    [Senate Hearing 119-174]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 119-174

                   THE SUPPOSEDLY ``LEAST DANGEROUS BRANCH'':
                            DISTRICT JUDGES V. TRUMP
                           JOINT SUBCOMMITTEE HEARING

    =======================================================================

                                    HEARING

                                   before the

                        SUBCOMMITTEE ON FEDERAL COURTS,
                           OVERSIGHT, AGENCY ACTION,
                               AND FEDERAL RIGHTS

                                    AND THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                                  JUNE 3, 2025
                                   __________

                               Serial No. J-119-21
                                   __________

             Printed for the use of the Committee on the Judiciary

                     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov
                                    ______

                      U.S. GOVERNMENT PUBLISHING OFFICE

    61-716                    WASHINGTON : 2026

                           COMMITTEE ON THE JUDICIARY

                      CHARLES E. GRASSLEY, Iowa, Chairman
    LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois,
    JOHN CORNYN, Texas                     Ranking Member
    MICHAEL S. LEE, Utah                 SHELDON WHITEHOUSE, Rhode Island
    TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
    JOSH HAWLEY, Missouri                CHRISTOPHER A. COONS, Delaware
    THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut
    JOHN KENNEDY, Louisiana              MAZIE K. HIRONO, Hawaii
    MARSHA BLACKBURN, Tennessee          CORY A. BOOKER, New Jersey
    ERIC SCHMITT, Missouri               ALEX PADILLA, California
    KATIE BOYD BRITT, Alabama            PETER WELCH, Vermont
    ASHLEY MOODY, Florida                ADAM B. SCHIFF, California

                 Kolan Davis, Chief Counsel and Staff Director
             Joe Zogby, Democratic Chief Counsel and Staff Director

                  Subcommittee on Federal Courts, Oversight,
                       Agency Action, and Federal Rights

                             TED CRUZ, Texas, Chair
    LINDSEY O. GRAHAM, South Carolina    SHELDON WHITEHOUSE, Rhode Island,
    MICHAEL S. LEE, Utah                   Ranking Member
    THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut
    JOHN KENNEDY, Louisiana              MAZIE K. HIRONO, Hawaii
    ERIC SCHMITT, Missouri               ALEX PADILLA, California
                                         PETER WELCH, Vermont

                    Michael Berry,  Republican Chief Counsel
                     Claire Kim,  Democratic Chief Counsel

                        Subcommittee on the Constitution

                         ERIC SCHMITT, Missouri, Chair
    JOHN CORNYN, Texas                   PETER WELCH, Vermont,
    MICHAEL S. LEE, Utah                   Ranking Member
    TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
    JOSH HAWLEY, Missouri                MAZIE K. HIRONO, Hawaii
    JOHN KENNEDY, Louisiana              CORY A. BOOKER, New Jersey
    MARSHA BLACKBURN, Tennessee          ALEX PADILLA, California
                                         ADAM B. SCHIFF, California

                     Ethan Harper, Republican Chief Counsel
                    Ryan Ferguson, Democratic Chief Counsel

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Grassley, Hon. Charles E.
        Prepared statement...........................................    44
    Durbin, Hon. Richard J...........................................     8
    Cruz, Hon. Ted...................................................     1
    Schmitt, Hon. Eric...............................................     4
    Whitehouse, Hon. Sheldon.........................................     3
    Welch, Hon. Peter................................................     6

                                   WITNESSES

    Alicea, J. Joel..................................................    17
        Prepared statement...........................................    49
        Responses to written questions...............................    65
    Blackman, Josh...................................................    14
        Prepared statement...........................................    52
        Responses to written questions...............................    69
    Shaw, Kate.......................................................    15
        Prepared statement...........................................    56
        Responses to written questions...............................    74

                                    APPENDIX

    Items submitted for the record...................................    79

                                 THE SUPPOSEDLY
                          ``LEAST DANGEROUS BRANCH'':
                            DISTRICT JUDGES V. TRUMP

                                  ----------

                             TUESDAY, JUNE 3, 2025

                          United States Senate,
            Subcommittee on Federal Courts, Oversight,
     Agency Action, and Federal Rights, joint with the,
                              Subcommittee on The Constitution,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittees met, pursuant to notice, at 2:36 p.m., in
    Room 226, Dirksen Senate Office Building, Hon. Ted Cruz, Chair
    of the Subcommittee on Federal Courts, Oversight, Agency
    Action, and Federal Rights, and Hon. Eric Schmitt, Chair of the
    Subcommittee on The Constitution, presiding.
        Present: Senators Cruz, Schmitt [presiding], Whitehouse,
    Welch, Hawley, Kennedy, Blackburn, Blumenthal, Hirono, Booker,
    and Schiff.
        Also present: Senator Durbin.

