuring that the rule
is done from within the court and not imposed by legislation.
What are your views on what the Supreme Court--you already
mentioned what we should do.
Speaker Gingrich. Look, I think the Chief Justice would
achieve far more judicial independence if he cleaned up his own
judiciary, rather than lecturing the rest of us. There are ways
he could intervene as I mentioned in my testimony. They could
establish a rule that any nationwide injunction issued by a
District Court will be held in abeyance and will be immediately
appealed to the Supreme Court. Lincoln makes his case. It
buries a head-on fight which is ironic because Chief Justice
Taney, as Attorney General for Jackson, had ruled against the
courts and it said as Attorney General, the courts cannot order
the President. Now, he then becomes Chief Justice and extends
slavery, potentially, to the whole country, and is lectured by
Lincoln in his first inaugural as Taney sits there and Lincoln
is essentially saying this was the law of the case, not the
land and we will not enforce it, and they don't. They never
enforced Dred Scott. So, I think Chief Justice should think
seriously about intervening to preempt any requirement for
something such as Chair Isis' bill which I support strongly,
but there would be no reason to have it if the Chief Justice
did his job.
Mr. Issa. I thank the gentleman. I now ask unanimous
consent that the previously played video be placed into the
record. Additionally, I ask unanimous consent that the Wall
Street Journal article entitled, ``Why Judge Boasberg's
Deportation Order Is Legally Invalid,'' be placed in the record
and that the Harvard Law Review article entitled. ``District
Court Reforms: Nationwide Injunctions,'' be placed in the
record. Without objection, so ordered.
We now go to the Ranking Member, Mr. Johnson, for five
minutes.
Mr. Johnson. Thank you, Mr. Chair. I am reminded of the
quote that goes something like, ``When the law is not on your
side, argue the facts. When the facts are not on your side,
argue the law. When neither is on your side, then pound the
table.'' Well, Trump doesn't have the facts or the law on his
side and so with this exercise today, he is vicariously
pounding the table.
Professor Shaw, President Trump has targeted and attacked
some very wealthy and powerful entities to send a message to
the less powerful. Trump has attacked Columbia University. He
has attacked the white shoe/silk stocking law firms like Paul,
Weiss and Skadden, Arps. These powerful, wealthy entities can
afford to sue to protect their interests and our rule of law.
Instead, they chose to lay down and get steamrolled by the
bully.
Professor Shaw, how does laying down and getting
steamrolled compromise the rule of law and undermine our
democracy?
Ms. Shaw. Let me just say that there have been targeted
entities, right, including a number of law firms that have, in
fact, not laid down, that are taking a strong position of
resistance to what they believe to be the unlawful components
of some of the targeting orders. So, law firms including Wilmer
Hale, Jenner & Block, Perkins Coie have made their responses
and their views of the impermissibility of the targeting of law
firms for no reason other than their decision to take on
disfavored representation and to advance legal arguments that
the President has personally objected to and sometimes been on
the receiving end of. So, I do think that calling out clearly
unlawful Executive action is critically important particularly
for entities with resources and stature and I think that it
encourages the targeting in unlawful ways for institutions to
refuse to take a stand.
The orders targeting law firms are clearly unlawful. Some
judges have already found, and I think that the judges that
rule on those orders will continue to find that and the last
thing I will say is I think that law firms that have decided
not to fight and that are complying haven't bought themselves
any security necessarily. I am not sure there is any guarantee
that they won't be subject to further targeting simply because
they have acquiesced in sometimes coercive terms in the first
instance.
Mr. Johnson. Yes, when the bully knows that he can bully
you, he is going to continue bullying you until you stand up
and so I am glad that these other law firms and other academic
institutions have and are standing up. What would happen to
access justice for the least of these if these very wealthy and
powerful entities that are being targeted today, if each and
every one of them laid down and just allowed themselves to be
steamrolled?
Ms. Shaw. I think there could be a chilling effect on the
willingness of law firms to take on disfavored representation.
The targeting has not been limited to law firms either, right?
There has been an effort to suggest that sanctions be sought by
the Department of Justice against nonprofits and other legal
actors that have engaged in litigation against the
administration. So, it does seem quite clearly designed to
reduce the amount of courageous litigation against and
challenges to Executive action. So that the costs, the
potential costs for the rule of law are incalculable.
Mr. Johnson. Yes, because it is based on the adversarial
system and if you wipe out the adversaries, then you wipe out
the adversarial system or the adversary system.
Ms. Shaw. It is right that an attack on--look, lawyers are
not always popular, right? So, attacking lawyers is not
something that everyone is always going to object to, but
judges need lawyers to present arguments to them and our system
of justice, and the rule of law requires lawyers to take on
representations, including potentially unpopular
representations. I do not think these attacks on white shoe law
firms should be understood as just about white shoe law firms.
I do think they are attacked on the very idea of access to
justice and to the rule of law.
Mr. Johnson. When you attack, in addition to the lawyers,
you attack the judges and claim that they need to be impeached,
not for committing high crimes and misdemeanors, but for simply
ruling in a way that is against the bully. What impact does
that have on our justice system and our democracy?
Ms. Shaw. I worry that the intent there is the same, to
basically have a chilling effect on the willingness of judges
to rule against the administration in the same way the--part of
the intent of these Executive Orders is to create a climate of
fear and intimidation, and to disincentivize taking on
representations, including against the Federal Government. So,
the intended effect is likely the same.
Mr. Johnson. Thank you. I yield back.
Mr. Issa. The gentleman yields back. We now go to the
gentleman from Kentucky, Mr. Massie.
Mr. Massie. Thank you, Mr. Chair. This hearing reminds me
of a breakfast I had with Antonin Scalia. About a dozen of us
Congressmen invited him to breakfast, and this was about a
decade ago when Obama was the President and John Boehner was
the Speaker. My colleagues appealed to Scalia and said, ``What
can you do? You need to get involved here.'' The courts need to
get involved. Obama is running rough shod over Congress. Scalia
refused to accept that premise. He said,
No. This is not my job to referee fights between your two
branches. My job is as a jurist to decide if somebody has been
harmed and what the remedy is and occasionally, we interpret
the law and the Constitution and the constitutionality of it.
He said, by the way,
You are the most powerful branch of government. I don't know
what you are complaining about. All the tools you need to
restore the balance are in the Constitution.
One of my colleagues protested that impeachment was just too
hard to pull off, given the threshold in the Senate and the
political backlash. Scalia, he shook his head, and said,
I am not talking about impeachment. You all have the power of
the purse. You are funding everything you complain about that
Obama is doing. Just quit funding it.
It was a pretty clear message. Now, that was about tension
between Congress and the Executive Branch and our hearing today
is about tension between the judicial system and the Executive
Branch, but I think it is still the case that what Scalia said
is true.
Let me give you an example of something I am going to
predict is going to happen in the courts soon that I am not
going to have much sympathy for the President. So, the
President recently had a press conference and said he is going
to wind down the Department of Education. Oh, great. That is my
bill. I have got a one-sentence bill that eliminates the
Department of Education. I should be very excited about this.
The problem is much of the activity that he says he will
undertake he just signed into law the funding of it a week
before. We did a Continuing Resolution that fully funds every
single penny of the Department of Education, and the President
signed it. This is as Professor Shaw pointed out that
appropriations bills are laws, too. They require both chambers
and then the President to sign it. It is an appropriation bill.
It is a law. It is in the law and a week later, he announces
that he doesn't like some of the law, and so he is going to do
things differently. So, that is the problem that I have.
Now, I do think it is a good hearing, and this is a great
question. I tend to think that probably there are cases where
they shouldn't have nationwide injunctions. This is a double-
edged sword. Under the Biden Administration, he did
unconstitutional and unlawful things during COVID that were
stopped with nationwide injunctions. For instance, he had a
rent moratorium that was stopped until the Supreme Court
eventually basically said it was illegal. He refused to grant
religious exemptions to the vaccines. In the military, there
was a nationwide injunction. Actually, one of the attorneys in
that is a constituent of mine, Chris Weist, who stopped all the
vaccine mandates at that point in the Air Force. That was a
nationwide injunction. Then, his OSHA vaccine mandate was
stopped with the nationwide injunction. I am torn on this.
Maybe if we just don't have nationwide injunctions, people in
certain districts can live under tyranny, or the perception of
it, and if you are in a different Judicial district or Circuit,
you get some remedy from the tyranny. Maybe it works out better
that way. Maybe we should have tried each of these cases in
each of these courts and found out the answer.
Mr. Speaker, former Speaker Newt Gingrich, what do you have
to say about this since you were Speaker and led this
appropriations process? Do you think the President can unwind
the Department of Education a week after he signed the bill
that funded it?
Speaker Gingrich. Well, as you know, when I was Speaker, we
balanced the budget, something you believe in, for four
straight years, the only time in the last century. I can talk
with some authority about this. I suspect there will be a real
fight at the Supreme Court level, although whether or not the
President has impoundment authority which was taken away during
the collapse of the Nixon Presidency that had existed before
that. That will be a legal fight.
Your point about injunctions is semi-right, that is, the
court should be able to issue the injunction. My point about
the Chief Justice is if that particular single-District judge
says this is a valid injunction, if it immediately went to the
Supreme Court, and then the Supreme Court agrees that it was a
valid injunction, then you can have a nationwide injunction. I
agree with Lincoln, who said, ``Even though the court had
decided seven to two that slavery could be extended
nationally,'' he refused to accept the legitimacy of that
decision because it wasn't unanimous.
Now, for the precedent, it is pretty clear, your instinct
is right, there are times you need nationwide action. My only
point is: The District judge says that. The following morning,
it should be in the Supreme Court and the Supreme Court should
have to render judgment. If they agree, then you have a
nationwide injunction. If they say no, you are in error, then
there is no nationwide injunction.
Mr. Massie. It makes sense to me. I yield back.
Mr. Issa. I thank the gentleman. We now go to the Ranking
Member of the Full Committee, Mr. Raskin for five minutes.
Mr. Raskin. Thank you, Chair. Respect for the separation of
powers is intertwined with respect for due process of the
citizens. The gentleman from California essentially invited us
to accept the deportation of someone from America without any
due process at all which the administration has admitted was a
mistake, because now he is hypothetizing that person belongs to
a different criminal gang and engaged in other different
hypothetical crimes and obviously, the reason why we have due
process is because we can't try these cases in the Judiciary
Committee's House of Representatives, but just reading from a
court document here, Plaintiff Abrego Garcia is not a member
of, nor has any affiliation with Tren de Aragua, MS-13, or any
other criminal or street gang. Although he has been accused of
general gang affiliation, the U.S. Government has never
produced any evidence to support this unfounded accusation. He
has no criminal history. He has never been charged or convicted
of any criminal charges in the United States. Who knows? That
is why we have due process. It shouldn't just be father of
four, cable TV. We are talking about people's lives here.
Professor Shaw, what does due process actually mean? Should
Judge Boasberg be impeached for saying that the Alien Enemy Act
of 1798 doesn't apply because we are not at war, and we have
not suffered an invasion by a foreign power?
Ms. Shaw. The core components of due process are
straightforward right? It involves some notice and an
opportunity to be heard, right, to make some sort of case in
your own defense prior to deprivation of life, liberty, or
property. So, that is in the Constitution. Due process applies
to every person, not just a citizen. Due process doesn't look
identical. If we are talking about due process in the context
of potential deportation or due process in the context of a
change to your Social Security benefits, right? Due process is
deeply context dependent, and all Judge Boasberg has ruled as a
preliminary matter in this case is that some process has to be
afforded before this potentially irreversible act occurs. Judge
Boasberg has not ordered anyone released in the United States,
has not objected to the detention of the covered individuals.
It has simply said provide reasons and an opportunity to
respond and--
Mr. Raskin. Follow the law, right?
Ms. Shaw. Follow the law. It seems from public reporting as
though there is real reason to believe that errors were made.
Mr. Raskin. My colleagues are calling for the impeachment
of Judge Boasberg. Has there ever been a Federal District
judge, a Federal Appeals board judge, or a U.S. Supreme Court
justice impeached because someone disagrees with the content of
their ruling?
Ms. Shaw. We have no tradition of impeaching judges based
on the contents of their ruling.
Mr. Raskin. We impeach them for bribery or corruption or
habitual drunkenness on the bench.
Speaker Gingrich, by the way, do you agree with the
Republicans and with Donald Trump and Elon Musk calling for the
impeachment of these judges? That is a yes or no?
Speaker Gingrich. I actually agree with Jefferson that
impeachment is a cumbersome and difficult process, virtually
impossible to achieve which is why--
Mr. Raskin. Do you oppose the impeachment?
Speaker Gingrich. Which is why Jefferson abolished 14
courts because you abolish--
Mr. Roy. Professor Shaw, forgive me, you remember the five-
minute rule. I have got more time. It is a yes or no question
and I didn't get an answer from you.
Chief Justice Roberts has said, ``That the correct response
to disagreement with the District Court decision is to
appeal.'' I just heard Speaker Gingrich call this a judicial
coup d'etat and he said the Chief Justice should stop lecturing
the rest of us. Who is right? Is it Newt Gingrich or is it
Chief Justice Roberts here?
Ms. Shaw. In this instance, Chief Justice Roberts and we
have no tradition of impeaching judges. Appeal is the remedy
for disagreeing with a District judge or if it is a statutory
ruling, that is wrong, Congress can respond, right? If there is
a bias or misconduct issue, there are disciplinary processes
and complaints that can be brought against judges. You can seek
to recuse or a remand to a different judge. There are many
remedies our system affords if there is some sort of problem
with the judge presiding over a case. Impeachment has never
been in that tool kit.
Mr. Raskin. Do you believe that there has been a conspiracy
for a coup d'etat among 34 U.S. Federal District Court judges
appointed by Presidents Reagan, Bush, Clinton, Bush, Obama, and
Trump?
Ms. Shaw. No. As you said, these judges are simply doing
their jobs.
Mr. Raskin. The only comparable case I can think of here is
the Impeach Earl Warren movement after Brown v. Board, where
there were racist segregationists who wanted to impeach Earl
Warren because they did disagree with the content of his
opinion. What happened with that? Do you think that he should
have been impeached?
Ms. Shaw. As far as I know, there were no impeachment
resolutions introduced at that time. There was rhetoric. There
was a critique. To be clear, criticizing judges is absolutely
healthy in a democracy. I am not suggesting otherwise, but this
is already a pretty serious escalation to have seen these
resolutions introduced. I really don't think they should go any
further.
Mr. Raskin. Thank you. I yield back, Mr. Chair.
Mr. Issa. Thank you. We now go to the gentleman from
Wisconsin, Mr. Fitzgerald, and I would like to ask if I could
have 15 seconds of his time.
Mr. Fitzgerald. I yield back to the Chair.
Mr. Issa. Speaker Gingrich, I just have one short question,
and it is a yes or no unlike the other one. In your two decades
as a Member of Congress, did you seek Members of Congress to
put bills in of any sort, because they were popular and felt
strongly within their district, whether or not they were moving
anywhere?
Speaker Gingrich. Of course.
Mr. Issa. That would include things like impeachment,
whether they were likely to succeed or not?
Speaker Gingrich. They are political symbols, not
legislative symbols.
Speaker Gingrich. Very good. I thank you. I thank the
gentleman from Wisconsin.
Mr. Fitzgerald. Reclaiming my time. Mr. Larkin, nationwide
injunctions, they are a relatively new phenomenon, right? Isn't
that correct?
Mr. Larkin. Yes.
Mr. Fitzgerald. Yes, it is fair to say nationwide
injunctions became more commonplace in the sixties and
seventies, and that is because Congress began authorizing
general rulemaking by Federal agencies, such as passage of
Clean Air Act or the Clean Water Act.
Mr. Larkin. There are several factors that led to the late
development of it. One is a change in philosophy of what it
meant to say that something was unconstitutional. For example,
Professor Samuel Bray explained this at length in his article,
that traditionally when a court said something was
unconstitutional, it meant that government could not enforce it
against you.
Over time, courts gradually began to say no, that means you
can't force it against anybody. The problem is that overlooks
the role that a District Court judge has both horizontally and
vertically within the Federal system.
No one District Court judge can bind the Appellate Court or
the Supreme Court. No one District Court judge in Maine can
bind a District Court judge or any judge in Alaska.
So, unfortunately, this practice developed, and we didn't
have anybody stepping back and saying no, wait a minute, are
there constitutional, statutory, etc., limitations on it. It
has actually hurt both parties, because each party has suffered
through this process.
Mr. Fitzgerald. Thank you.
Speaker Gingrich, as you mentioned in your testimony,
between 2001-2023, there were 96 nationwide injunctions issued,
of which 64 were granted against or granted against President
Trump.
Why do you think the courts have issued nationwide
injunctions against President Trump with such frequency? It is
a question we are all pondering right now.
Speaker Gingrich. One of my favorite books on the law is
the Bramble Bush, which is the 1929 introductory lectures at
Columbia Law School, and which draws a distinction between as
it is practiced and the law as it is written.
So, let's just, at a commonsense level, will you be honest.
Donald Trump represents a profound, fundamental shaking up of a
very deeply resistant establishment, which can be traced back
to Franklin Roosevelt in 1933. You take on a system that is
almost 100 years old, the system fights back.