                  OPENING STATEMENT OF HON. TED CRUZ,
                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Chair Cruz. Good afternoon. I hereby call to order this
    hearing on ``The Supposedly `Least Dangerous Branch': District
    Judges v. Donald J. Trump.'' This hearing is a joint
    undertaking by the Subcommittee on The Constitution and the
    Subcommittee on Federal Courts because our country is facing a
    constitutional crisis, a full-blown judicial assault on the
    separation of powers that strikes at the very foundation of the
    republic.
        What we are witnessing is the rise of judicial lawfare from
    the bench. One unelected district judge sitting in a courtroom
    in San Francisco or Boston or Baltimore can now issue a
    nationwide injunction that ties the hands of the President of
    the United States for all 330 million Americans. That is not
    law; that is judicial tyranny.
        President Donald Trump was elected by over 77 million
    Americans with a constitutional mandate to govern. These
    district judges, they were not elected. They were appointed by
    one individual and confirmed not to legislate, not to govern,
    but to apply the law. And yet, far too many of them have
    abandoned that role. They've have stepped off the bench and
    into the political arena, issuing sweeping edicts that impose
    their policy preferences on 340 million Americans.
        Let's walk through just a few of the most egregious recent
    examples. Economic policy: In New York City, the Court of
    International Trade struck down all of President Trump's
    tariffs under IEEPA, declaring that they exceeded executive
    authority. It was not judging; it was judges replacing the
    President's judgment on declaring a national emergency. And, of
    course, that ruling was almost immediately stayed by the court
    of appeals.
        Deportation policy: In Baltimore, the chief judge for the
    District Court of Maryland issued an order preventing the
    removal of illegal aliens detained anywhere in the country,
    granting 2 days of automatic protection to anyone who files a
    habeas petition in Maryland, all without a hearing or legal
    findings. This single Maryland judge dictated national
    deportation policy and then tried to claw back the damage by
    amending the order. As Chairman of the Subcommittee on Federal
    Courts, I am investigating this overreach, and I have sent a
    letter to the Judicial Conference of the United States.
        But the judges did not stop there. In D.C., a judge blocked
    the Federal Government from requiring proof of citizenship to
    vote, overriding election integrity laws across all 50 States.
        In Boston, a judge weighed in on birthright citizenship,
    deciding a question of nationwide consequence for millions of
    illegal aliens, despite the plaintiffs being solely one
    pregnant mother and two nonprofit organizations. That is
    absurd. That is policymaking and legislating. That is not
    adjudication.
        In Boston, a different judge blocked a Department of Energy
    rate cap, handcuffing efforts to lower taxpayer costs for
    energy research.
        In Rhode Island, a judge ordered the Federal Government to
    immediately disburse tens of millions of dollars under the
    Inflation Reduction Act and other programs. The Department of
    Energy alone was forced to release $50 million by judicial
    fiat.
        In San Francisco, a judge mandated that the Office of
    Personnel Management rehire all terminated Federal workers and
    restricted future firings, effectively turning the judiciary
    into an H.R. department.
        Yet another Maryland judge halted orders intending to stop
    funding for institutions mutilating minors through so-called
    gender transitions. These deeply consequential decisions were
    blocked, not by voters, not by Congress, but in each instance
    by one unelected judge.
        And it doesn't stop there. Since President Trump returned
    to office in January, there have been over 40 universal
    injunctions issued against the Federal Government. That is in 4
    months. Thirty-five of those 40 came from the same 5 judicial
    districts. Let's put this into context. In the first 150 years
    of the republic, zero nationwide injunctions were issued. Zero.
    That is for 150 years. In the entirety of the 20th century, 27
    nationwide injunctions were issued. That is over 100 years
    [points at poster].
        [Poster is displayed.]
        Under Presidents Bush, Obama, and Biden combined, 32
    nationwide injunctions. Under President Trump's first term, 4
    years, 64 nationwide injunctions, and now in just 4 months, we
    are already over 40. In 4 months, the Trump administration has
    seen more nationwide injunctions than the entirety of the 20th
    century and more nationwide injunctions than Presidents George
    W. Bush, Barack Obama, and Joe Biden combined. This is not
    normal. This is not justice. This is an orchestrated campaign
    of judicial obstruction.
        [Poster is displayed.]
        Joe Biden, when he was President, nominated to the bench
    radicals. I have said only slightly tongue-in-cheek that Joe
    Biden did something I used to think was impossible. He made me
    miss Barack Obama. But by comparison, the Biden judicial
    nominees were far more extreme and radical than they were under
    Obama. They sought out radicals who would implement
    policymaking from the bench, and they are doing precisely that.
    That is not democracy, and that is not our Constitution.
        This hearing is to highlight the effects of this judicial
    tyranny, of single judges deciding they know better when it
    comes to policy than do the voters of America. We need to
    defend democracy.
        And with that, I recognize Senator Whitehouse.

             OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
             A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

        Senator Whitehouse. Thank you, Senator Cruz.
        When I Chaired the Subcommittee on Federal Courts, we held
    hearings on the influence on our judiciary of dark money from
    the fossil fuel industry and from creepy billionaires. My
    Republican colleagues weren't interested in helping solve that
    problem, but those hearings were based on facts. Years of
    financial disclosures showed a secret billionaire gifts program
    for amenable Supreme Court justices. Written evidence suggested
    a justice may have failed to pay taxes on a $270,000 loan that
    was forgiven, and that false statements were made about a
    yacht. A mountain of evidence revealed President Trump
    outsourced to billionaires and their dark money fixer, Leonard
    Leo, the selection of his judges and Supreme Court justices,
    which President Trump admitted just last week. Apparently, Leo
    also, and I am quoting Trump here, ``openly brags'' about
    controlling the judges his creepy billionaires got appointed.
        This hearing will be different. A lot of hypocrisy about
    nationwide injunctions against the Trump administration after
    Republican colleagues cheered the nationwide injunctions that
    courts issued against the Biden administration. Indeed, some
    colleagues filed lawsuits asking for nationwide injunctions
    against the Biden administration, but now they are shocked,
    shocked that there are nationwide injunctions.
        Here are some facts everyone should bear in mind during
    this hearing. Fact number one, Donald Trump's administration is
    engaged in unprecedented lawlessness, period. In less than 5
    months, President Trump has issued almost as many Executive
    orders as President Biden did during 4 years in office. Many
    are flat out on their face illegal, as any first-year law
    student could tell you.
        Trump tried to end 14th Amendment birth rights citizenship.
    He tried to punish law firms' First Amendment rights to
    associate with his perceived political enemies. His fossil fuel
    minion at OMB, Russ Vought, withheld millions of dollars that
    Congress had appropriated under Article I. More than 20 years
    ago, originalist icon Scalia wrote about how illegal that is.
        The madcap pace and roughshod lawlessness of Trump's
    executive actions mean district judges across the country are
    striking them down, not because of judicial obstruction,
    because he is breaking the law. Hearings like this prop up a
    narrative that bad courts are stopping dear leader Donald Trump
    because some cabal of Democratic judges is out to get him.
    Wrong. The reality is much simpler. He is breaking the law and
    doing it a lot, and judges are doing their job.
        It is not just me saying that. Trump-appointed judges from
    across the country have struck down his illegal actions,
    holding, for instance, that Trump can't punish the AP for its
    reporting, that his misuse of the Alien Enemies Act is illegal,
    and that the administration can't withhold billions of
    appropriated public health funds. Trump judges, hardly a
    liberal conspiracy.
        As it tries to prop up Trump's illegal orders, the MAGA
    Justice Department is fast destroying its reputation with
    judges who've have said about DOJ arguments, ``bad faith,''
    ``shoddy,'' ``an admitted lack of any evidence whatsoever,''
    ``deliberate evasion,'' shocking not only to judges but to the
    intuitive sense of liberty that Americans far removed from
    courthouses still hold dear. And the prospect of contempt
    findings looms.
        Fact number two, failing in court, Donald Trump and his
    allies attack judges and their families. Trump has called
    judges who ruled against him communists, USA-hating, and
    monsters. A Republican in Congress put up a wanted poster with
    judges' faces outside his office. Elon Musk and Laura Loomer
    have used X to fire up the right wing's flying monkeys about
    judges, even adding photos of family members in a seemingly
    coordinated campaign to harass and intimidate.
        A test is coming of MAGA Attorney General Bondi. Will she
    let the Marshals Service investigate these threats and their
    orchestration? There is plenty of predication to look into
    conspiracy, aiding and abetting, or RICO enterprise liability.
    Will she let them?
        Which brings me to fact number three. In a 6-week period
    from March through April, 162 judges received threats to
    themselves or family members of harassment or violence, 162. A
    pattern was evident. Many had ruled against Trump and then were
    targeted. The latest tactic is a campaign to send pizzas to
    judges or family members' homes using the name of the murdered
    son of a Federal judge. It is not clear yet who is behind that
    campaign, but it is not hard to figure out the message. Stop
    ruling against Trump or else.
        These attacks have gotten so bad that the Chief Justice
    issued a statement and the Judicial Conference formed a
    Judicial Security and Independence Task Force. Now I would like
    to see some sign that the threats are being duly investigated.
    To the extent that this hearing encourages that animus further,
    it is deeply regrettable.
        Chair Cruz. I thank Senator Whitehouse and now recognize
    Chairman Schmitt.