The last great bastion of power held by the Left is
District Court judges and their allies on the Supreme Court.
They are behaving, as a historian, this is a perfectly natural
thing. They are doing everything they can to stop the
President, who was elected by millions of Americans. They were
elected by no one.
Under our system, they have a certain amount of power. Not
nearly as much as the modern legal system believes, because the
1958 decision by the Supreme Court, which said we are supreme,
is baloney. The Supreme Court is supreme in Article 3. It is
not supreme over the whole Constitution.
We are now going to face a genuinely important, historic
conversation as a country about whether or not unelected judges
on a randomized basis, who happen to be 92 percent Democrat,
have the power to stop the elected Commander-in-Chief on item
after item after item. My guess is the American people will say
to the Legislative Branch you got to be kidding me.
If Justice Roberts wants to cut this off, he should act
now. Because this is going to get worse, not better.
Mr. Fitzgerald. Thank you.
Mr. Larkin, I will just finish up with a quick question
about forum shopping. It is something that has clearly been
happening, and we are used to it at the State level within the
judiciary, as well as at the Federal level. I was wondering if
you had a comment about that.
Mr. Larkin. Sure. The problem attempts to be avoided by
having random assignments. Unfortunately, there are sometimes
where there is only a limited number of judges in a particular
district. As the result, if there is only one, that is who you
are going to get. If there are two, you have a 50 percent
chance.
People wind up doing this, not surprisingly, because they
think Judge A is going to give them a better likelihood of
success. Now, that is bad enough when what you are talking
about is a damages action, because that damages action is going
to result in a check, perhaps, that goes just to one party.
It is different when you are talking about having one judge
in any one town enjoying the entirety of the Federal Government
across the Nation. That is a much more severe problem, and that
is why this is a reasonable effort to cabin that. Picking
favorable judges is the reason why.
Mr. Fitzgerald. Thank you, I yield back.
Mr. Issa. Thank the gentleman. We now recognize the
gentlelady from California, Ms. Lofgren, for five minutes.
Ms. Lofgren. Thank you, Mr. Chair.
It seems ironic that today's hearing is titled ``Judicial
Overreach and Constitutional Limits on the Federal Courts,''
because if we really care about constitutional limits, we
should start by confronting the recent attacks on judicial
independence, attacks that themselves defy the Constitution.
In the past few months, we have seen Elon Musk, President
Trump, and even Members of Congress call for the impeachment of
judges, not for misconduct, but because they don't like their
rulings. That is not how a constitutional democracy works.
It is true that Members of the Judiciary were not elected
by the Electoral College. That is beside the point. As my
colleague Mr. Massie pointed out, when Congress enacts a law,
signed into law by the President, the President can overturn
that law with a statement, which is essentially what an
Executive Order is.
That judges are making that finding is the role that they
have been assigned.
Now, Professor Shaw, the recent Federal Court decisions,
which by the way, have been made by judges appointed by both
political parties, have led to calls for the President's
supporters to impeach these judges.
Now, only 15 Federal judges have been impeached by the
House since 1804, and only eight have been removed by the
Senate. I was involved in one of them, in a very severe
misconduct case. What is the standard in the Constitution for
impeachment for a Federal judge?
Ms. Shaw. Well, it has been understood that the
impeachment, the constitutional language of treason, bribery,
and other high crimes and misdemeanors, applies with full force
to Federal judges, although it is actually not explicit in the
Constitution. There are some scholars who have raised some
questions about it.
Our practice is consistent that this is the same standard
that applies to other officers. It applies to judges. In terms
of how our practice has implemented that standard, it has been
exactly as you said.
In the 15 traditional impeachments that have resulted in
eight convictions and removals, they have been for serious
misconduct, things like habitual drunkenness, sexual assault,
corruption, bribery, or those types of offenses.
The one impeachment of a Supreme Court justice, Justice
Chase, was somewhat different because it involved explicit
partisanship from the bench. There you had repeated jury
charges and actually kind of electioneering from the bench that
also clearly distinguish the conduct at issue there from any of
the rulings at issue here.
So, just to be succinct, none of these historical examples
have anything to do with the substance of the rulings rendered
by the judges who were subject to impeachment.
Ms. Lofgren. Well, even for those who cite the section of
the Constitution that judges serve during times of good
behavior, that wouldn't include disagreement with the outcome
of a case.
Ms. Shaw. No, I would say the combination of the ``good
behavior'' language and the impeachment language has suggested
that the way to implement the requirement of good behavior is
through impeachment. There is no other mechanism that we have
ever used to remove judges, other than the impeachment
mechanism.
Certainly, there is nothing to suggest that disagreement
with a ruling, whether we are talking about as a matter of good
behavior or the specific impeachment language, would ever be
the basis for seeking to remove a Federal judge.
Ms. Lofgren. Senator Chuck Grassley, Chair of the Senate
Judiciary Committee and hardly a bleeding heart liberal,
recently said, and this is a quote, ``You can't impeach a judge
because you disagree with their opinion.''
I take that you agree with Senator Grassley's statement
there?
Ms. Shaw. I do.
Ms. Lofgren. Now, would doing so be damaging to our
constitutional system of separation of powers? If so, why would
that be?
Ms. Shaw. I do want to be clear that I think that there is
a healthy interbranch debate and dialog that can include
criticisms, including sharp criticisms, of the rulings handed
done by District judges, Appellate judges, and Supreme Court
justices.
That can include hearings that consider and maybe adopt
legislative change. Right, obviously Congress has considerable
authority to regulate the jurisdiction of the Federal Court.
So, I don't think any of that is unhealthy or destructive.
I do think that moving into an era in which substantive
disagreement with the rulings of Federal judges gave rise to
impeachment proceedings would involve an escalation of this
kind of interbranch warfare and the politicization of the
judiciary that would be extremely damaging to judicial
independence and to the role of courts in our democracy.
Ms. Lofgren. Thank you very much.
Ms. Romero, I found your testimony riveting, and I am sorry
that you and your neighbors went through such a nightmare.
There is not a single Member of this Committee on either side
of the aisle that doesn't want violent criminals who in this
situation to be deported.
The issue is standing up for the rule of law, making sure
of their due process when that is done. I want you to know that
I listened very carefully to your testimony. I am sorry for
what you went through.
Ms. Romero. Thank you very much.
Mr. Issa. We now go to the Chair of the Full Committee, Mr.
Jordan.
Chair Jordan. Thank you, Mr. Chair.
Professor Shaw, so was Judge Boasberg correct when he said
turn the plane around?
Ms. Shaw. So, I think that protecting the jurisdiction of
his court--
Chair Jordan. That wasn't the question. Was he correct when
he said, turn the plane around, bring the guys back who
harassed Ms. Romero, drove her out of her home, harassed her
neighbors, shot her car, was he correct when he said turn the
plane around, bring those individuals back to the United
States?
Ms. Shaw. Based on the record before him, I think that was
an absolutely defensible decision to have made in the time
pressured condition.
Chair Jordan. That he was correct?
Ms. Romero, what do you think? Do you agree with the
professor and with the judge? Three of those, by the way, three
of those individuals on the plane, Thomas Morillo Pena
(phonetic) is wanted for kidnaping in Chile, was in the Denver
area, where they got him.
Javier Vargas Lugo, attempted kidnaping, was in the Denver
area. Nickson Asusa Perez was in the Aurora area. He may have
been one of the guys who harassed you. Do you think that plane
should have come back and brought those individuals back to the
United States?
Ms. Romero. I feel safer every time a plane is loaded up
and leaving this country.
Chair Jordan. Yes, I was the previous Member from
California talked about your riveting testimony. One of the
lines you had in your testimony that got everyone's attention
was, ``There are no government programs to grant citizens
temporary protected status from imported gangs in our
country.'' Amen to that. There is none. That is why this is so
important that we move these people out.
Mr. Speaker, should the judge, who has been assigned the
Hegseth case, Judge Boasberg, should he recuse himself from
that case? I understand the standard and I know you do,
Speaker. The standard is a reasonable person, would a
reasonable person believe that this judge can be impartial with
this case.
I would just remind you of a couple of things. This is the
judge--this is the judge who was on the FISA Court when they
granted warrants to spy on President Trump's campaign. This is
the judge who handled the Kevin Clinesmith case, an FBI lawyer
who lied to the FISA Court to help get those warrants and was
given a slap on the wrist by Judge Boasberg.
Not my words, the Wall Street Journal said it, because it
was. He was a member of the bar, lied to a court, and got some
probationary sentences. Now this judge said turn the plane
around, and now he has been assigned the Hegseth case.
I am just asking, do you think Judge Boasberg should recuse
himself from that case?
Speaker Gingrich. I think this a classic case where the
Chief Justice should intervene. When you have a blatant,
continuing record of prejudice, that judge should not be put in
charge of the case. As I said earlier, I am not for going
through the whole process of impeachment because I think it is
at a practical level not possible.
I am, however, for using the potential capacity of the
Congress to simply defund, which Jefferson did and which
clearly is possible. This, what you just described is
illustrative of why I use the term ``coup d'etat.''
You have a small group of people who believe that they have
the right to arrogate rejecting the American people and doing
whatever they want and cooperating with people who clearly were
behaving illegally. It is one of the great tragedies of the
last six or eight years is it is the government which has been
illegal.
It is the FBI which was illegal. How can you possibly have
the rule of law when the people in charge of the law are
illegal? I think in that case that you raise a very powerful
point.
Chair Jordan. Mr. Larkin, should Judge Boasberg recuse
himself in the Hegseth case?
Mr. Larkin. Oh, I don't want to offer an opinion about a
specific case that I know only--
Chair Jordan. Do you think Judge Boasberg, based on what
the Speaker just said, what I highlighted, you think Judge
Boasberg has a bias against President Trump and what he is
trying to accomplish?
Mr. Larkin. That is just phrasing the same question another
way. I don't want to comment on a--
Chair Jordan. That is what we do in Congress--a lot of
time.
Mr. Larkin. Yes, I know. Yes, when I was an agent, we did
the same thing to see if we could get the suspect to say
something.
Chair Jordan. How about this, Speaker Gingrich, I think you
are exactly right. We have three avenues to address this.
First, we can do legislative, which we are going to do
tomorrow, we are going to pass Chair Issa's bill, which says
that some District judge injunction doesn't apply nationwide.
We may want to come back with another bill that says
automatic appeal to the Supreme Court, what you have suggested,
and we are looking at that very thing.
Second, we have oversight, which is what we are doing now.
We are highlighting how ridiculous some of these decisions have
been.
Third, what you have pointed out, is we got the
appropriation process. The ultimate power we have, Mr. Massie
is right, the power of the purse. We should use it. We should
use all three of those avenues to make sure the will of the
people, we the people, gets accomplished.
Speaker Gingrich. Well, my personal view is that if you
were to pass the Issa bill tomorrow, you just sent a very clear
and compelling signal--
Chair Jordan. Yep.
Speaker Gingrich. To the Chief Justice.
Chair Jordan. Yep, sure did.
Speaker Gingrich. That he had better get out of lecturing
the Congress and get into managing the judiciary, or he is
going to be facing a real crisis of the system and a real
erosion of judicial authority.
Chair Jordan. Well said. I yield back.
Mr. Issa. The gentleman yields back.
We now go to the gentleman from Tennessee, Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
The Judicial Branch in our country plays a critical role in
checks and balances, which as the Constitution mandates. Our
President doesn't understand that or respect it, and in my
opinion, he accordingly is the one doing the overreach, not the
judiciary.
He overreaches with birthright citizenship, which is in the
Constitution, and he can't with an Executive Order, a press
release with a nice stationery and a little sign on it,
overrule the Constitution.
Nor can he declare a third party--a third term for himself,
which he will probably do eventually, that he can run for
office again. He can't do that.
This man is abusing the office of President by signing an
Executive Orders in so many areas, against Congress for passing
an appropriations bill, which he doesn't respect. By destroying
agencies created by Congress, which he can't do because they
are independent. Like the Peace Institute, it is independent,
but he has gone in and taken it over.
He has also gone after lawyers and law firms. It is no
mystery why he did it. Jenner & Block and WilmerHale, they are
two firms that have had attorneys with them, Andrew Weissman,
who worked at Jenner & Block, and Robert Muller, who worked at
WilmerHale, who had cases against the President.
To get into court, you have got to have an attorney. If
attorneys are fearful of having their opportunities to interact
with the Federal Government, to enter Federal buildings, to
have clearances, they will be reluctant to take cases.
That destroys the opportunity for the Justice Department,
for the judiciary, for the third branch to work as a check and
balance. You destroy it when you don't have somebody to give
entree into the courts.
Professor Shaw, your testimony was brilliant. Just ask you
about a Federal judge. A Federal judge cannot institute a case,
can they?
Ms. Shaw. No, sir, they cannot.
Mr. Cohen. So, what they do is they take what lawyers put
before them and then they determine what it is.
Ms. Shaw. A case for controversy is brought to a Federal
Court, and the Federal Court can resolve it. They are not a
self-starting body.
Mr. Cohen. If lawyers are afraid to bring an action against
the administration or the President, then the courts won't ever
get a chance to do anything.
Ms. Shaw. Absolutely, and I think it is important to
understand that some of the attacks on lawyers and law firms as
indirectly attacks on the judiciary, as well as attacks on the
ability of what causes the President may deem unpopular to
secure representation or for litigation against the Federal
Government to proceed.
I think that all those values are implicated in the attacks
on lawyers and law firms.
Mr. Cohen. Do you remember some of the things President
Trump said in his Executive Orders against some of these law
firms about lawyers? Can you tell us? They are criminal, and
they are trying to destroy our country and they are trying what
are some of the other things he said?
Ms. Shaw. The law firm--the Executive Orders were singling
out and targeting law firms begin with sort of a recitation of
specific representations of disfavored individuals or
representations that law firms have taken on. There are
suggestions that the law firms are deceitful or dishonest. That
they are committing fraud.
They were quite explicit, the orders, that it is the
specific representations made by and viewpoints held by the
attorneys that have given rise to the Executive Order. So, that
is why the lawsuits have framed these orders as containing a
tax on the right to counsel, on the separation of powers, on
independent judges, and on the First Amendment.
There are at least four or five I would say independent
constitutional flaws with each of these Executive Orders.
Mr. Cohen. They sounded like, first the lawyers, first we
get the lawyers. It was the most anti-lawyer thing I have ever
heard. I am a member of the bar, I respect the bar, and I
understand its importance to the American jurisprudence system
and the government system at large.
I would like to yield one minute to Mr. Moskowitz.
Mr. Moskowitz. Thank you, Mr. Chair, thank you for
yielding.
It is so nice to see my Republican colleagues fight to
protect Executive power, but they aren't interested in fighting
to protect this body and Legislative power.
Representative Gill from Texas filed impeachment
proceedings against Judge Boasberg. It has 22 cosigners. He is
not here at the moment; he is probably filing impeachment
proceedings against Louis Brandeis.
Speaker Gingrich says that this is a cumbersome process.
Speaker Gingrich is absolutely an impeachment expert. Well,
allow me to DOGE this cumbersome process for you, Speaker
Gingrich.
Why don't we just ask Chair Issa or Chair Jordan when is
the hearing on impeachment of Judge Boasberg? When is the
hearing? Give me a date, give the American people a date. Oh
wait, Chair Issa says that this is actually a political symbol
and not actual legislation.
It is a fake impeachment. When are you going to tweet that
out? That ought to be popular. We had a fake impeachment for
the last two years. I hope Representative Gill isn't a Comer.
We got to DOGE James Comer, spending millions of dollars in two
years on fake impeachments.
I guess that is what we do, we file fake impeachments now.
That is what we--
Mr. Cohen. I take back my time. It is appropriate--
Mr. Issa. I thank the gentleman for taking back his time.
Mr. Cohen. It is appropriate that on April Fool's Day that
he discusses this.
Mr. Issa. Thank you. Since the question was posed toward
me, I will take the liberty of saying that we take all bills
that are referred to our Committee seriously, including that. I
would only say that be careful what you wish for.
There will in fact undoubtedly be investigations of a
number of judges, but we don't predetermine them on this
Committee. We don't denounce them when they are put in by a
Member. We also don't accept them as anything other than
something for our staff to look at. I appreciate the
gentleman's question.
With that, we go to the gentlelady from Wyoming, the Senior
Member of the Committee--of the House from Wyoming, Ms.
Hageman.
Ms. Hageman. Not the only.
In March, the Miami Herald reported on a team of former
U.S. officials and Venezuelans assisting the Trump
Administration with tracking Tren de Aragua, or TdA. They have
focused on ties between TdA and the Maduro regime, identifying
1,800 gang members sent to our country. Reportedly, 300
received paramilitary training in Venezuela, and the regime has
operational control over them.
Information obtained by the team from police agencies in
South America has resulted in the arrest of at least 800 TdA
members or smaller affiliated entities. According to the
article, TdA has been setting up a drug distribution system in
our country, and the individuals, ``are not criminals sent to
cause havoc, they are soldiers sent in an asymmetrical warfare
operation against the United States.''
On March 15th, President Trump issued an EO invoking the
Alien Enemies Act regarding the TdA invasion. The EO finds that
TdA is perpetuating, attempting, and threatening an invasion or
a predatory incursion against the territory of the United
States.