                OPENING STATEMENT OF HON. ERIC SCHMITT,
               A U.S. SENATOR FROM THE STATE OF MISSOURI

        Chair Schmitt. Thank you. Thank you, Senator Cruz. As
    Chairman of the Subcommittee of the Constitution, I am glad
    that we have convened this hearing.
        Universal injunctions effectively didn't happen for the
    first 200 years of our Constitution, yet they become a fixture
    in our legal system in the last 20, especially when Donald
    Trump occupies the White House. The courts can play an
    important role in reining in an executive branch that is out of
    control. This is especially important when reining in actions
    by unelected, unaccountable bureaucrats who act outside of the
    scope of their congressionally authorized authority.
        But what happens when Article III has no limits? As listed
    in the hearing's title, Alexander Hamilton called the Judiciary
    the ``least dangerous branch'' in Federalist 78. And
    historically, in Federalist 78, historicals was responding to
    the Anti-Federalist Brutus, who was raising the alarm bell over
    the seemingly unchecked power of Article III to subvert the
    will of the people and the rights of citizens.
        Hamilton responded that judges will be forced to behave
    because nothing guarantees that their orders are enacted.
    Judges can't raise an army. They can't collect taxes or duties.
    As Hamilton said, the Judiciary must ultimately depend on the
    aid of the Executive branch to enforce its judgments. To date,
    the Trump administration has followed every court order,
    enforced every judgment. It is no one's desire to put
    Hamilton's theory into practice.
        That is why this hearing is so important. We are not a
    juristocracy. We do not want the Judiciary to subjugate itself.
    We want to keep it from subjugating others. I agree with
    Hamilton that there is no liberty if the power of judging is
    not separated from the legislative and Executive powers. But
    this runs both ways. There can be no Democratic accountability,
    no Republican government with an overly activist judiciary that
    allows over 600 judges to wield limitless power.
        One particularly troubling example, district court judges
    have not been assigned cases randomly or transparently. In
    March, Chief Justice Boasberg, right here in D.C., has found
    himself into four major Trump cases, a statistical
    impossibility. Boasberg took over the Alien Enemies Act and
    ordered planes to be turned around in the dead of night,
    despite not being the emergency judge on duty that night. It
    seems clear that, as chief judge, he has play and he wants to
    be able to grab cases for himself.
        I have had firsthand experience with this non-random case
    assignment in our Federal appellate court system. When I was
    attorney general in Missouri, I often found myself litigating
    in the Eighth Circuit, a circuit of unique makeup. Of the 11
    judges in the circuit, 10 had been appointed by Republicans.
    Yet, the one Democrat appointee, Judge Jane Kelly, found
    herself hearing nearly every political sensitive case in the
    circuit. Time after time, case after case, miracle after
    miracle, for the Democrats, Judge Kelly would be there for
    nearly every politically sensitive case.
        This was not due to the good luck of Judge Kelly. The
    circuit clerk's office, which assigned cases to appellate
    panels, was filled with her former clerks and ideological
    compatriots. In practice, they set the nationwide policy by
    rigging case assignment.
        Another issue is the universal injunction is a judicially
    created remedy while Congress set up a procedure for group
    relief under Rule 23. As Solicitor General John Sauer recently
    argued compellingly, the proper avenue for group relief is
    under Rule 23 class actions. Rule 23 was designed to ensure a
    structured and fair approach to broad legal challenges. I am
    hopeful that the Supreme Court will curb injunctions to restore
    proper judicial limits and respect the separation of powers. A
    district court or district judge blocking deportations is as
    absurd as directing military strategy. This is activism, not
    judgment, not the rule of law, and it undermines the voters'
    mandate to secure our borders.
        Enough is enough. We must act here in the Senate to fix
    these issues. Article I isn't alone in this. The Judicial
    Conference and the Supreme Court must get their houses in order
    as well. Does our Constitution establish a judiciary that
    resolves cases or sets policy? In this Committee, do we confirm
    judges to take the bench or to take the podium? The Founders
    clearly intended the former. It is time for a reset.
        The American people elected President Trump to secure our
    border and restore our Nation. I look forward to the testimony
    of the professors, and I urge this Committee to advance reforms
    that uphold the separation of powers.
        Chair Cruz. Thank you. I now recognize Ranking Member
    Welch.

                 OPENING STATEMENT OF HON. PETER WELCH,
                A U.S. SENATOR FROM THE STATE OF VERMONT

        Senator Welch. Thank you very much.
        You know, the concrete issues of a universal injunction or
    forum shopping are things that we can address, but there is a
    context that we are all operating in, and this is where I
    disagree with my colleagues, particularly Senator Cruz and his
    recitation of what he saw as a judicial rampage. This moment we
    are in in our country is testing whether the separation of
    powers, three co-equal branches of government, shall endure.
    That is really the question.
        We have seen an abdication of constitutional responsibility
    by the Congress. It is appalling. Ceding to a President the
    ability to impound funds, something that was declared
    unconstitutional in the Nixon doctrine; ceding to the President
    tariff authority, which in the Constitution belongs to the
    policymakers in Congress, just two examples of Congress ceding
    its constitutional authority. That's done willingly by my
    colleagues in the House and some in the Senate. We should
    reassert our authority.
        But the second leg of that, the transfer of authority to
    the Executive, is the rampant attack on the judiciary. And
    Senator Cruz gave some examples of what he thought was judicial
    overreach. Each one of those examples, as I see it, was the
    judges doing their job. They disagreed. And when they
    disagreed, it was asserted by the President and by the Attorney
    General that they were monsters, they were renegades, they were
    out of control. It was an ad hominem attack because judges were
    doing their jobs.
        And I will say we can deal with the forum shopping, which
    is something the private bar gets involved in. We can deal with
    universal injunctions. But the all-out assault on judges
    because they make decisions, which is the job they have to do.
    And the decision is, has a President exceeded his authority?
    The decision is, has the Congress passed a law that deviates
    from constitutional requirements?
        Those are so profoundly important to keep that separation
    of powers and to keep the competition between the three
    branches so that we don't have absolute power vested in a
    single person, and that is the Chief Executive.
        So when Senator Cruz, you talk about a judge making this
    decision about keeping somebody here, it is called due process.
    I am for due process. When we talk about judges striking down
    under the international trade agreement, whether the President
    has authority to set these tariffs, and it is a three-judge
    decision, one appointed by Trump, one appointed by Obama, one
    appointed by Reagan, and they say the President didn't have
    authority, I would say that is the judges doing their jobs.
        But what is most profoundly important for the well-being of
    our country is that the Congress reassert its authority to pass
    laws to restrict the Executive or to empower the Executive, but
    not to cede our authority to the Executive ever. And it is our
    responsibility to do every single thing we can to validate the
    legitimate exercise of the decisionmaking authority of the
    judiciary.
        I look forward to this hearing and the testimony of the
    witnesses. Thank you.
        Chair Cruz. Thank you. I would make two brief observations.
    Number one, it is interesting, as our Democrat colleagues
    defend these nationwide injunctions, that neither of them made
    any reference to the fact that the number of nationwide
    injunctions issued in the first 4 months is greater than the
    entire 20th century and is greater than all of the nationwide
    injunctions issued against Bush, Obama, and Biden combined, nor
    did they address the disturbing fact that of the 40 universal
    injunctions that have been issued in the last 4 months, 35 of
    them came from the same five judicial districts.
        There is a reason for this. Blue State attorneys general
    and radical leftist groups are seeking out affirmatively
    radical judges who they know will impose their own policy
    preferences. If it were simply, as our Democrat colleagues
    said, judges following the law, then you wouldn't have to keep
    going to the same radical judges over and over and over again
    because judges across the board should do that. But the
    litigants know exactly who the zealots are that are on the
    bench, and that is who they are seeking out.
        I will also point out that the discussion about the urgency
    of protecting the safety of judges, listen, I agree. We should
    protect the safety of every Federal judge, but it is
    interesting because my Democrat colleagues were utterly silent
    during 4 years of the Biden administration when you had violent
    mobs outside the homes of Supreme Court justices, unhappy with
    the Supreme Court's ruling in Dobbs, and the Biden Justice
    Department refused to enforce Federal law and protect the
    justices. And my Democrat colleagues were perfectly happy with
    Supreme Court justices being threatened if they disliked the
    rulings that were coming from the Supreme Court justices.
        Unlike my colleagues, I believe we should protect judges.
    Regardless of whether I agree with them or not, we should
    protect their safety. And every time you hear a Democrat
    Senator talk about protecting judges from acts of violence, you
    ought to ask them, why did they not have a word to say about
    the Biden Justice Department allowing mobs to threaten the
    families and children of Supreme Court justices night after
    night after night while Biden's attorney general refused to
    follow the law?
        And with that, I will recognize the Ranking Member of the
    Full Committee, Senator Durbin.

             OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Senator Durbin. Thank you, Senator Cruz.
        They asked Winston Churchill after World War II how he
    thought history would treat him and his conduct of the war. He
    said, ``I am not worried about it because I plan on writing
    that history,'' which he did.
        Today, we see an example of revisionist history from the
    Chairman, the statement he just made about concern over the
    safety of Federal judges. I cannot remember a single instance
    of what he just described, not one, when there were protests
    and demonstrations before the homes of judges, regardless of
    who appointed them, Republican or Democrat. Our feeling was
    they were all entitled to a guarantee of safety to the best of
    our ability. And that is what I did as Chairman of this
    Committee, and I believe I spoke for the Democrats in that
    approach.
        The title of this hearing says a lot in full, ``The
    Supposedly `Least Dangerous Branch': District Judges v.
    Trump.'' The idea being pushed by my Republican colleagues is
    not only that the judicial branch and district judges are
    dangerous, but they are dangerous for the plain and simple
    reason that some judges have had the audacity to rule against
    President Trump. When the Chairman from Texas starts talking
    about the number of times they have been ruling by the court, I
    have three words for him, flood the zone, flood the zone.
        When Steve Bannon was asked, what is the policy, what is
    the strategy of the new Trump administration? We are going to
    flood the zone, and they did. More Executive orders issued by
    this President in the beginning of his Presidency than any
    President in history, leading to more court challenges than any
    President in history. It seems pretty logical to me.
        By framing the hearing as they have, my Republican
    colleagues have shown their hand. This hearing is not really
    about policy or legal issues. Instead, it is about challenging
    the authority and legitimacy of the judiciary. They are showing
    their undying loyalty to their leader, the President.
        This hearing is merely the latest episode in an ongoing
    effort by President Trump and his allies to undermine the
    judiciary and intimidate judges who dare to rule against them.
    In March, the President demanded the impeachment of a Federal
    judge simply because he ruled against his administration,
    calling him quote, and I quote--I want you to hear these
    words--``a radical left lunatic, a troublemaker, and
    agitator.'' In May, President Trump referred to judges who
    ruled against his administration as ``communist radical left
    judges.'' Two days ago, the President posted, ``If the courts
    somehow rule against us on tariffs, which is not expected, that
    would allow other countries to hold our Nation hostage with
    their anti-American tariffs that they would use against us.
    That would mean the economic ruination of the United States of
    America.''
        These statements that I have just read are not normal. It
    is difficult to imagine either President Bush, President Obama,
    or President Biden using such unhinged, bombastic, and childish
    language or calling for the impeachment of a judge simply
    because that judge ruled against his administration. The reason
    it is difficult is because Obama, Biden never did anything like
    this. But imagine if they had and how Congressional Republicans
    would have responded. They would have shouted about it from the
    rooftops, posted furiously on social media, and the only person
    they would have considered impeaching would have been the
    President himself.
        But because this President is a Republican, because the
    President and his allies go after anyone who dares to speak up,
    because fear of political retribution is now at the core of
    this MAGA world, my Republican colleagues have been silent as
    the President has made the statements he has about judges.
    Instead of rushing to defend the judiciary and our system of
    government, they are rushing to defend the President.
        While my colleagues on the other side may try to make it
    appear as though decisions of district courts against the
    President are somehow dangerous, in reality, it is the attacks