TdA is undertaking hostile actions and conducting irregular
warfare against the territory of the United States, both
directly and at the direction, clandestine or otherwise, of the
Maduro regime in Venezuela.
Judge Boasberg of the D.C. District Court recently ordered
the Trump Administration to turn around removal flights bound
for El Salvador and carrying members of this Venezuelan
terrorist group, TdA. Judge Boasberg's temporary restraining
order at first was limited to the named plaintiffs, but he
later provisionally certified a class for ``all noncitizens in
U.S. custody who are subject to President Trump's order against
TdA and its implementation.''
Mr. Larkin, what are the problems associated with the
breadth of this order, rather than it being just applied solely
to the parties in front of it?
Mr. Larkin. There seem to be at least two issues.
First is what he, I am told, I haven't seen the complaint,
but I am told that the complaint that was filed seeking relief
was brought under the Administrative Procedures Act. That is
not an appropriate vehicle for this. It should be the Federal
habeas corpus laws.
Second, if you are going to grant class wide relief, you
have to first properly certify a class. The Supreme Court has
so ruled and has told the District Courts that they have to do
first the job of certifying the class and only then awarding
class relief.
In footnote one in Baxter versus, I think it is pronounced
Palmigiano, but don't hold me to that, the Supreme Court said
the District Court had gotten it wrong in that case for
following the reverse order.
If that is what happened, what happens then is you are
seeing some of the problems that can arise when a judge wants
to stop an entirety of the government rather than award relief
to one person. Because there are steps that you have to go
through to certify a class.
To my knowledge, although like I said I haven't followed
that case, I don't know if those steps were followed here. My
understanding is that this is the first I have heard of it from
you, so.
Ms. Hageman. Well, there is another problem associated with
that as well. In the case involving TdA, the judges and other
injunctions that have been issued, nationwide injunctions
issued by these courts, they have not been requiring the
parties seeking the injunction to put up a bond, even though
Rule 65 of the Federal Rules of Civil Procedure mandates that a
party seeking a preliminary injunction or TRO must provide
security, a bond to cover potential costs and damages to the
party who is wrongfully restrained or enjoined.
In fact, such a bond is a condition precedent for an
injunction to be valid. So, in light of that, does this
violation or failure require the posting of a bond undermine if
not actually nullify the legality of Judge Boasberg's order?
Mr. Larkin. I have to say, and it is going to sound like
begging off, but I am not trying to, that I haven't research
that effect in this sort of context, in part because I am not
sure how you set a bond in a case like this, where what you are
talking about is essentially relief that should be granted
under the habeas corpus laws.
To the extent there are separate procedures that you have
to follow in a habeas corpus action, I don't know to what
extent that part of Rule 65 would apply.
Ms. Hageman. What I would like to do is encourage you to
read the opinion article in the The Wall Street Journal from
yesterday, entitled, ``Why Judge Boasberg's Deportation Order
Is Legally Invalid.'' This individual, Daniel Huff, goes
through the analysis of what is required under Rule 65 for an
injunction to be enforceable.
Mr. Larkin. Yes.
Ms. Hageman. One of the problems associated with the
decision is the fact that no bonds have been required in these
injunctions.
Mr. Larkin. Not every provision of the Federal Rules of
Civil Procedure automatically translates over to habeas corpus.
I just don't know if that provision does. If it does, then it
has to be addressed. If it doesn't, then you have a different
set of rules that you follow.
Mr. Issa. Would the gentlelady yield for one second?
Ms. Hageman. Sure.
Mr. Issa. Would your--
Ms. Jayapal. The time, Mr. Chair, the time.
Mr. Issa. Thank you. Would your question be for all these
cases, not just the one that you were speaking of?
Ms. Hageman. That is correct. For all the injunctions that
have been issued in these decisions around the country. I also
would ask--
Ms. Jayapal. Mr. Chair, the time has expired.
Ms. Hageman. I would ask unanimous consent to submit two
articles for the record. Three articles. One is The Wall Street
Journal article. Another one is the article I was referencing
earlier, ``As the U.S. Tracks Suspected Venezuelan Gang
Members, a Look at a Group That's Helping.'' The Executive
Order issued by President Trump.
Mr. Issa. Without objection, so ordered.
We now go to the gentlelady from Washington, Ms. Jayapal,
for five minutes.
Ms. Jayapal. Thank you, Mr. Chair.
Perhaps my colleagues on the other side of the aisle should
consider that the very reason that Donald Trump has faced more
nationwide injunctions than Joe Biden is precisely because
Trump is grabbing unprecedented power from Congress and from
the judiciary, power that is not accorded to any President
because we do not have kings in this country.
If you try to eliminate birthright citizenship, jail people
for free speech, slash funding, and fire people, and eliminate
departments that are actually established by Congress, if you
try to use cold war era regulations to do mass deportations,
then yes, you are going to get nationwide injunctions. Maybe if
you don't like the injunctions, stop doing the illegal stuff.
The argument that the judiciary has run amok is a very
convenient political argument that is being weaponized to
eliminate the fundamental checks and balances that our founders
put in place to protect the independence of the judiciary from
the political branches of government.
If there are threats to the independence of the judiciary,
they come when unelected billionaires try to buy court seats.
They come when there is no ethics code that stops justices from
being captured by special interests.
The lower courts have played a critical role in this
independence from political systems, delivering results that
people from both parties have liked and disliked. During the
Obama and Biden Administrations, lower courts did rule against
the government in cases dealing with student debt relief and
DACA.
The courts have also ruled in favor of guns, religious
liberty, and abortion restrictions. Democrats may not have
liked those rulings, but we did not simply try to eliminate
those courts or impeach those judges. Did you ever hear
Republicans complaining about the judiciary when those
favorable rulings were coming about? Of course not.
One of the most important roles of independent judiciary is
upholding civil rights and liberties. The Judiciary is often
the last line of defense for protecting the vulnerable from the
powerful and the minority from the majority.
This is particularly true when it comes to immigration.
Last night we learned that the Trump Administration mistakenly
deported a father with protected legal status. This is the
latest among numerous questionable deportations, including men
being deported for having tattoos, for autism awareness, and
the names of close family members.
Trump's basis for these deportations is the Alien Enemies
Act of 1798. This statute authorizes the President to detain
and deport noncitizens when there is ``a declared war or an
invasion or predatory incursion'' by a ``foreign nation or
government.''
Professor Shaw, could you briefly explain why the courts
have determined why there is no appropriate basis for Trump to
invoke the Alien Enemies Act?
Ms. Shaw. Well, I should say it is all in a very
preliminary posture, but Judge Boasberg issued his initial
temporary restraining order essentially on the grounds that
individuals who were subject to this deportation on the basis
of this invocation of a 1798 statute that has been used three
times in our history needed some opportunity to contest or
present evidence before being sent to prisons in El Salvador.
This was--just to be really clear, Judge Boasberg did not
order anyone's release inside the United States. Everyone is
able to stay in U.S. custody. It was simply a determination
that the basic demands of due process were not suspended by the
invocation of the Alien Enemies Act.
Ms. Jayapal. Why are those due process rights so important
in the immigration context in particular?
Ms. Shaw. Well, so that the example that you gave,
Congresswoman, of this reporting we saw of an individual who
appears to have been incorrectly seized and sent to a prison--
maybe there was some other basis, but not the specific Alien
Enemies Act invocation basis for deporting him--makes clear
that the stakes kind of couldn't be higher than in the
immigration context especially if we are talking about not just
detention, but deportation and expulsion.
Due process protects us from being summarily deprived of
life, liberty, or property and those interests in some ways are
at their highest when we are talking about the government
taking custody and potentially expelling an individual.
Ms. Jayapal. This law was used, wasn't it invoked by
President Franklin D. Roosevelt to detain 120,000 Americans of
Japanese ancestry during World War II?
Ms. Shaw. That is right. It was part of the basis if the
detention and internment of Japanese-Americans.
Ms. Jayapal. these actions don't just affect foreigners.
What is at stake are constitutional rights for all Americans.
Can you explain to any American who might be watching this
hearing why they should be concerned about their rights given
what the Trump Administration is doing?
Ms. Shaw. Right. I think that the Constitution is the only
thing standing between any of us and being summarily placed on
a plane. Judges are the ones who are often in the position of
enforcing those constitutional rights. This is not about
protecting another, right? This is about protecting all of us.
If the administration is not duty-bound to respect the basic
requirements of the Constitution with respect to these
individuals, it is not clear why it is duty-bound to respect
those rights as to any of us.
Ms. Jayapal. I think that is a very important point and I
think we should be focusing our attention on how to best
preserve our independent judiciary, not delegitimize it.
Mr. Chair, I would like to submit an article--seek
unanimous consent to submit an article for the record. This is
from The Atlantic, ``An Administrative Error Sends a Maryland
Father to a Salvadoran Prison.''
Mr. Issa. Without objection, so ordered.
Ms. Jayapal. Thank you. I yield back.
Mr. Issa. The gentlelady yields back.
We are now go to the gentleman from Virginia, Mr. Cline,
for five minutes.
Mr. Cline. Thank you, Mr. Chair. I want to briefly yield at
the start to the Chair of the Full Committee for a few seconds.
Chair Jordan. I thank the gentleman for yielding.
Professor Shaw, should Congress add four associate justices
to the U.S. Supreme Court?
Ms. Shaw. I think that Congress certainly has the power. I
think that any--
Chair Jordan. You support packing the court?
Ms. Shaw. Look, anything Congress does with respect to the
Court should be responsive to current conditions. There have
been moments when I thought that Congress should take seriously
changing the size of the Supreme Court. It certainly has the
power to do it.
Chair Jordan. That is what I figured you would say. I yield
back.
Mr. Cline. I will reclaim my time and find it interesting
that to be responsive to current events that you would support
adding four justices to the Supreme Court, court packing
essentially when many on the other side saw rulings that they
didn't like. Over the past several years their response was to
pack the court.
Mr. Speaker, do you consider it appropriate to add four
members to the Supreme Court when decisions come down that
people don't like?
Speaker Gingrich. Let me say first, if I might, that
hearing a Democrat talk about fake impeachments after the two
fake impeachments of President Trump, which were repudiated by
the Senate, I thought it was a lovely moment of historical
awareness.
[Laughter.]
Speaker Gingrich. Look, the Supreme Court has been at nine
since 1869. Before that it differed at times, but there has
never been a serious effort--Roosevelt tried and as powerful
and as popular as he was--the country has an instinctive sense
of stability at that level. I would say barring something
extraordinary you--the Court, Supreme Court again; Supreme in
terms of the Article 3, not Supreme in terms of the country--I
think the Supreme Court is best dealt with carefully and
cautiously. It evolves over time. It is not always what
conservatives like; it is not always what liberals like, but
over time it has been a relatively stable part of our system.
Mr. Cline. Now, that we have a Republican Majority in the
House, Republican Majority in the Senate, and a Republican
President, I wonder how those same Democrats feel about adding
four new justices to the Supreme Court right now. They probably
wouldn't be so excited about it.
Ms. Romero, let me ask you since you were so directly
affected by Tren de Aragua. Are these gang members the kind of
folks Americans want in our neighborhoods? Were they good
neighbors when you lived near them?
Ms. Romero. No, they were not good neighbors.
[Laughter.]
Mr. Cline. I read your testimony. It is shocking what went
on in your neighborhood. How long have you and your community
suffered from this invasion?
Ms. Romero. My husband and I lived in the apartment for
four years. For the last year-and-a-half it was pretty bad.
Mr. Cline. Now, if you went around in an apartment complex
with a rifle trying to kick in people's doors, you would expect
police would act swiftly to take you into custody, right?
Ms. Romero. Yes. Any time someone calls 9-1-1, I expect the
police to come swiftly.
Mr. Cline. Yes, that is the reason we have law enforcement
to respond to situations like that.
Ms. Romero. That wasn't my experience with the local police
there.
Mr. Cline. Your cries for help went unanswered?
Ms. Romero. Yes. Very.
Mr. Cline. Unfortunately, Federal judges seem to have taken
up those same talking points and taken issue with President
Trump's Administration calling what is happening in communities
like yours an invasion. Instead, they just call it a migration.
Did it feel like a migration to you?
Ms. Romero. It felt like there were large groups of people
moving onto the property to destroy it and cause me harm and
cause many of my neighbors harm.
Mr. Cline. Felt more like a textbook definition of an
invasion?
Ms. Romero. Yes, nobody made sure my rights were protected.
Mr. Cline. What message does it send when a District judge
in D.C. says the President can't take action to remove these
violent criminals and invaders from your community?
Ms. Romero. I think the President was asked very
specifically to take care of this problem. Promises made and
promises kept. I feel like he is keeping his promise to me.
Mr. Cline. Do you think that these injunctions will make
the problem worse in your community as it emboldens criminals
and handcuffs law enforcement?
Ms. Romero. I think all sanctuary city policies are a
mistake and they are harmful to regular citizens. There is no
one in here fighting for my rights.
Mr. Cline. Well said. Thank you. I yield back.
Mr. Issa. The gentleman yields.
Mr. Cline. I yield to the Chair.
Chair Jordan. Well done.
Mr. Issa. Mr. Larkin, there has been a question that I have
been begging to ask: National injunctions. If a judge in Hawaii
were to rule on something, what prevents shopping for a
declaratory judgment on the opposite end of the country, maybe
in Texas, by the administration and that judge ruling that
there is no such injunction, ruling the opposite and creating a
constitutional challenge as we currently have it?
Speaker Gingrich. Well, you put your finger on one of the
great challenges because due process has to assume that there
is a balance and honesty and integrity in the very system. When
you start getting into an ability to shop--and this--by the
way, this is true for a whole different zone in terms of civil
litigation and trial lawyers. There are lots of things you
could talk about where the system is crumbling because it is so
clearly no longer balanced by due process and a pursuit of
justice. I think that it is a danger.
Frankly, again we are either going to eliminate nationwide
injunctions or the Supreme Court is going to find a way to make
them immediately a national question, not a single District
Court judge. If we don't do something like that, I think the
system is in real trouble.
Mr. Issa. Thank you. The gentleman from Colorado.
Mr. Neguse. I thank the Chair. I
I want to thank all the witnesses. I have the privilege of
representing Colorado in the Congress, and so I want to say Ms.
Romero welcome to Washington and thank you for being here.
Mr. Gingrich, I wasn't planning on talking about
impeachment, but I just have to spend a minute on it given the
statement you made just a minute ago. I think you said--if I am
not mistaken, you said the two impeachments against President
Trump were repudiated in the Senate. Is that the right word you
used?
Speaker Gingrich. Yes.
Mr. Neguse. Yes. OK. Would you describe the impeachment
that you initiated against President Clinton 35-some-odd years
and the Senate's reaction to that impeachment in the same way?
Speaker Gingrich. Well, it failed, which is part of why
Jefferson thought impeachment was not a realistic possibility.
Mr. Neguse. Well, I would just simply suggest to you that--
because I served as an impeachment manager in the second
impeachment trial against President Trump following the attack
on our Nation's capital. In that impeachment, as you well know,
of all the Presidential impeachments, which I suspect you have
studied, seven Republican Senators did something that no
Senators had done in the history of our republic, which is
voted to convict a President of their own political party. That
is a far cry from repudiation.
I understand that it didn't meet the constitutional
threshold for success. I, of course, recognize that.
Speaker Gingrich. Actually, President Johnson had the same
experience in I believe in 1868.
Mr. Neguse. I will just again simply say to you that unlike
the impeachment--no, one, that is inaccurate. Republican
Senators, excuse me, with respect to the impeachment trial of
1868, against President Johnson, that is not accurate. It is
the first time in American history in which Senators of an
opposing political party voted to convict a President of their
same party, but I digress.
I want to talk to you about a phrase you used. I think this
is accurate. You called it a judicial coup d'etat. Am I right?
Speaker Gingrich. That is correct.
Mr. Neguse. OK. You would describe 14 Federal judges
appointed by a President of an opposing political party issuing
nationwide injunctions against a President's Executive Orders
as a judicial coup d'etat?
Speaker Gingrich. I would describe the wave of decisions in
the last seven weeks deliberately designed to slow down,
unwind, and block the President as clearly an effort by a group
of judges.
Mr. Neguse. Sure. I hear you. What I am asking you--again,
I don't think I am mischaracterizing your testimony. Fourteen
Federal judges, all an opposing political--that is to say 14
Federal judges appointed by a President of an opposing
political party issuing nationwide injunctions--
Speaker Gingrich. Right.
Mr. Neguse. --against the President's policies in your view
would be a judicial coup d'etat?
Speaker Gingrich. It depends on how long the time--
Mr. Neguse. Sounds like it depends--
[Simultaneous speaking]
Mr. Neguse. --on the President, Mr. Gingrich, because the
President I am describing is President Biden.
Speaker Gingrich. I know.
Mr. Neguse. During his tenure 14 Federal judges issued
injunctions against policies that he pursued via Executive
Order. How many of them were appointed by a Republican
Presidents? Do you know?
Speaker Gingrich. No.
Mr. Neguse. One hundred percent. All of them.
Speaker Gingrich. Well, you are making my case.
Mr. Neguse. I am making your case?
Speaker Gingrich. They shouldn't be--
Mr. Neguse. What is fascinating, Mr. Gingrich, is I didn't
hear much from you about judicial coup d'etats when President
Biden's policies were being rejected by Federal judges across
the country.