    on the judiciary itself that are dangerous to both the rule of
    law and to the actual judges themselves. I could go through
    chapter and verse of Federal judges who have been intimidated
    physically. In fact, deaths have occurred in the Northern
    District of Illinois. One of my judges, she is now retired,
    lost her husband and her mother to a litigant who attacked her
    at her home. It is serious.
        I don't think it is a mere coincidence this spike in
    violence against judges coincided with increasingly harsh
    rhetoric against the same judges and the President's personal
    call for the impeachment of a Federal judge on March 18. Some
    judges and family members have received threats in the form of
    hundreds of anonymous pizza deliveries to their home. Pizza
    deliveries? These deliveries are an effort to demonstrate that
    those seeking to intimidate a targeted judge know exactly where
    those judges live.
        Nearly a month ago, I sent a letter--a month ago, a letter
    to the Attorney General Bondi and FBI Director Patel asking
    them to investigate this effort with the pizza deliveries and
    other threats against Federal judges and to provide information
    on steps they are taking to protect those judges and their
    families. I did not designate just Democratic-appointed judges
    or Republican-appointed judges, but all judges. Showing the
    priorities of this administration, I am sorry to say, I have
    yet to receive a response from either the attorney general or
    the director of the FBI.
        In the meantime, I ask my Republican colleagues to join me.
    Let us recognize that violence begets violence. Threats of
    violence, whether from the right or left of the political
    spectrum, are never, never acceptable. People are welcome to
    debate the merits of any particular judicial decision, but we
    cannot condone personal attacks and threats against judges who
    rule against this administration, and we can't allow partisan
    politics or the latest outrage from the President to undermine
    the judicial branch in our constitutional order. I yield.
        Senator Booker. Mr. Chairman, would you indulge me for a
    moment?
        Chair Cruz. We indulge you every moment.
        Senator Booker. I appreciate that act of generosity.
        It is just something you said that I think is actually
    dangerous and should be addressed, and you are welcome. But
    when Judge Daniel Anderl was killed in New Jersey, the
    Republican colleagues in the Senate, their outpouring of
    support, their outpouring of concern, their willing to work
    together on a bipartisan bill was extraordinary. It shows the
    truth of this institution that, despite some of the fiery
    rhetoric that you were sowing, we are really working in
    bipartisanship.
        Cornyn and Coons, after the incidents you are talking
    about, got together and actually passed a bill to better
    protect our Supreme Court justices, many of whom are friends of
    ours. You know, Gorsuch and I disagree on a lot of stuff. I
    knew his wife before he did. We studied together at Oxford.
    This implication that there was silence when there were threats
    on their people's houses is absolutely absurd. I remember the
    rhetoric and the comments, the concern from Coons. I actually
    distinctly remember you, Chairman, more than once condemning
    those attacks on Republican-appointed jurists.
        To say things like that feeds just the partisanship in this
    institution and feeds the fiery rhetoric, and it is just plain
    not true. It is just plain not true. And I think you know that,
    but we can pull from the record from my colleagues in real
    time, literally days afterwards, condemning it.
        There is a lot of substantive things to say here, but to
    think that the lack of humanity when people's homes are being
    threatened was not in existence, I think that is unfair and
    really concerns me that you would say that in the way that you
    did.
        Chair Cruz. Well, I thank my colleague from New Jersey.
        I will note, as John Adams observed, that facts are
    stubborn things. And it is existing Federal law, 18 USC Section
    1507, that makes it a crime to protest at a judge's home. And
    the law provides, ``Whoever, with the intent of interfering
    with, obstructing, or impeding the administration of justice,