Speaker Gingrich. Well--
Mr. Neguse. It is very convenient now.
Speaker Gingrich. No.
Mr. Neguse. Lo and behold that you take great issue, and
you describe it as a judicial coup d'etat when I didn't hear
these words two years ago.
Speaker Gingrich. Had the Judiciary Committee invited me in
during the Biden Administration I would have been glad to say I
don't approve of--
Mr. Neguse. Oh, I see. I see. I regret that Chair Jordan
didn't issue an invitation to you when, as Mr. Massie
articulated, policy after policy, Executive Order after
Executive Order issued by President Biden were being rejected
by Federal Courts subject to nationwide injunctions across the
land. Approximately you were just waiting--
Speaker Gingrich. No.
Mr. Neguse. --to come testify in front of the Committee to
call that a judicial coup d'etat against President Trump. That
is what it sounds like.
Speaker Gingrich. That is why I believe any kind of
nationwide injunction should go immediately to the Supreme
Court to be validated as a nationwide activity.
Mr. Neguse. Well, I--
Speaker Gingrich. I don't believe District judges have the
authority.
Mr. Neguse. I understand that alternative. I understand
that you have provided that particular alternative as something
for this Committee to consider. Your written testimony
indicates far more significant and structural changes. You
reference the Judiciary Act of 1802 and this notion that the
Congress can abolish District Courts and the rest. You seem to
be suggesting those as remedies that we ought to consider.
In any event, I just want to talk--I will ask the Chair to
indulge me since I know he has indulged other Members.
You have talked about, and I will just read from an article
here:
There is a long tradition which has only been broken really
starting in the late-1950s with this crazy idea that lawyers
and judges are superior to the rest of us and they get to
define everything.
Right?
Speaker Gingrich. That is correct.
Mr. Neguse. You are referencing what case?
Speaker Gingrich. Cooper v. Aaron.
Mr. Neguse. Cooper v. Aaron. That case was a desegregation
case, right?
Speaker Gingrich. Yes, but that wasn't the point of the--
Mr. Neguse. I understand, but this was a case in which the
State of Arkansas was seeking--
Speaker Gingrich. Right.
Mr. Neguse. --the ability to not comply with Brown v. Board
of Education in desegregating schools in Arkansas. It had
nothing to do by the way, Speaker Gingrich, with Presidential
power. It had to do with the supremacy of the Constitution and
the ability of States to respect the Supreme Court's
interpretation of the Constitution. There are a variety of
cases long before Cooper in which the Supreme Court has opined
on the constitutionality of a President's actions. Youngstown
being a great example. It is convenient that for whatever
reason you have landed on these 1950s desegregations as the
inception in your view of the Supreme Court's--
Speaker Gingrich. No.
Mr. Neguse. tyranny, as you describe it, I suppose. I don't
think that this is consistent with the values of the American
people. It is the reason why Republican jurists, Michael
Mukasey, a very distinguished Federal jurist, as you know, has
attacked your ideas in the past. I think you would concede with
that. I yield back.
Speaker Gingrich. Just one second.
Mr. Issa. In continued indulgence I would let the speaker
finish his answer.
Speaker Gingrich. All I will say is the reference to that
is from a book by a liberal lawyer who says specifically that
it is Cooper v. Aaron where, with no reference to the case, the
Supreme Court decides to issue a statement that it is clear
that we are supreme. They are not talking about we are supreme
over Arkansas. We are the supreme deciders. That is explicitly
false and historically wrong. It is what Jefferson was so
furious about in 1800 because he did not believe judges had the
ability to overrule the American people.
Mr. Issa. I thank the gentleman.
We now go to the gentleman from Texas, Mr. Roy.
Mr. Roy. I thank my colleague from California.
Ms. Romero, you have testified about your experience in
Aurora, Colorado. As we talked about at the beginning, I came
to Aurora and visited with you and others that were impacted by
what you were dealing with. To be clear, you felt terrorized in
your home, your apartment? Can we have order, Mr. Chair? Can
we--we are--
Mr. Issa. If you have conversations, please take them off
the dais.
Mr. Roy. Right.
Mr. Issa. The gentleman is recognized.
Mr. Roy. With all respect to my colleagues, I notice Ms.
Romero who was bothered by it. We are talking about people's
lives. Americans' lives.
Ms. Romero, your life. Yes or no, in short answer, was your
life turned upside-down by the existence of Tren de Aragua in
your home, in your apartment complex in Aurora, Colorado?
Ms. Romero. Absolutely. Continue to be.
Mr. Roy. People were in danger? American citizens?
Americans were in danger?
Ms. Romero. I was in danger. My family was in danger. I
couldn't get my grandchildren to even come visit. It was
dangerous over there. The police didn't want to respond. The
local government in Aurora did not want to acknowledge. There
was continued pushback and gaslighting.
Mr. Roy. I mentioned earlier when I opened up this--the
extent to which we had a young woman here who was testifying
last year in this Committee, Alexis Nungaray whose daughter
Jocelyn was murdered at the hands of Tren de Aragua members in
Houston, Texas. Is that acceptable?
Ms. Romero. It is absolutely not acceptable.
Mr. Roy. Let me ask you this: Should TdA gang members or
MS-13 gang members be removed and deported from the United
States of America?
Let me first ask Ms. Shaw, Professor Shaw, should they be
removed?
Ms. Shaw. The President certainly has the authority to make
that determination. The question is how do we know who is a
member of these bodies?
Mr. Roy. These members should be removed? These TdA gang
members and MS-13 gang members, who are posing a danger to the
American people and citizens, should be removed from the United
States of America?
Ms. Shaw. I am a scholar. I am not going to take a policy
position on how immigration should be enforced or carried out.
Mr. Roy. You come out on these issues all the time.
Ms. Shaw. I opine on the law. The President has certain
authority, significant authority to enforce the immigration
laws, but the Constitution is supreme.
Mr. Roy. The President has significant authority as the
Commander in Chief to protect the United States?
Ms. Shaw. Absolutely. Of course.
Mr. Roy. Ms. Romero, do you think these TdA gang members
and MS-13 gang members, and other dangerous individuals should
be removed from the United States, so they do not pose a harm
to American citizens?
Mr. Romero. Every last one of them.
Mr. Roy. Given that, do you believe it was appropriate for
the President to remove those that were removed, that Judge
Boasberg decided to from his perch in the District Court in the
District of Columbia stop, or attempt to stop a plane leaving
Harlingen, Texas--to remove said individuals because this judge
in D.C. decided to assert that he had jurisdiction over that
plane that the Commander in Chief was using to remove these
dangerous individuals from our country? Do you think the
President was right or the judge was right?
Ms. Romero. I think the President was absolutely right. If
you can describe them as illegal and an immigrant to this
country and a criminal all at the same time, they need to go
out of our country.
Mr. Roy. Much has been made of this individual from
Maryland. To be clear, this is an individual that by all
accounts was a member and affiliated with MS-13, the dangerous
in Maryland.
Mr. Raskin. Would the gentleman yield?
Mr. Roy. I will not. This individual was affiliated with
MS-13, had an order of removal against him, was here illegally
in the United States of America, and was put on a plane; a
separate plane, by the way from the one under the Alien Enemies
removal, because he was on an order of removal.
Now, the fact is my colleagues on the other side of the
aisle would like the American people to believe that it is more
important for us to be concerned about the specific mechanics
of an individual illegal alien affiliated with MS-13
endangering the American people and whether or not the
intricacies of due process about what claims that guy was
making to alleged asylum--by the way, asylum because he was
afraid of what might happen to him at the hands of the gangs he
affiliated with if he is sent back home to El Salvador--that
would somehow trump the extent to which Ms. Romero or Alexis
Nungaray would be the ones that are put down at the hands of
dangerous gangs making your life upside-down as an American
citizen. Do you think that is fair, Ms. Romero?
Ms. Romero. It is not fair. I have rights, too. We weren't
asked permission to allow these unvetted criminals into our
country. Nobody stopped them once we sounded the alarm.
Something has to be done now.
Mr. Roy. Mr. Speaker, thank you for being here. We talked a
little bit about what we might be able to do, and you talked
about the fast track to the Court and so forth. I remain of the
belief--and we passed legislation out of here, and it would be
important to send that to the Senate, I agree with you, to send
a message to the Supreme Court.
I would posit and see if you agree. We need to clarify for
the record, both sides of the aisle in response to my friend
from Colorado's commentary, that we had a wake-up call for our
Democratic friends when suddenly there were some judges in the
Northern District of Texas who were saying wait a minute, we
don't think some of these ridiculous rulings about men being in
locker rooms with our girls in schools should somehow be OK
because radical administrators under the Biden Administration
were allowing it to occur.
Do you agree that having the ability to say that you are
not going to have a nationwide injunction at the hands of one
judge but then have a process by which you can have a
nationwide injunction either through a three-judge panel at the
Appellate or fast track to the Court to clarify for the record
we are saying that is not a partisan exercise that--we are
saying that no one judge should make that there should be a
process though, and there are times when a nationwide
injunction does need to occur to stop administrators making
law?
Mr. Issa. The gentleman's time is expired, but you may
answer.
Speaker Gingrich. Well, whether it is a liberal or a
conservative, whether it is a Democrat or a Republican, the
very concept of the distribution of power in the American
system would indicate that no single person should have the
power to dictate to the entire country what they personally
happen to believe that week.
That we need to demystify the process of judgeship,
recognize that it is occupied by humans. There is an amazing
passage from Jefferson where he says look, these are people.
They are subject to exactly the same problems as politicians or
anybody else and you can't put them up on a pedestal.
You have got to have a system which blocks power from being
exploited by the personality or the idiosyncrasies of one
person imposing on 335 million people. That what Chair Issa has
brought out is a very useful first step. As I said earlier, I
think the Chief Justice could vitiate this entire issue if he
took the right steps. We as a people cannot allow random
individuals arrogate to themselves being alternative Presidents
and imposing their personal will on the entire country.
Mr. Roy. Thank you, Mr. Speaker. I yield back.
Mr. Issa. Thank you.
The gentlelady from Vermont is recognized for five minutes.
Ms. Balint. Thank you, Mr. Chair. Given that Mr. Roy went
over by almost two minutes, I would like to give the Ranking
Member a minute before I begin.
Mr. Issa. You are yielding a minute to the gentleman?
Mr. Raskin. Thank you.
Ms. Balint. I am.
Mr. Raskin. Well, I appreciate that. Thank you to the
gentlelady from Vermont.
I just want to be clear about this. First, I want to align
myself with Members on both sides who have found your
testimony, Ms. Romero, very important and very disturbing. We
all agree that gang members should be prosecuted to the full
extent of the law and if they are here unlawfully in the
country, they should be deported.
The idea that this should become the basis for a mass
round-up and deportation of people who have never been charged
with anything, who have no criminal record, strikes me as
absolutely preposterous. The administration at least was
willing to come forward to say, OK, they have the wrong person.
This was a mistake to have him. Now, c'est la vie I suppose, he
is stuck in El Salvador under a dictator who throws people into
a prison that engages in torture.
My colleagues would rather go all the way down to the end
of the field with Donald Trump rather than admit that this is a
blatant violation of American due process and all of our
constitutional values. That is just extraordinary to me that
Members of the House Judiciary Committee would be taking that
position. That is a very serious problem.
Now, Judge Boasberg, who is a conservative judge, who was
appointed to the bench by President Bush, correctly determined
that the Alien Enemies Act of 1798 doesn't apply. It had only
been used before in that original Alien Sedition Act period,
World War I and World War II. It is for wartime. It is for the
deporting of foreign nationals who belong to enemy States or if
there is a military invasion of the country. It doesn't apply.
He said we have got to use the Immigration and Nationality Act,
but that requires a due process hearing.
That is too much for my colleagues who can evince no
sympathy at all for this father of a five-year-old with autism
who has been sent to another country. Now, I don't know because
we are not a criminal court whether he has done anything, but I
do know based on court records he has no criminal record. He
has not been convicted of anything. Suddenly they are saying
well, he is a member of MS-13.
He had an asylum petition, which I will enter for the
record, which showed that he was actually being harassed and
persecuted by a criminal gang which is why he originally came
to America. The court determined although his application for
asylum was time-barred, nonetheless he has established past
persecution based on a protected ground and he has established
the presumption of a well-founded fear of future persecution.
Maybe you guys know something about the case I don't know, but
that is why I believe in due process, because I think a court
should be hearing this.
I thank the gentlelady for her indulgence and her kindness.
Ms. Balint. Absolutely. Thank you, Mr. Chair.
I have heard the suggestion from some of our witnesses
today that because President Trump eked out a narrow win, he
should have the right to do whatever he wants with no checks on
his power. I find this deeply disturbing.
As a former civics teacher, it feels like we failed
somewhere along the way. Presumably we have all had some basic
civics education and I am hearing a shocking misunderstanding
of how the Constitution works.
Professor Shaw, thanks so much for being here. Let's
briefly reestablish the fundamentals here. We have three
branches of government, correct?
Ms. Shaw. Correct.
Ms. Balint. The Executive, Legislative, and Judicial
Branch, correct?
Ms. Shaw. Correct.
Ms. Balint. Under our constitutional order the head of the
Executive Branch, the President, generally must obey orders by
judges, correct?
Ms. Shaw. Absolutely.
Ms. Balint. One of the ways Congress oversees judges and
the President is through impeachment or removal from office for
violating the law or other egregious behavior. Is that correct?
Ms. Shaw. Treason, bribery, other high crimes, and
misdemeanors, correct.
Ms. Balint. Thank you. Congress does not remove judges
because of a disagreement with how they rule. Is that correct?
Ms. Shaw. That is correct.
Ms. Balint. Why is that?
Ms. Shaw. Judicial independence requires the judges not to
be constantly afraid that they will be removed from office if
they issue a decision that is unpopular or that is opposed to
the interests of the political powers or that runs against the
political winds. Judicial independence requires judges to be
confident and secure in their rulings and not fear the
consequences of those rulings other than reversal on appeal.
That is a consequence judges can and should fear, but that
really is the primary consequence.
Ms. Balint. As you have said, this has a chilling effect.
This entire presidency, so far, is about having a chilling
effect on the way that government works. The House must not
take up impeachment resolutions based on anything but serious
misconduct or illegal behavior, yet Republicans, including
people on this Committee who claim to respect the Constitution,
have introduced impeachment resolutions against judges because
they don't like how judges did their job. They have introduced
seven impeachment resolutions so far. I am sure there are more
to come. Trump and Musk have publicly called for the
impeachment of judges that they just don't like. Just by
introducing these impeachment resolutions, my colleagues have
attacked and weakened the independent judiciary.
Does a weakened judiciary, Professor Shaw, endanger
Americans' constitutional rights?
Ms. Shaw. The courts are a key guarantor--
Mr. Issa. The gentlelady's time is expired, but I will give
indulgence. You may answer.
Ms. Shaw. I apologize. I didn't see. Sorry.
I think that an independent judiciary has been and
continues to be a key guarantor of all our rights and so
anything that threatens judicial independence is a threat to
all of us.
Ms. Balint. Thank you, Ms. Shaw. I will just say in closing
I taught my students for years the Constitution requires that
we respect the rule of law and not the rule of one man. Thank
you so much for being here. I yield back.
Mr. Issa. I thank the gentlelady. With that we go to the
gentleman from Texas, Mr. Hunt.
Mr. Hunt. Thank you, Mr. Chair. Democrats love to talk
about democracy. They claim Donald Trump is a threat to it.
They say actions taken by his administration undermine it.
Let's be clear: Democrats have twisted and weaponized the word
democracy to nothing more than a partisan talking point.
Let me tell you what democracy is not. Democracy is not the
tyranny of the majority. When 77 million Americans cast their
vote for a President and when every major swing State breaks in
his favor, and when the Electoral College delivers a clear
mandate, it is not democracy when a District Court judge
overturns the will of the American people and usurps the
constitutional authority of the Commander in Chief, full stop.
President Trump, along with Tom Homan, CBP, and ICE, are
doing an outstanding job securing our homeland and in just a
few months we have seen historic progress on border
enforcement, got-aways are down, arrests are up, and
deportations are finally happening. Now we are beginning to see
that progress stall. Why? Because of the tyranny of the
minority and activist judges targeting immigration Executive
Orders. It is not the role nor is it the authority of a single
judge to undermine the Commander in Chief's constitutional
responsibility to repeal an invasion. Make no mistake about it,
this is an invasion. Twenty million people entered our country
illegally for the past four years is, in fact, the
quintessential definition of an invasion.
It is not just a border crisis. We are fighting cartels
like Tren de Aragua and MS-13. You see groups like these in
coordination with the Chinese Communist Party are flooding our
country with fentanyl. It is not just a crisis here on drugs.
It is chemical warfare. Fentanyl is not a simple drug, it is
also poison.
In my conversations with Texas sheriffs on the front lines
there is absolutely no confusion about what is happening. The
mission of these cartels backed by the CCP is simple. They have
told me this, and I quote, ``Kill the gringo.'' That is the
reality. President Trump is using his power and his
constitutional power given to him by the American public to
stop this from happening.
Ms. Romero, thank you very much for being here. I really
appreciated your testimony earlier. You went as far as saying
publicly that in Kamala Harris' America every State is a border
State and every community is under threat. You also said that
after Tren de Aragua invaded your apartment complex you reached
out to local media and several NGO's in your community begging
for help. Begging for help. You were turned away because there
were no government programs that grant citizens' protected
status.
I have a question for you, ma'am. Do you feel more or less
safe now that President Trump is back in the White House?
Ms. Romero. More.
Mr. Hunt. Why do you say that?
Ms. Romero. Because he is getting rid of the criminals that
were harassing all of us.
Mr. Hunt. Do you think that President Trump is putting the
priorities of America and the average American citizen above
the priorities of the cartels and those people that want to
destroy this Nation?
Ms. Romero. Yes, because these people were causing
immediate harm to citizens, not some imaginary harm that could
happen 1 day.
Mr. Hunt. Ma'am, if you had a message for the American
people today what would it be?
Ms. Romero. This is a real threat to our communities, not
just mine, not an isolated incident, not just regulated to one
building. These are all over the United States. Apparently have
forgotten
9/11. There are dangerous criminals in our country and if we
don't start getting them out now, then when? After they
victimize someone just like me?
Mr. Hunt. I fought for this country. There are many people
in this room that fought for this country. I flew 55 combat air
missions in Baghdad in an Apache helicopter because I do not
want to see animals in our country terrorize my fellow
Americans. That is what we took an oath to do. Sitting here in
the halls of Congress it is also our responsibility to protect
the American citizen first.
For the record, as somebody who has deployed all over this
world, no other country operates like this. None. You cannot
tell me a country that would allow 20 million people to enter
their country illegally and their country does absolutely
nothing about it. For the record, this is the greatest country
in the world. That is why there are 20 million people trying to
enter it illegally. Therefore, we bear an even greater
responsibility to keep these animals from entering our country
to protect you the American public. That is our job.
President Trump won, and he was given a mandate for that
very reason. He promised to protect us and put our priorities
first. It is just that simple. I understand my colleagues on
the Left may disagree with this to a certain extent, but quite
frankly, the mandate was already given to us and, ma'am, you
are sitting here right now because you were terrorized by the
very animals that had no business being in our country in the
first place.
I will let you answer this last question, ma'am. As we move
forward what would you like us to do to protect you?
Mr. Issa. Briefly, please.
Ms. Romero. Stop wasting tax dollars trying to interrupt
him and stop him from doing what he is doing. Do something to
protect the people who elected you, and put you in your spots,
to look down and decide what happens to the rest of us.
Mr. Hunt. Thank you, ma'am. I yield back the remainder of
my time.
Mr. Issa. Thank you.
The gentlelady from North Carolina, Ms. Ross, for five
minutes.
Ms. Ross. Thank you, Mr. Speaker, and thank you to the
witnesses for being here today. This is an extremely important
issue for our country and for the future of our country.
Let me be clear before I ask my question. Donald Trump's
contempt for the Judiciary is not new. He has fought civil
cases against him because of real estate deals and people he
hasn't paid.
He's fought victims that he has sexually assaulted, and he
has been convicted of sexually assaulting. His disrespect for
the judiciary is based on his disrespect for anybody who
doesn't let him do whatever he wants whenever he wants, and he
is very dangerous right now because he is the President of the
United States of America.
We are seeing him treat the people of the United States of
America the same way he treated those poor contractors he never
paid, the same way he treated women who he sexually assaulted.
He is doing the same thing to the United States of America.
So, Professor Shaw, on February 9th, Donald Trump told
reporters that no judge, quote, ``should be allowed to rule
against his administration's unconstitutional changes to how
our government operates,'' and the next day Vice President J.D.
Vance posted on X judges aren't allowed to control the
Executive Branch's legitimate power.
Just to be clear, does the President decide what issues
judges get to rule on under our Constitution?
Ms. Shaw. No, really, since Marbury v. Madison, 1803,
judges on the Supreme Court, right, sitting at the top of the
Federal judiciary have had the final word on the meaning of the
Constitution and the laws and the consistency of laws or
Executive action with the Constitution.
In our system it has been the courts and not the President
who have had the final word.
Ms. Ross. Thank you for that.
I am going to quote Fourth Circuit Judge Michael Luttig,
who I can testify no liberal. I had a case in front of him. He
was a tough customer in the Fourth Circuit.
He was appointed by George H.W. Bush and he recently noted
in an op-ed for The New York Times, quote,
A country without an independent judiciary is not one in which
any of us should want to live, except perhaps Mr. Trump while
he resides in the White House.
Trump has railed against the Federal judiciary for years,
as I said in my opening, and especially now that his
administration is losing in courts nationwide.
So, Professor Shaw, what could Congress do to stand up
against Trump's attacks on the judiciary to ensure that it
remains functioning, independent, and co-equal in our system of
governance?
Ms. Shaw. Well, I certainly don't think resolutions of
impeachment for no other reason than rulings that Members
disagree with are constructive from the perspective of
preserving judicial independence.
One thing that I would imagine that bipartisan support
could easily rally behind is judicial security, right? We are
in a moment in which we have read about the U.S. Marshal
Service concern about heightened levels of threats to Federal
judges.
When there was an actual threat against Justice Kavanagh in
2022 on a bipartisan basis security for Supreme Court justices
was increased. I'm not sure that we have seen anything to that
effect now.
Shoring up judicial independence at a moment where,
frankly, there are not a lot of other functioning checks on the
Executive Branch is, to my mind, critically important and maybe
that's one way this body could devote itself to doing that.
Ms. Ross. Then going back to the impeachment issue that my
colleague from Vermont discussed, if Trump is successful in
getting judges impeached in the House--I don't think he would
be successful with the final decision in the Senate--is he
allowed to demand that a judicial nominee promise not to rule
against him or his administration if he--under his appointment
power?
Ms. Shaw. There's nothing in the Constitution that speaks
to that one way or another but it is certainly a very
established tradition, bipartisan, and long standing that
presidents do not secure commitments in particular with respect
to particular rulings from nominees they are considering.
Certainly, the Senate in its advice and consent role could
seek to enforce that long standing principle by asking nominees
if they have been asked or have given any kinds of assurances.
It would be wildly inconsistent with our practice for our
President to seek such assurance from a nominee.
Ms. Ross. Thank you, Mr. Chair, and I yield back.
Mr. Issa. The gentlelady yields back.
Does the Ranking Member have a unanimous consent request?
Mr. Raskin. Thank you very much, Mr. Chair.
This is from March 31, 2025, the makeup artist that Donald
Trump deported under the Alien Enemies Act from the Atlantic.
Mr. Issa. Without objection, so ordered.
Mr. Issa. The gentleman from Texas, Mr. Gooden.
Mr. Gooden. Thank you, Mr. Chair.
Ms. Shaw, earlier you said that you worried that some of
the intent of these actions will have a chilling effect to
disincentivize the taking on of clients and that the legal
system we have requires lawyers to take on unpopular clients.
Would you expand on that, please?
Ms. Shaw. So, lawyers--the idea that even individuals
charged with crimes are entitled to counsel and to vigorous
representation in their defense regardless of what they may
have done is actually a core belief pillar of our legal system,
and so that's one example.
Individuals even charged with serious crimes have a right
to counsel.
Mr. Gooden. I guess one of the things that I struggle with
is after the 2020 election one of the groups that comes to mind
is the 65 Project which is a legal activism campaign seeking to
disbar and discredit Trump-affiliated lawyers who worked on
lawsuits supporting Trump's attempts to question the 2020
election.
They're a dark money group and I don't recall my colleagues
or you are speaking out against this and, in fact, there were
attorneys that were disbarred for representing their client.
Now, sure, there's folks in this room that didn't agree
with them but one of the things you said during that time was,
quote, ``There need to be serious social, professional and
reputational kinds of sanctions if we want to disincentivize
this kind of conduct,'' and I think this kind of conduct is
perhaps taking on a client that supports a belief that maybe is
not popular and I really hope that we'll get away from this
lawfare and that's something that was prevalent over the last
four years throughout this campaign and now we're seeing it
from this judiciary.
I'm disappointed in this judge but I am happy we're having
this discussion, and I'll yield the balance of my time to Chair
Jordan.
Chair Jordan. I thank the gentleman for yielding.
Some of the previous speakers on the other side have said--
Members on the other side have said attacks by President
Trump--I think I got this right--attacks by President Trump on
the Judiciary are dangerous. They said criticism of judges
weakens the judiciary.
Mr. Larkin, have Democrats ever criticized the judiciary?
Mr. Larkin. Yes, sir.
Chair Jordan. Can you give me an example that maybe comes
to mind? I have several, but I wonder what's one that comes to
mind for you?
Mr. Larkin. Well, I guess the best example recently was the
Supreme Court's decision in Dobbs to overturn Roe v. Wade.
Chair Jordan. Yes, where hundreds of churches and prolife
centers were attacked and firebombed and got all kinds of
criticism coming from people that have--how about this one?
How about the Minority Leader in the Senate said,
I want to tell you, Gorsuch--I want to tell you, Kavanagh,
you've released the whirlwind and you will pay the price.
How about that one? Do you remember that one, Speaker Gingrich,
from Senator Schumer?
Speaker Gingrich. Well, I think it's fair to say that the
passion of the Left when the court does the wrong thing
probably is more professionally organized than any passion on
the Right.
Look, Franklin Roosevelt tried to pack the court. He was a
Democrat. There's a long tradition in America that we're
allowed to argue over--the courts are not--they're not temples.
This is not a religious judicial system. It's a secular
judicial system.
Chair Jordan. Yes, fair enough. We're going to criticize
decisions all along. We're giving it one way. This goes both
ways. Both sides have criticized the courts and criticized
decisions. We're allowed to do that in this country. That's the
way it works.
Professor Shaw, do you think it was appropriate for what
Mr. Schumer--Senator Schumer--said on the steps of the Supreme
Court when he said, ``You will pay the price,'' referencing two
members--sitting members of the U.S. Supreme Court?
Ms. Shaw. I think he should have phrased it differently.
I'm sure he feels the same way.
Chair Jordan. What about the Dobbs leak? What do you think
about that and some of the comments that were made after that
decision was leaked? Do you think that was good?
Ms. Shaw. I'm not sure what comments you're talking about.
There was very, very sharp criticism of Justice Alito's opinion
in Dobbs. I think that's perfectly healthy, yes.
Chair Jordan. I think we had a Member said that there
should be impeachment for the decisions that happened after the
Dobbs decision there should be impeachment of one of the
Supreme Court justices. A Member of Congress said that. Do you
think that's appropriate?
Ms. Shaw. Impeachment rhetoric is something that we have
seen from time to time. I guess I'm not categorically opposed
to talking about it. Introducing resolutions, as we have seen,
has been a significant escalation and, of course, it would
depend on why.
There was serious discussion of impeachment of several
sitting Supreme Court justices over ethics matters in the last
few years. I don't think there's anything unhealthy about those
discussions.
Chair Jordan. It's OK to talk about impeaching a Supreme
Court justice, it's OK to add four associate justices to the
Supreme Court, and you had no problems with the comments made
after the Dobbs leak. Is that your testimony?
Ms. Shaw. I'm sorry, I'm not sure what specific comments
you're talking about, but criticism of the substance of the
substance of the Dobbs ruling I have no problem with that.
Chair Jordan. OK. I yield back.
Mr. Issa. The witnesses were very kind and there are more
people that want that kindness. With that, we'll take a five-
minute recess.
[Recess.]
Mr. Issa. The Committee will come to order.
We now recognize the gentlelady from California for five
minutes.
Ms. Kamlager-Dove. Thank you, Mr. Chair and Ranking Member.
The student tours have started back up here in the Capitol.
When I was walking through the rotunda I walked past a group of
young kids from Ohio and the kids were listening to their
teacher talk about George Washington, and then I heard the
teacher say that this is where we have all our checks and
balances.
I remember thinking to myself, well, only for a few months
more. You talk about banning books. I was like, well, we might
have to ban all the books that talk about checks and balances
because we won't have any at the rate this Committee is going.
In fourth grade children are learning about civics, the
three branches of government, the checks and balances of power
between the different branches, the co-equal partnership
between the Executive and Legislative, the independence of the
Judiciary. Not a new phenomenon. Article 3 judges were
established 236 years ago in the Constitution with a lifetime
tenure.
We could go back, and I've heard it in this Committee, and
talk about Marbury v. Madison, Plessy v. Ferguson, Dred Scott,
but more recent is where I want to land and I thank the Chair
for also bringing up some of these rulings.
We have had Bush v. Gore. We have had Citizens United. We
have had Hobby Lobby. We have had Masterpiece Cake Shop. We
have had the overturning of Roe v. Wade, and yes, all major
wins hailed by the Right.
In the aftermath of these rulings, even with the passion of
the Left, Mr. Speaker, the judicial institutions remained
intact and bench officers were not excoriated or physically
threatened. In fact, one U.S. District judge her son was
killed.
Now, we have an administration aggressively and unapolo-
getically pushing the boundaries of what is constitutional and
erasing the checks and balances of power by going after judges
who do not side with Trump, to the point that even Justice
Roberts of Republican lore says it is inappropriate to impeach
judges and, after all, he is part of the ultimate arbiter in
this arena which favors the Republican Party with a 6-3
majority.
So, I'm asking myself what is really going on. What is
going on is we are setting a dangerous precedent by replacing
judicial independence with judicial fealty, because if judges
feel like they must follow a partisan ideology rather than
independently interpret the law then we as law makers are a
shill in this charade.
We do not make laws for ourselves to interpret. We make
laws for judges to interpret and impose punishment to those who
don't follow them, and what is sad is that all these decisions
that Trump doesn't like are still appealable.
Once again, what is going on? What is going on is instead
of being a party that supports smaller government Republicans
are creating a far-reaching Leviathan, an insatiable, chaotic
monster of power and once that locomotive starts going you
cannot put the brakes on.
This judicial independence, checks and balances, has
withstood 118 Congresses and 46 Presidencies and somehow today
we are supposed to be at some critical moment where we are told
to believe we have to blow this thing up.
It makes me think about March Madness, which is happening
right now. These kids are playing their hearts out. They are
trying to win, and they are dealing with good calls and bad
calls from referees, and not all calls are perfect, but they
are still respected. No one says, I didn't like that call. Go
after the referee. Go after the system.
In fact, in organized sports the most classless and
unpalatable thing you can do is blame your loss on the referee
or blame the umpire for the outcome of the game, or cheat, and
five, 10 years ago we saw these parents attending these Little
League games and then violence was being committed. People were
running onto the field attacking and assaulting the referees
and it was distasteful.
Now, we are here with this court doing the same thing. The
games do not work without officials and our system of justice
does not work without judicial officials, and Justice Roberts
says all we do is call balls and strikes. Judges, like
referees, are a neutral party. You don't always like what they
say.
You might not always agree with their calls, but you have
to respect the institution and the officials, and if you take
away the one element that brings integrity with it then the
competition itself has no integrity.
Then, you have to ask the question why do we even take an
oath? Why do we even obey any of these laws? What we have right
now at this hearing with Trump's attack of the bench officers
with the threat to impeach judges is the equivalent of parents
rushing onto the field and trying to punch a judge in the face.
It is disrespectful, it is unseemly, it is unprecedented,
and it is a disgrace.
With that, I yield back.
Mr. Issa. I thank the gentlelady.
We now yield to the gentleman from California for his five
minutes, Mr. Kiley.
Mr. Kiley. Thank you, Mr. Chair.
In our State of California we have a Governor who routinely
attacks judges when he doesn't get his way, often in very harsh
terms, this being Governor Newsom, of course.
After one ruling related to the Second Amendment, Newsom
threw a veritable temper tantrum, calling a special press
conference to lambast the judge, calling him an extremist, a
stone-cold ideologue, a wholly funded subsidiary of the NRA,
and saying, quote, ``We need to call this Federal judge out. He
will continue to do damage. Mark my words.''
It is curious hearing some of the comments about the
appropriate relationship between the different branches of our
government and the appropriate way to opine on judicial
opinions with that in view and we have also, of course, seen
examples brought up by Chair Jordan related to Chuck Schumer's
comments on the steps of the Supreme Court that were rebuked by
Chief Justice Roberts himself.
There certainly is--it's appropriate as elected officials
for us to express views on opinions of the judiciary. The idea
that one side has crossed the line but the other has not simply
is not borne by the evidence.
Now, the broader question before us today is related to
this issue of checks and balances, because we have reached a
point where checks and balances have gotten a bit out of whack,
given developments that were not really on the minds of the
Founders related to the idea of nationwide injunctions, which
didn't exist in the early years of the republic or really not
until modern times.
Given the expansive growth of the Federal judiciary such
that now you have not just an issue of the judiciary impeding
the President or impeding Congress but, rather, you have the
ability of any individual judge to do so.
As Justice Gorsuch has said,
The government's hope of implementing any new policy could face
the long odds of a straight sweep, parlaying a 94 to zero win
in the District courts into a 12 to zero victory in the courts
of appeal.
What these nationwide injunctions have effectively done is
not just shifted power from one branch to another but empowered
the most extreme people within the Judicial Branch by saying
that we're going to give one judge who can be essentially
picked by the plaintiffs the ability to put a policy on hold.
What this creates is a sense of stasis and a sense of
frustration and you see this during Republican and Presidential
Administrations that the levers that we have to really have our
citizenry exercise its will are getting increasingly difficult
to pull.
We have increasing hurdles to legislation, the ability to
get over a filibuster in the Senate, to change policy that way,
and then even when the President is exercising his duly granted
authority we have these nationwide injunctions that are putting
the President's agenda into stasis.
I do think there is an appropriate opportunity here to see
if we need to recalibrate the way checks and balances are
functioning, and I think that on top of that it's a matter for
the judiciary itself because the way our system generally works
is you have different forums, you have different cases
addressing similar issues involving different fact patterns.
You develop a factual record. You have different judges
that provide a different sort of analysis, and then to the
extent that they conflict it percolates up the system.
You have that record in place and you can then come to a
decision that has the most fully considered process within our
system and these nationwide injunctions are short circuiting
that entire process, not allowing for the merits of an issue to
be duly considered and simply giving one particular judge,
often on the extreme end of the distribution, full say on the
matter.
So, Mr. Gingrich, Speaker Gingrich, you've mentioned a few
possible remedies here. One that caught my attention was the
ability of the Chief Justice to establish a procedure as it
concerns nationwide injunctions.
What would that look like?
Speaker Gingrich. Well, thank you. Look, it will be the
least intrusive and least disruptive to have the Chief Justice
decide and the court decide. It would be very simple.
Yes, a District judge can render a judgment but the moment
he or she renders an injunction beyond their district the
Supreme Court would immediately intervene, suspend imposition
of the remedy until the Supreme Court rendered a decision.
If the Supreme Court said, you're right, then you have a
Supreme Court enforced nationwide injunction. If the Supreme
Court said, we're not convinced then it would vitiate the whole
thing and it'll be over, and you would not have the ability of
individual District judges to make radical decisions.
Remember, justice delayed is justice denied. You start
having--and this is where the judge--frankly, the Chief Justice
was a little bit silly to say, well, there's an appeals
process.
If you're talking about getting rid of criminals or you're
talking about defending the country an appeals process can run
so long that the damage has already been done by the time you
go through the appeal.
In some form if we're going to retain the ability of
District judges to issue any injunction it has to be modified.
If we can't get a modification it has to be abolished.
Mr. Kiley. Thank you very much.
I would encourage the Chief Justice to, hopefully, be
thinking about this from his perspective and in Congress we, of
course, also have tools to create expedited appeals and I think
that, frankly, that's hopefully, perhaps, a compromise that
both sides could come to since this will be an issue that
arises in future administrations as well.
Mr. Issa. I thank the gentleman.
I now ask unanimous consent that Ms. Crockett to be
permitted to participate in today's hearing for the purpose of
questioning a witness if a Member yields time for that purpose,
and without objection so ordered.
I now recognize the gentleman from California Mr. Swalwell.
Mr. Swalwell. We're about two-plus hours into this hearing,
maybe three, and as I'm taking stock we're here because some
guy I've never heard of--he might be in Congress--introduced an
impeachment resolution.
He's not here. He hasn't been here for at least the last
hour, and every witness here is in agreement that we really
shouldn't be impeaching judges. I haven't heard a single
colleague on the other side say we should be impeaching--
Mr. Issa. Would the gentleman yield?
Mr. Swalwell. Not yet. This guy's just raising bucks on
this issue. This is like a fundraising ploy. We are all here.
Like, we're in our suits. We're wasting--we're not dedicating
ourselves to other matters because this guy wrote some
articles.
It just seems kind of absurd to me because no one even
thinks that's the remedy and I dare whoever this person is--I
hoped he would come--I dare him to bring a privilege resolution
because we can actually debate this.
It's just a stunt. I promise you it's a stunt. I will
contribute to his campaign if he brings before this Committee
an impeachment resolution.
Now, Speaker, you said some of these judges are pretend
Presidents, rogue judges--
Mr. Issa. How much would the gentleman give to his
campaign?
Mr. Swalwell. --700 District judges that are pretending
that they're president.
There's a judge, a single judge in a Federal courthouse in
Amarillo, Texas, where conservatives are forum shopping and
having cases sent to him, Judge Kacsmaryk.
In 2023, he suspended Mifepristone approval. That's a
medical abortion pill. Can you direct me, Speaker, to the
statement you gave objecting to him doing that? I couldn't find
it.
Speaker Gingrich. No. Look, I haven't spoken out on this
issue until I was invited to come here.
Mr. Swalwell. OK.
Speaker Gingrich. I wrote about it in 2011, and I submitted
that for the record.
Mr. Swalwell. How about when Judge Kacsmaryk ruled against
ACA protections for LGBTQ individuals in November 2022? Did you
speak out against that rogue judge?
Speaker Gingrich. Well, I think the term I have not spoken
on this issue until I was invited here was generic and included
every single one of the cases you want to ask about.
I will stipulate in advance I did not comment because I did
not comment, and I'm not here to comment on a single case.
Mr. Swalwell. How about an--OK, I got it.
Speaker Gingrich. I'm here to say that the system is out of
whack which, by the way, I wrote about in 2011.
Mr. Swalwell. Speaker, an elected Trump third term, is that
constitutional? I think it's funny, too.
Speaker Gingrich. If the Congress wishes to pass a
constitutional amendment and the requisite number of States
decide to endorse that amendment of course he would have the
option to run for reelection. In the absence of that kind of
constitutional change I think that it's impossible.
Mr. Swalwell. Thank you.
With that, I'll yield to the gentlelady from Texas Ms.
Crockett.
Ms. Crockett. Thank you so much, and I appreciate the
Speaker for admitting openly on the record that it is
unconstitutional.
The concerns that I have are around the fact that we are
sitting here pretending as if we all are looking out for the
Constitution, yet we are coming from completely different
angles.
Let me go to Professor Shaw. To be clear, which branch of
government is responsible for interpreting what is and what is
not legal?
Ms. Shaw. Well, the Supreme Court--the Article 3 Judicial
Branch has the final word.
Ms. Crockett. The Judiciary is who it is. It's not the
legislators?
Ms. Shaw. I'd say every branch has an obligation to
interpret the Constitution. The final word comes from the
courts.
Ms. Crockett. From the courts. It's not the former
speakers. It's not everyday people. It's not the President. I
just wanted to make sure that we understood who it was that was
responsible and what is so frustrating for so many of the
American people, the ones that are watching right now and
otherwise, and the reason that they're outraged and scared is
because what we see right now is the diminishing of all these
institutions.
Right now, we have a Legislative Branch that has decided
that it intentionally would disregard their duties. They are
not checking the President whatsoever. The only check that the
American people have had thus far has been from the Judiciary,
and the Judiciary isn't pulling this out of the sky.
In fact, they come from basic reading of the plain language
of the Constitution, for all those that are constitutionalists,
when we start talking about things such as what birthright
citizenship is.
One of the things that I want to make sure that I get to
because there are deeper implications if we go down this rabbit
hole.
Imagine the type of world where the President does whatever
he wants to do and no one can rein him in. It's a world that
right now many people are afraid of.
Let me put it this way. If Joe Biden would have done an
Executive Order for abortion despite what the Supreme Court
said that would have been a problem.
Imagine if the State of Colorado kept Trump off the ballot
and other States followed suit. That would have been a problem.
Or imagine if Jack Smith ignored Aileen Cannon and with the
help of an activist judge decided that he was going to
prosecute the sitting President anyway.
The problem that we have right now is that if we continue
down this road then we will not have a rule of law because we
have people that are currently serving and they're saying
things like, ignore the judge's order.
What it means to have law and order in this country is that
you follow the order, and you go through the appeals process
even if you dislike what the judge did.
Thank you, and I yield.
Mr. Swalwell. I'll yield back, Mr. Issa.
Mr. Issa, you had a question for me, which I'll yield to
you now if you want to--
Mr. Issa. Now, that there's no time left. Thanks, Eric.
Mr. Swalwell. I'm an entertainer.
Mr. Issa. You're good. You're good at that. I'll take my
own time. I'll recognize myself, and I'm going to note that
when Ms. Ocasio-Cortez, or AOC as we know her, filed articles
of impeachment on Justice Thomas and Alito, Ms. Crockett was
one of the cosponsors along with Mr. Cohen, both Members of
this Committee.
It does seem interesting that when the shoe is on the other
foot everyone is self-righteous, and this is a good example.
For the last three hours--
Ms. Crockett. Mr. Chair, would you--
Mr. Issa. --for the last three hours I have had to listen
to one side talking about impeachment as though it was the
nature of this hearing. It is not.
I keep looking at my friend, the late Henry Hyde, and
remember that although he led the impeachment when it was
necessary he did so only during that time and then never
mentioned it again in hearings. In fact, he was religiously
able to focus on the hearing of the day.
The hearing of today is really about the question of the
future of the court's ability to do its job as intended, and
I'm going to get into a couple of things fairly quickly. Last
night, a California judge, Judge Chen, proactively stopped the
ending of these temporary protective status.
The very person that they're talking about who is now
apparently back in his home country of El Salvador can no
longer be sent there because a judge has decided in California
to stop an action which was done completely by one President at
his discretion and when another judge says--another President
says, I'm ending it at my discretion, they stop him.
I'm going to go to Mr. Larkin first. You mentioned earlier
on--Alaska, I think--in passing about judges in various places
and I'll reiterate a question that Speaker Gingrich also
answered earlier.
If one judge can take a case before them and make rulings
on behalf of plaintiffs not there and, yet, it's a District
Court judge, and we know that courts around the country
routinely take similar cases with different plaintiffs and
decide them differently and that's how we generally get to the
Supreme Court is to resolve those.
Is there any reason that this administration couldn't file
a declaratory judgment not in California where Judge Chen ruled
but in some other place--let's say Texas, which has been
mentioned today--and get a different outcome and in fact undo
and give in fact the administration the legitimate right to
say, no, we have been found not to be enjoined but we have a
right to do it as long as we siphon it through Texas instead of
California.
Is there any reason today that this doesn't exist as a
problem of these national injunctions which are not in the
jurisdiction of these judges?
Mr. Larkin. What you're talking about is a problem that the
Supreme Court contemplated when it decided on the Mendoza case
some years ago.
It recognized that different courts would decide issues
differently and it decided not to bind the government the first
time it lost.
If the government lost in Maine it could continue to take
the same position in Alaska or in the other States. They were
asked to basically adopt a one and done rule and the Supreme
Court rejected it. It's permissible under the law.
Mr. Issa. When people talk about this President acting
illegally, the fact is this President, by acquiescing to these
and going through the Appellate process, actually is going
further than he has to under the Constitution.
The reality is he could simply say, you made your
decision--we just won't do it in your district, but we'll do it
elsewhere and we'll seek other remedies in other areas. The
fact is this Administration has been overly generous for this
first 70 some days, correct?
Mr. Larkin. The Supreme Court in Mendoza was unanimous. It
included conservatives and liberals on that court, and they
allowed that development to occur.
Mr. Issa. Under Mendoza the fact is only the Supreme Court
speaks for the entire Nation and that is what we are discussing
here today.
It's the issue before us. Is that correct?
Mr. Larkin. Yes, absolutely.
Mr. Issa. OK. I'm going to just derive a couple of other
quick things.
There was an earlier question on Rule 65. Now, these are
produced by the court and the unambiguous language of it says
that, in fact, at least in some cases--we won't argue over any
one of these now approaching a hundred cases--there has to be a
bond and, yet, there have been no bonds. Is that correct?
Mr. Larkin. I have not searched the record in all those
cases.
Mr. Issa. We have. We have. There hasn't been a bond. Mr.
Larkin. I'll trust you on that.
Mr. Issa. Rule 65 is being ignored by these activist judges
and as a result there's a real question about the disobedience
of those rules in absence of a bond they may, in fact, not be
enforceable as valid, correct?
Mr. Larkin. That may be. I would not say they're being
ignored because if they weren't raised by the government as an
issue in the case then they might have just been overlooked.
Mr. Issa. I would trust that from this day forward they
will not be overlooked.
You've got enough time. This will be the last round until
the recess. You're recognized.
Mr. Goldman. Thank you. Thank you very much, Mr. Chair.
Mr. Gingrich, I want to focus on some of your testimony
today. You say that a judicial coup d'etat is being implemented
by judges of the same political ideology. In another statement
you said that Judge Boasberg has a clear bias against President
Trump.
Do you know who appointed Judge Boasberg?
Speaker Gingrich. I think his first appointment was by
George Bush.
Mr. Goldman. Correct. We have been talking about nationwide
injunctions. There's been a lot of discussion about the
injunction on the President's birthright citizenship Executive
Order that was enjoined by Judge Coughenour. Do you know who
appointed Judge Coughenour?
Speaker Gingrich. No, I don't.
Mr. Goldman. Ronald Reagan. Let's just focus on these two
Republican-appointed judges so we can just remove all the
allegations of partisan bias.
Speaker Gingrich. We're removing the other 90 or so.
Mr. Goldman. Let's focus first on Judge Boasberg's case,
which is the Alien Enemies Act, a 1798 law that very
specifically applies during wartime or if the country is
subject to an invasion.
Now, you would agree, I assume, as a former Speaker of the
House that it is Congress' duty to declare war?
Speaker Gingrich. I think there's also a provision of the
act which does say for an invasion and I think the average
American will tell you they feel that we have been invaded by
the policies of the Biden Administration.
Mr. Goldman. OK. Good. Good. The average--so are we now
supposed to say that the average--your assessment of the
average American's view determines whether or not we are under
invasion by Venezuela? That's what we're supposed to do.
Now, if not the average American what your testimony is
here today is that Donald Trump, because he was elected
President, alone should determine whether or not that law
applies without any due process. Is that your testimony?
Speaker Gingrich. No. My position is that the Supreme Court
should have the opportunity on a nationwide issue to render.
Mr. Goldman. OK. Let me reclaim my time.
Basically, what you're saying then is the problem here is
that Judge Boasberg precertified a class because, of course, it
is the exact same legal question for every single person who
was removed to El Salvador and what really should happen is
that every single one of those people should have to file their
own lawsuits and each district's then judge should rule on it.
Because that's the difference, the opposite of a nationwide
injunction, right?
Speaker Gingrich. Actually, I said several times in the
last three hours, there can be a provision by which the Supreme
Court takes up that injunction and immediately acts on it.
Mr. Goldman. Which is it? Do you oppose nationwide
injunctions as a judicial coup d'etat?
Speaker Gingrich. No.
Mr. Goldman. Do you think nationwide injunctions are
appropriate in certain circumstances but should have expedited
appeal?
Speaker Gingrich. I believe that nationwide injunctions by
an individual judge is far too much power and that--
[Simultaneous speaking]
Mr. Goldman. OK. Let's keep on with Judge Boasberg's case.
OK. He issued--and by the way, he did not issue an order on the
underlying issue.
He temporarily enjoined the President from whisking off
people to another country without due process so that the legal
issue could be resolved.
Now, you say expedite an appeal. That opinion, that case,
was already appealed to the District Court--the U.S.--the Court
of Appeals for the District Court.
They've already ruled, and by two to one they kept the
temporary injunction in, and it was a Republican appointee,
Judge Henderson, who was one of the two.
I guess I'm confused as to what the problem is with a
temporary nationwide injunction so that the issue can be
resolved and, if necessary, ultimately, by the Supreme Court.
It sounds like you agree with me that this is the appropriate
process.
Speaker Gingrich. The difference is whether or not you
believe, one, that time matters and the appeals process--
Mr. Goldman. Well, this was within a matter of weeks. It's
now before the Supreme Court. That's expedited. I will say I
wholly agree with you, and with my colleague Mr. Kiley I would
happily work to expedite appeals for nationwide injunctions.
I hope my Republican colleagues would work with us to
expedite enforcement of Congressional subpoenas. The courts
take far too long. I agree with you.
The notion that we do not have due process and that someone
should be removed without due process based on false pretenses,
which the administration now admits under a petition for habeas
corpus I would add, Mr. Larkin, and that there's no recourse
because their mistake is now out of their control.
I think even you, Mr. Gingrich, would agree with me when
you mistakenly accuse someone of being a gang member and you
deport them that it is incumbent on you to fix that mistake. Do
you agree?
Speaker Gingrich. I agree.
Mr. Issa. With that, we're going to give you at least
until--let's call it 2:30 p.m. to return. We stand in recess.
Mr. Issa. Thank you all for your patience and indulgence.
It took a little longer than we planned. The Committee will now
resume, and our next questions will come from the gentleman
from North Carolina, Mr. Harris.
Mr. Harris. Thank you, Mr. Chair. Thank you all and the
panel for your patience today and continuing to persevere as we
go through this day.
Speaker Gingrich, you refer to this trend we're discussing
today as a, quote, ``emerging dictatorship of District Court
judges.'' You posted on X that the No Rogue Rulings Act, quote,
``would be an appropriate first response to the District judges
who are trying to do mini-Presidents totally beyond their
constitutional authority.''
I totally agree with you, Speaker Gingrich, and the No
Rogue Rulings Act would be an impactful first step in
addressing this problem. I was proud to vote in favor of it
when this Committee marked it up. I later joined on as a
cosponsor and look forward to at some point having the
opportunity to vote on the House floor.
Speaker Gingrich, specifically, do you believe there are
any additional legislative steps that need to be taken to
address the problem of activist judges acting beyond their
constitutional authority as you described in your post?
Speaker Gingrich. Well, I would just say for the moment
that this issue of District judges becoming alternative
Presidents and issuing nationwide injunctions is such a central
point to where we are that solving this--first of all, if we
can successfully limit the District judges, we will send such a
strong signal of rebalancing the Constitution. I think it will
sober up everybody on the Judicial side.
In the future, there are some key issues. The whole notion
of whether judicial supremacy means Supreme inside Article III
or Supreme over Article I and II, is an issue worth taking up.
I would put that at a very distant second to solving this
immediate problem.
Because if you solve the immediate problem, you both make
it possible for the Executive Branch to be effective and you've
sent a pretty powerful rebuke to the Judicial Branch. They
can't overreach in what they're doing. I'd make it a sequence
in that sense.
Mr. Harris. I got you. Well, as we all know, President
Trump issued an Executive Order 14160, which was referenced
earlier today in ending birthright citizenship for children
born to illegal immigrants or those on temporary visas. It was
on February 5th that U.S. District judge Deborah Boardman of
the District of Maryland issued a nationwide preliminary
injunction against this Executive Order, arguing that it ran
afoul of the 14th Amendment.
Speaker Gingrich, do you think it is in line with the
President's duties to reexamine birthright citizenship as he
did with Executive Order 14160?
Speaker Gingrich. Well, it's certainly a legitimate
function of the Presidency to look at how things change and how
they evolve. I suspect in the short run, this will be resolved
at the Supreme Court level. I personally believe that it's
pretty hard to go back and look at the debate at the time of
the 14th Amendment was adopted and somehow leap from that to a
birthright situation.
In fact, they're fairly clear, for example, that people who
are born to diplomats in the United States do not count as
citizens. There are other factors there. The next phase of that
argument is going to be at the Supreme Court level and then I
think depending on what happens.
We live in a very different era. The scale of illegal
immigration which frankly has changed, my guess is some of
these debates will change pretty dramatically because President
Trump is being so stunning effective at controlling the border
and pretty effective at going after illegals who are also
criminal. I do think in the long run having somebody who
deliberately comes in the U.S. just long enough to have a child
and then having had the child maybe on a tourist visa, if you
will, claiming now they have an American citizen in their
family.
My guess is to the degree that continues to evolve with
modern transportation that we'll probably revisit this issue.
First, we ought to see exactly what the Supreme Court says.
Speaker Gingrich. All right. Thank you, sir. Mr. Chair, I
yield back.
Mr. Issa. If you'd yield to me.
Mr. Harris. I'll yield to you.
Mr. Issa. I'll followup on that briefly. A diplomat's child
is not a citizen, correct?
Speaker Gingrich. That is specifically correct.
Mr. Issa. A diplomat is here on a visa and is lawfully in
this country, including the spouse typically. Would an invading
army that comes with its spouses while here occupying, let's
say Texas, would their children be covered under the 14th
Amendment?
Speaker Gingrich. My reading of the debates about the
amendment would suggest that you had to be here legally to be
qualified to have a child who'd become an American. See, you
couldn't be here illegally. You couldn't be here in a situation
where you would not be within American law. In that sense, an
invading army by definition is not here as part of the American
law.
Mr. Issa. It's a legitimate debate on the 14th Amendment
and where you'd be in and out.
Speaker Gingrich. I think it was a habit which grew up sort
of absentmindedly when there frankly weren't very many cases.
As it got to be a bigger and bigger issue, people began to say,
wait a second. Do we really think that in the 1860s this is
something they had in mind? It's pretty hard to read the debate
and conclude that they wanted birthright citizenship for
noncitizens.
Mr. Issa. Now we go to the gentleman from Missouri next.
Ms. Scanlon. Excuse me.
Mr. Issa. I'm sorry.
Ms. Scanlon. Thank you.
Mr. Issa. Oh, you haven't gone yet?
Ms. Scanlon. No, I have not.
Mr. Issa. You sit so close.
Ms. Scanlon. I know.
Mr. Issa. The gentlelady is recognized for five minutes.
Ms. Scanlon. Thank you. It's interesting that we've
returned to the birthright citizenship argument because I think
the courts that have looked at this issue, several courts
already, and have reviewed the debates from that time found
that they did explicitly consider the issue of noncitizens and
who was in the country. The court has considered it as well.
Mr. Raskin, I could yield to you for a minute.
Mr. Raskin. Thank you, Ms. Scanlon. I've looked at this
question too. I've gone back and I've read the debates. All the
explicit mentions I've seen were explicitly to reject the
proposition that Speaker Gingrich just mentioned, the idea that
somehow you wouldn't be covered.
There was an exception talked about for the children of
diplomats. That was very much a discrete exception, everything
identified. One way of understanding this, of course, is that
the African-Americans for whom the first sentence the 14th
Amendment were core intended themselves all had parents and
grandparents who were noncitizens because the meaning of the
Dred Scott Decision was that you could never be a citizen if
you were an African-American or the decedent of slaves.
So, the first sentence of the 14 Amendment, all persons
born or naturalized in the United States and subject to the
jurisdiction thereof shall be citizens of the United States,
was a direct overruling of Dred Scott and saying that all these
people whose parents were not citizens could come in. There
were specific questions on the floor about people from other
countries, especially what were considered the Dred Chinese at
the point. There were very emphatic statements made that, yes,
even the children born of Chinese noncitizens would be
citizens.
I'm not quite sure what the Speaker is referring to. If
you've written a law review article on that, I would love to
see it. Everything that I've seen, both directly in the debates
and the law review literature, is completely counter to what he
just said. Thank you for yielding.
Ms. Scanlon. Thank you. The Committee has covered a lot of
ground today. I just wanted to return for a minute to some of
the basic civics principles that were raised by this hearing
and why our courts an independent judiciary matter.
Some of our colleagues and the administration itself have
suggested that since Donald Trump won the 2024 Presidential
election, his actions and his interpretation of the law can't
be questioned. Can you explain why that's a problem under our
constitutional system?
Ms. Shaw. Sure. I would say that maybe the single most
important core structural principle in our Constitution is that
power be divided and that power check power because too much
concentration of power leads to tyranny. All that we have seen
with the rulings that have come down that have found violations
of either statutes passed by Congress or provisions of the
Constitution is the separation of powers working as intended.
The President having the sole and final authority to determine
the meaning of laws, statutes, or the Constitution is just
fundamentally inconsistent with the notion of separated powers
that is the core of our Constitution.
Ms. Scanlon. I think we've also had conversations today
about due process and how vesting all the power to determine
what the laws and who is subject to it in one person, or one
branch leads to a slippery slope. We've heard today that the
administration has deported someone who was not a Venezuelan
gang member and in fact did not even have a criminal record. We
know that in the past, the administration deported citizens
because they were not able to get a hearing to prove they were
citizens.
This slippery slope becomes very real. Nobody here is
saying that we shouldn't punish or deport violent criminals. We
are saying that you need to prove someone is a violent criminal
before you can exert this kind of punishment on them. Could you
talk about how that impacts every American?
Ms. Shaw. Sure, yes. I just think that the only way that
government can be sure and that all of us can be sure that they
are targeting the right people for these harshest of
punishments is by affording a modicum of process, right? That
is the notion of due process. Making sure that individuals
understand what is being alleged against them and have some
opportunity to respond.
That is just the heart of due process. I do think that it's
important that both the initial temporary restraining order
issued by Judge Boasberg that we've talked about a good amount
already today, that was affirmed by a panel of the D.C. Circuit
that it included appointees of both Democratic and Republican
Presidents simply sort of reaffirmed that core notion that a
degree of process needs to be afforded to everyone. That's not
to constrain the ultimately ability of the President to enforce
the immigration laws. It just suggests the Constitution needs
to be honored while he does that.
Ms. Scanlon. I want to thank our witnesses. I yield my
remaining time to Mr. Raskin.
Mr. Raskin. Thank you. It seems to me that when Donald
Trump was criminally prosecuted in New York or civilly sued in
New York, everybody insisted on all due process. He deserved
it, and he got it.
Even then, people still doubted the integrity or the
veracity of some of the findings and the verdicts. Now, we have
people saying, no, we don't need any due process at all to do
X, Y, or Z to someone. That just can't be right. Thank you.
Ms. Shaw. Thank you.
Mr. Issa. We go to the gentleman from Missouri now.
Mr. Onder. Thank you, Mr. Chair. Thanks to all the
witnesses for joining us today. Speaker Gingrich, thank you for
your testimony. You are a great student of history, in fact, a
great teacher of history.
I'd like to recall the words of Chief Justice John Marshall
who famously said, ``It is emphatically the province of the
judicial department to say what the law is.'' I've never liked
that quote because on its face it implies some sort of judicial
supremacy. The judges are somehow supreme oligarchs, that
they're like Moses bringing down the tablets from Mount Sinai.
Marshall at the time was presiding over what was famously
called the weakest and the least dangerous branch of government
in Federalist 78 by Alexander Hamilton. Marshall if he were
here today would say that, yes, the judges are the ultimate
interpreters of what the law is. Of course, it is the duty of
the judges to apply the law in concrete cases before them.
We face a very different situation today. I believe we do
have a constitutional crisis as you say, a judicial coup. We
have Chuck Schumer bragging about his 235, quote, ``progressive
judges,'' his words, not mine, in over 100 cases issuing
injunctions time after time and in time, his words, not mine,
to block the Article II Executive powers of a duly elected
President of the United States.
Of course, we have the ridiculous decision of Judge
Boardman that planes ought to be turned back to aid vicious
Venezuelan drug gang members. An equally absurd TRO was issued
by U.S. District Court Judge Brendan Hurston in the PFLAG v.
Donald Trump case. In that decision, Hurston halted President
Trump's January 28th Executive Order protecting children from
chemical and surgical mutilation which blocked taxpayer dollars
from being used for sex change operations for children.
This is an absurd and activist TRO. The only reason such
grizzly procedures were ever covered by Medicaid is that
President Obama's CMS decided they would be. There is no law
passed by Congress that genital mutilation of children should
be covered by Medicaid.
It stands to reason to paraphrase Barack Obama that what
was done by the pen and the phone can be undone by the pen and
the phone. Judge Hurston says, no, he is above the law and
above the Article II and the Constitution. I believe we do
indeed have a constitutional crisis. Speaker Gingrich, I agree
with you that the No Rogue Rulings Act is a very good start. I
really encourage the Supreme Court to issue a ruling to make
this very clear.
Professor Shaw, in December 2024, Biden's Solicitor General
Elizabeth Prelogar, criticized the practice of nationwide
injunctions. Then, in 2022 or previously in 2022, Justice Elena
Kagan criticized nationwide injunctions. In October 2023.
speaking at NYU Law School, you criticized nationwide
injunctions and what you called precision judge shopping which
seems to me is exactly what's being done against the Executive
action of the actions of President Trump now.
Then, in February 2023, in an op-ed in The New York Times,
you said that the U.S. Supreme Court was at the time, quote,
``a genuine threat to democracy.'' Fast forward to March 2025,
and you're here today exhibiting enormous deference to not
Supreme Court Justices, but District Court judges' ruling
dozens of times against the President's Executive powers.
You're saying, well, they're just doing their job.
They're getting it right, and President Trump has it wrong,
or it was the other way, just a couple short years ago. Ms.
Shaw, this looks awfully political on your part. Your response?
Ms. Shaw. Thanks for giving me the opportunity to respond.
What I was discussing in the quote that you mentioned was the
problem which is a very real one of single judge divisions
where plaintiffs can guarantee with 100 percent certainty that
they will draw a particular judge like Judge Kacsmaryk in
Amarillo, Texas.
Mr. Onder. Isn't that what's going on right now?
Ms. Scanlon. Not a single one of the 46 rulings that the
come down against the Trump Administration have been filed in
single judge districts. It's entirely different. I am not
standing here saying that there is never abuse of the universal
injunction reform. I think it's perfectly appropriate. That's
an entirely different problem. That's not what's being
addressed in the legislation that's on the table.
Mr. Onder. Was the TRO in PFLAG v. Donald Trump correctly
issued? If so, where in U.S.C. 42 of the Social Security Act as
amended with Medicaid, where do you see an entitlement for
Medicaid coverage of sex change operations in children?
Ms. Shaw. Sir, I apologize. I'm not sure the reasoning of
the opinion. Many of these opinions have come down either on
the First Amendment or equal protection grounds, the TROs. I
would have to take a look at the reasoning and the opinion. A
temporary pause which is what these TROs are where a judge
thinks there's a serious constitutional flaw with an order
issued by the President I do think is appropriate.
Mr. Onder. A temporary pause, just like puberty blockers. I
yield back.
Mr. Issa. Gentleman yields back. We now go to the gentleman
from South Carolina, right down the row.
Mr. Fry. Thank you, Mr. Chair. Mr. Larkin, in your
testimony, you talked about the history of nationwide
injunctions and how this has not always been the practice in
the courts up until the 1960s. We've seen an escalation of
nationwide injunctions by District Court judges. How would you
characterize the emergence of nationwide injunctions since the
1960s and its effect on the judiciary?
Mr. Larkin. Two things to keep in mind. First, the 1960s
saw a rise in what is called institutional reform litigation,
an attempt not just to win a case for a particular client, a
particular John or Jane Doe, but to establish a rule of law
that could be used in the whole category of cases to which
could possibly be applied and then a lot of others as well. If
you're doing it at a State, for example, you're not going to
say that your client was the only affected by unconstitutional
prison conditions.
You're going to sue the entire State Department of
Corrections because what you want is to have one judge
reconfigure the number of people in the rooms, how the rooms
are laid out, all of that. What you had was you had judges who
in some cases were trying to decide with hellish conditions
that would've made Dante blanche and try to figure out how to
deal with that. It's not surprising that in some of those
cases, there are different prisons.
They were in Texas, Mississippi, and Louisiana. We know
them all that were absolutely awful. A judge under those
circumstances is probably going to have to do more than just
say, OK, well, you have to give this one client a better room.
What you saw was a development in this regard of judges
expanding the reach of the relief that was being granted. That
was part of it. Part of it was also--
Mr. Fry. Real quickly just from a time perspective, do you
think that part of this emergency of nationwide injunctions,
particularly against the Trump Administration now, and the
numbers are kind of shocking, is partly due to partisan nature
of some judges on the bench?
Mr. Larkin. Oh, I don't doubt that at all. If you take a
look at the selection process, Presidents tend to look for
people who are going to rule in accordance with their views,
whether you're on the Right or the Left, whether you're a
Republican or a Democrat. I worked with Senator Orrin Hatch
when he was the Chair of the Judiciary Committee.
If he was the Chair under Obama, you would see one type of
judge being nominated. If he was the Chair under George W.
Bush, you'd see a different type of judge being nominated.
Different ways of looking at it are common among people, and
people become judges.
Mr. Fry. Speaker Gingrich, earlier, you talked about,
obviously, your support of certain Congressional actions that
would correct or rectify the role of the courts in these
nationwide injunctions. You also talked a little bit about the
court can police itself. I think with Mr. Kiley, you went into
at least one metric on how that can be done.
What are your thoughts generally on how the Chief Justice
who seemed to kind of brush aside criticism of the courts and
just say, well, you could just go through the Appellate
process? How could the Chief Justice rein in his own court?
Speaker Gingrich. Well, I suspect that Mr. Larkin actually
knows more about this than I do. My impression is that the
Supreme Court has a rather strong capacity to instruct District
Courts in a broad range of procedures. Were the Chief Justice
to basically preempt Chair Issa's bill and say this is how
we're now to handle it.
The argument in this hearing as I understand it is really
pretty narrow. It is that with over 600 District Court judges,
you cannot have them each thinking they're an alternative
President. Therefore, there has to be alternative system.
One system would be to block all nationwide rulings.
Another system would be to have it appealed automatically to
the Supreme Court. A nationwide ruling immediately got a
nationwide court looking at it and recognizing that the appeals
process of the Supreme Court the Chief Justice referred to is
nonsense when you're talking about Executive Branch actions
because the length of time it takes to go through the appeals
process is by itself destructive of the capacity to have what
Hamilton called as an active Chief Executive. He said that the
system will only work with an active Chief Executive.
You can't be an active Chief Executive if you have a whole
bunch of little pieces tying you up. This is a classic example
of Gulliver and the local District judge who suddenly has blown
themselves up in their own ego and decided I too could be
President. I'll show you because I'm actually a superior
President because you have to obey me. It's impossible to
defend the situation.
Mr. Fry. In that circumstance--sir, I know I'm overtime
here briefly. In that circumstance, you have 600 Presidents of
the United States. Thank you, Mr. Speaker. With that I yield
back.
Mr. Issa. Thank you.
Gentleman from Wisconsin.
Mr. Grothman. Yes, I don't like being here today. It's a
sad state of affairs because you don't like to have to clip the
wings of the judiciary or say that sometimes we don't have to
obey a judge's order, which is I think where this is leading.
We have a lot of judges who are reaching decisions that are
just so completely out of line and where a lot of these
decisions are going to revolve around immigration and removing
people.
The only reason this has become such a big issue is that we
had a President who decided to the degree which he could, he's
not going enforce the immigration laws of the country. After
you have a completely irresponsible President and completely
irresponsible judges, you wind up in the mess we are today.
Now, just to clarify things, I'll ask maybe Mr. Larkin, Speaker
Gingrich.
Obviously, the country has been around now under our
current Constitution for about 230 years about. What precedents
from the early part of our country indicate an injunction
should not be beyond parties directly involved in litigation?
In other words, when Abraham Lincoln went to law school, what
would he have thought about these decisions?
Speaker Gingrich. Of course, Lincoln didn't go to law
school.
Mr. Grothman. You're right. I was going to correct myself.
Speaker Gingrich. He read the law.
Mr. Grothman. Right.
Speaker Gingrich. I've been around long enough that I
remember talking with Jefferson. When I talked to Jefferson, he
said, ``you simply can't have an oligarchy.'' If you allow
judges to be the final determinants, you by definition have
left the people behind and established an oligarchy.
I really think if you look at Lincoln and if you read
Fehren-bacher's extraordinarily detailed book on Dred Scott,
Lincoln makes the Dred Scott Decision the centerpiece of the
1858 campaign. When Lincoln--he's very clear about this. Think
about Lincoln at Gettysburg when he says Government of the
people, by the people, and for the people, he's not only
referring to Southern slave owners. He's referring to the
court.
He's saying by definition, you cannot usurp the right of
the elected officials. Now, if you read the Federalist Papers,
it's very clear that the Founding Fathers thought the weakest
of the three branches would be the Judiciary, that it would
always be cautious because it would always be subject to be
overwhelmed by the Executive and Legislative together. In fact,
you all represent the branch the Founding Fathers most feared
because they assumed that the people elected by the people
would have the greatest power. We just have to recognize
there's a--
Mr. Issa. We said they were wise.
Speaker Gingrich. I think they had good reasons to fear the
institution I once led.
Mr. Larkin. Can I just add a short supplement to that?
Mr. Grothman. Sure. I'd like to say, did this issue ever
come up in the 1840s, 1850s, 1860s, or 1870s?
Mr. Larkin. No.
Mr. Grothman. OK. It was just assumed it was understood at
the time?
Mr. Larkin. The law of equity was party specific. If Person
1 sued Person 2, the court would remedy whatever harm Person 1
suffered. The court would not then go on and enter an
injunction to try to govern society. That was not the role of
the courts.
The Supreme Court has even made that point more recently.
They've said responsibility to adjudicate a case of controversy
is quite different from the responsibility to govern the
society. Lewis v. Casey which is cited in one of my articles
makes this point. It was not a component of equity in England
or as you put it in the 1840s, 1850s, or 1860s. It happened
only much later.
Mr. Grothman. OK. Now we're never supposed to--they tell us
you're never supposed to ask the Democratic witness, but I'll
break with my staff. Ms. Shaw, what do you think is the
strongest example of a case, say, before 1870 in which a
District Court tried to come up with a ruling that affected the
whole country?
Ms. Shaw. We don't have examples that are of the sort of
nationwide injunction that we know today. I don't think that's
really in question. There's been an enormous increase. The
scholarly debate about how kind of well--
Mr. Grothman. OK.
Ms. Shaw. --how historically grounded this is. It goes back
and forth. It's either about a century old or a little more. I
don't think there's much suggestion that there were injunctions
of this sort in the early--
[Simultaneous speaking.]
Mr. Grothman. OK. That would be an indication that under
our Constitution our Forefathers never dreamed we'd have these
types of rulings come from somebody who just it comes from an
individual district. Well, I could tell Speaker Gingrich wanted
to get in one more swing here. We'll let you get a swing and
then I'll--
Speaker Gingrich. What we have seen over the long sweep of
American history is a gradual steady increase in the self-
esteem and power of lawyers. Marbury v. Madison, is totally
misrepresented. The fact is that Marshall was terrified of
Jefferson, knew that the Jeffersonians would gladly wipe out
the court, danced around.
It's not revisited until Dred Scott. Dred Scott is a
disaster. You really have a long period here where judges
didn't think they had the power to define for the country how
the country should behave.
What we're living through and I'm very sympathetic to the
agony on the Left because this is the--if you have Jefferson,
Jackson, Lincoln, FDR, and Trump, this is the fifth great cycle
of a profound challenge to the existing order. Obviously, these
kind of periods are very painful and they're very dangerous.
You've got to work your way through them.
This is one of the examples. You have a group of people,
well meaning, I believe. Ideologically deeply convinced that
they have the power to overrule the President of the United
States.
Now, the country has to make a decision. Do we, in fact,
have alternative Presidents in the form of District judges or
not? The country will overwhelmingly decide that's impossible.
This is a classic--this is what the Congress should be
about at its best. This is a classic historic discussion on
both sides of how we retain a balance of power between the
three branches. I think that's where we are.
Mr. Grothman. Thank you.
Mr. Issa. Thank you. We now go to the gentleman from Texas
who's been patiently waiting.
Mr. Gill. Thank you, Mr. Chair. Thank you to the witnesses
who are here. We discussed it a little bit earlier. I'd like to
put a little bit of a finer point on it.
In the 117th Congress, then Chair Jerry Nadler as well as
Hank Johnson introduced the Judiciary Act of 2021 which
would've increased the size of the Supreme Court from nine
Justices to 13. That bill had 59 Democrat cosponsors. They were
so convicted that the size of the Supreme Court should be 13
Justices that they then reintroduced the same bill in the
following Congress and received 65 cosponsors.
I am looking forward to my colleagues on the other side of
the aisle reintroducing that bill this Congress as well. We
hear a lot about bipartisanship. I'm sure you can get a little
bit of bipartisan support for that when you do.
With that said, Mr. Chair, civilization is a very fragile
thing. In the Western world, particularly in the United States,
it's been unraveling as the Left and their allies in the courts
have intentionally and deliberately facilitated the mass
migration of criminal illegal aliens into our communities.
These are people who are murdering, raping, and pillaging
American citizens on American soil, a country that was once the
zenith of civilization. America increasingly resembles the
Third World and is reverting to barbarism as Ms. Romero's
testimony so poignantly underscores.
Instead of fighting for the preservation of our communities
and the integrity of our Nation's sovereignty, our colleagues
on the other side of the aisle want to keep alien terrorists
within our borders. So, many times District Court judges are
leading the charge. I think that Judge Boasberg is an excellent
example of that.
Mr. Speaker, thank you very much for being here. It's an
honor to be able to speak with you and ask you questions. I
look up to you a lot. Could you explain how much constitutional
and legal authority does Congress have to oversee lower courts?
Speaker Gingrich. Well, it has virtually--if it acts with
the Executive Branch. Part of the theory of Montesquieu's
spirit of the law which is the base of the Constitution is you
have these three bodies. Any two outvotes the other one.
In a very real sense, the Congress and the Judiciary could
take on the Executive, or the Judiciary, and the Executive
could take on Congress. It's constantly evolving.
President Jackson made the argument that in fact each of
us, every elected official, has an equal obligation to enforce
the Constitution. He refused to accept the idea that the court
could instruct him. He very blatantly just said, ``Glad you
think that. I don't.''
Then Taney who was his Attorney General who defended that
ends up as a Supreme Court Justice, in many ways, leading the
civil war by his decision in Dred Scott. I think you have every
right. If you read the Constitution itself, you create lower
courts.
The Supreme Court is superior in the sense it's the one
thing in the Constitution you could not eliminate except by a
constitutional amendment. Everything below that is a creature
of the Legislative Executive agreement. I'm assuming you're not
going to try to override the President. Theoretically, Congress
could decide. If it had the votes in the House and Senate, you
can override a President.
Mr. Gill. Right.
Speaker Gingrich. The courts are actually much more subject
to the policing of the elected officials of the United States
than they think they are. That's because for about three
generations now law schools have taught this mythology of legal
supremacy based on the Judicial Branch alone. It's nonsense.
It's one of three co-equal branches, and it is the weakest of
the three, not the strongest.
Mr. Gill. In terms of enforcing that oversight, putting
aside whether impeachment is the most expeditious or prudent
means right now to oversee the courts, do you believe that it
should be at least considered as an option to remedy blatant or
flagrant judicial overreach from District Court judges?
Speaker Gingrich. Well, I think that Chair Issa has exactly
the right first step. We're in the middle of such enormous
change that this will strike some of you who've known my career
as sort of unusual. I'm actually now in a period of thinking
incrementalism may be pretty good.
We've actually set an enormous shift strategically. Now, we
need to spend a little bit of time cautiously. I don't want to
overreach, which theoretically you could abolish the District
judges.
You have that power if the President agrees. That would be
an enormous jump. The country needs to educate itself and
frankly the judges are going to get educated.
If they see the Legislative Branch seriously moving, I
mean, it's one thing that the President say something from the
bully pulpit. It's another thing to suddenly see laws moving
and realize if we don't pull back a little bit, this can become
uncontrollable. I'm hoping--this is why today I've repeatedly
talked about the opportunity the Chief Justice has because I
really hope he'll realize he has the best, easiest, and least
disruptive solution.
Mr. Gill. For the record, I agree that I think that Mr.
Issa's bill is an excellent piece of legislation that we should
all be able to get behind. Thank you.
Mr. Issa. As a freshman, you're going to go far. The
gentleman from Washington is recognized for five minutes.
Mr. Baumgartner. Thank you, Mr. Chair. Thank you to our
distinguished panelists for this insightful testimony and it's
been a long day.
Mr. Speaker, it's a real honor to be able to ask you a few
questions. When your freshman in this body, you see a lot of
portraits on the wall. Frankly, you don't know who a lot of the
people are.
The American people always remember you in the mark you've
left on this institution. The question I have for you is just
to comment on the situation the American people find themselves
in because this is a very dangerous and perilous time for
America. Because the American people think the fix is in.
You talk to the average person in my district, and they
look at a situation where over 12 million people came into the
country illegally and there was no remedy to stop that
procedurally from their elected officials. Now, they look at a
situation where after they had an election, they had a
President that clearly campaigned on this issue. They look at
dangerous gang members who spread fentanyl that's killed over
100,000 Americans, more than died in Vietnam, more than died in
the wars in Iraq and Afghanistan.
They say, let's get these people out of here. This is what
we just voted for. Yet, now there's a system where the one
judge or a few judges in a certain area after judge shopping
can stop.
They look at the situation and say, is there any remedy to
this? What is the future of the Republic if what they just
voted for is something as egregious, as dangerous, hardened
gang members from a foreign country in the country legal
spreading a deadly drug that is killing over 100,000 Americans?
They say, well, how is this supposed to work? What would be
your comment to these people?
Speaker Gingrich. Well, three quick things.
First, I run a project called the America's New Majority
Project. If you ask the American people, do you think the
system is corrupt, 82 percent say yes.
Now, that's really dangerous in a free society. I don't
care what your ideology or what your partisanship is. When more
than eight out of every ten of your fellow Americans think the
system is corrupt, you have a deep challenge to somehow break
through really on a nonpartisan basis.
Second, President Lincoln once said, ``with public
sentiment, anything is possible. Without public sentiment,
nothing is possible.'' It's very important for every judge who
thinks they want to impose themselves on the President to ask
themselves, are you putting the entire judicial system in
disrepute?
Because if the country sees really sort of by the standards
of most Americans fairly radical positions being taken by
judges, blocking what is the clear will of the American people,
not just the President. I think that it literally puts the
entire underlying system under enormous stress and leads to
popular dissatisfaction in a way that's very, very dangerous.
The stability of the system ultimately requires that all of us
find a way to work together to behave in such a way that people
no longer think the system is corrupt.
Mr. Baumgartner. Mr. Speaker, just finally you reference
Thomas Jefferson, one of our Founding Fathers, one of the
founding revolutionaries of this country, the author of the
Declaration of Independence in your opening statement. I was
able to visit the White House for the first time last week and
got to meet President Trump there. As we came in, we exchanged
some pleasantries and there was kind of a humorous moment
because neither of us knew quite what to do because staff
weren't telling us.
As we had this kind of moment of silence, then he said,
``Well, can I show you the Declaration of Independence?'' He
turned around and showed it to me. It was on his wall, and he
was very proud.
He just had it installed. So, it was kind of a fun moment
as you can imagine for any American citizen, particularly a
freshman Member of Congress. I hear you loud and clear.
I hope on what you think is the best remedy at this point
is that Chief Justice Roberts steps in and brings some clarity
and some sanity to the craziness right now. If he didn't and
President Jefferson were sitting in the White House or the
President right now, what do you think President Jefferson
would do if Chief Justice Roberts wouldn't step in and help
this issue?
Speaker Gingrich. The Jeffersonians as a group were
bitterly anti-judge. The No. 2 demand in the American
revolution after no taxation without representation was their
hatred of the British judges because they were appointed by the
King, served at the King's convenience, and was seen as the
oppressors imposing the law of a foreign government on the
American people. Jefferson had grown out of that tradition.
Jefferson is probably the most radical of the Founding
Fathers. The Jeffersonians ran essentially on cleaning up the
judiciary. This is why the whole thing with Marshall is such a
wonderful example of the sleight of hand because if you look at
the Judiciary Act--in 1801, after they lose the election, the
Federalists pass the Judiciary Act of 1801 which creates
judges, many of whom were being appointed literally the night
before Jefferson is sworn in.
They were called the Midnight judges. Well, the
Jeffersonians thought, we're not going to have this. They write
the Judiciary Act of 1802 and they wipe out--as I said in the
beginning of my statement, they wipe out I think 16 of them, 14
of which were actually occupied.
I got into this because a good friend of mine who's a great
lawyer said, ``Those must've been vacant because after all,
it's a lifetime appointment.'' No, we went back and pulled up
the biographies. These 14 guys had to go out and get a job.
They were gone.
Marshall knew you push Jefferson very hard, a guy who buys
half a continent, sends the Marines to Tripoli. You really want
to play this game? They didn't.
If you read Marbury v. Madison,, it's a brilliantly clever
device in which he says, we really had this authority. You
don't have to worry about it because we ain't going to give it
to him. Marbury doesn't get his writ.
He tweaked Jefferson. He knew if he tweaked him too much,
he would probably have replaced the whole Supreme Court.
Jeffer-sonians were very tough about this stuff.
Jefferson also was very practical. I think what Jefferson
would say is you've raised the issue. You've begun to get the
country aware. You might consider as a first step Chair Issa's
bill.
There may be--I'm not suggesting this. I'm responding to
your question. It may be speculatively at some point that the
most radical and dumbest of the decisions could lead to
interrogatories to the judges, first in writing.
It might even be conceivable at some point that the judges
might be brought in under oath to explain what's the--how did
you think of this? What's the constitutional basis? Why are you
doing this?
I mean, there are many ways one could pursue this. My hope
is that the comments we've made here today will, in fact, move
the Chief Justice to eliminate the problem and to get back to a
situation where no single District judge is an alternative
President and where we can have greater respect for the court
system because the court system has greater respect for us.
Mr. Issa. I thank you all. It's been a long day. Although
my closing statement I'll read in a moment says this will be in
writing just to make it easier for all of you, there are
approximately 8,000 petitions to the Supreme Court every year.
Over the last three calendar years, the court has accepted
68, 62, and 62 of them. We've heard a great deal today about
just appeal, just go through, and now what's clearly going to
hit over 100 national injunctions, all whom would, according to
Chief Justice Roberts, have to go to him through an appeal
process. Even with Speaker Gingrich's suggestion, that would be
100 additional cases potentially in a year going to the Supreme
Court in writing.
Because it has been a long day, to the extent that any of
you want to opine on the question of the burden on the court
that comes from these many, many, many national injunctions
because we've talked about my bill here quite a bit today.
We've also talked about impeachment quite a bit today. You're
all welcome to opine on that in writing.
It's important that we also ask a lot of functional
questions. The Ranking Member Johnson and I, we oversee the
courts. We've moved again to this Congress on a bipartisan
basis to add 66 new judges at the District level. We all have
to be concerned about the case load of how do we get the right
number of cases, how do we get them to the judges, how do we
get good decisions, and ultimately, the burden that flows up to
the Supreme Court.
So as my script now says, this concludes our hearing. I
want to thank our witnesses. I would ask that all Members have
five legislative days on which to give additional written
materials for the witnesses along with other material and would
ask that the witnesses be willing to respond to those if they
receive them.
Before I gavel, Ms. Romero, you weren't asked any questions
to speak of today because you weren't a constitutional scholar.
I'll leave to you the last word.
Ms. Romero. I'm worried that all the outrage following the
illegal immigrants' rights and their right to be here, and they
could be good people, and we need to have them properly vetted
before we get them out of the country. Where was all the
outrage before you let them in?
Where was all the outrage when my video happened? You got
to save your outrage to when it's convenient to fight a
President who's trying to make a positive change in the
country. Where was all your outrage when I needed your help?
Because I feel like you guys have lost the plot and you're
allowing harm to come to Americans in the pursuit of stopping
President Trump. I don't think that's right and I don't think
that it's fair. I don't think in the next election it'll stand.
Mr. Issa. Thank you.
Mr. Raskin. Mr. Chair--
Mr. Issa. We stand adjourned.
[Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
joint Subcommittee on Courts, Intellectual Property, and the
Internet; and the Subcommittee on the Constitution and Limited
Government can be found at: https://docs.house.gov/Committee/
Calendar/ByEvent.aspx?EventID=118073.
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