    or with the intent of influencing any judge, juror, witness, or
    court officer, in the discharge of his duty, pickets or parades
    in or near a building housing a court of the United States, in
    or near a building or residence occupied or used by such judge,
    juror, witness, or court officer, or with such intent uses any
    sound-truck or similar device or resorts to any other
    demonstration in or near any such building or residence, shall
    be fined under this title or imprisoned not more than 1 year,
    or both.'' That is Federal criminal law.
        Night after night after night, angry mobs were outside the
    Supreme Court justices' homes. And in the entire course of it,
    the Biden Justice Department prosecuted nobody. We had the
    attorney general sitting at that table and multiple Republican
    Senators asked him, why are you not enforcing the law? What
    they are doing is a crime. And my friend from New Jersey said,
    ``It is a lie to say we, the Democrats, condone this.'' I would
    challenge, my friend, find a single Democrat Senator on this
    Committee holding the Attorney General to account for not
    enforcing this law. I was here at those hearings, and I do not
    recall a single Democrat Senator saying to the Attorney
    General, you should arrest these people who are violating the
    law, you should protect the judges.
        I agree that there was general language against violence,
    but not a single Democrat Senator that I ever saw in this
    Committee was willing to hold Attorney General Merrick Garland
    to account for flagrantly disregarding the Federal criminal law
    because the Biden administration agreed with the protesters and
    I think wanted those justices harassed at their home.
        Senator Booker. Mr. Chairman, I really appreciate that you
    have now shifted the accusation you made earlier. Your
    accusation was that we were silent in the face of protests at
    Supreme Court justices' homes. Again, we joined together in a
    bipartisan way, not only to condemn that, but to pass
    legislation to extend round-the-clock security protection,
    literally days. It was introduced May 5, passed the Senate in a
    bipartisan fashion on May 9. So if you are saying that we
    didn't criticize Merrick Garland----
        Chair Cruz. Did the Biden DOJ arrest a single person under
    this law?
        Senator Booker. Sir, you are now changing----
        Chair Cruz. No, that is what I said.
        Senator Booker [continuing]. The accusation that you made--
    --
        Chair Cruz. That is what I said.
        Senator Booker. Again, I will pull the record.
        Chair Cruz. Did the Biden DOJ arrest even one?
        Senator Booker. Again----
        Chair Cruz. The answer is no.
        Senator Booker. My point to you is the accusation that the
    Democrats on this Committee do not care about the safety----
        Chair Cruz. All right. So let me ask you this----
        Senator Booker [continuing]. Of Federal judges----
        Chair Cruz. Should the Biden DOJ----
        Senator Booker. I did not interrupt you, sir. I would
    appreciate if you let me finish. I am sick and tired of hearing
    the kind of heated partisan rhetoric, which is one of the
    reasons why we have such divisions in this country. The attacks
    we see from the President of the United States of America
    trolling and dragging judges through is what we should be
    talking about that puts people in danger.
        I am simply taking issue with the claim that you made at
    the top that people on the Democratic side of the aisle do not
    care about the safety and the security of judges and said
    nothing. You said we were silent after people's houses were
    protested. That is a patent lie, sir. We were not silent. We
    took action. We joined in a bipartisan way to protect those
    judges, as was done in a bipartisan way to protect a New Jersey
    judge after their horrific attack at their home.
        So I see you now trying to shift the debate to whether we
    talk to an Attorney General. I am simply taking issue with this
    accusation that somehow we Democrats are so bad because we
    don't call out threats to our judicial colleagues. And that is
    wrong. You could change the argument now that you want, but
    what you said was patently not true and was, in fact, a patent
    lie.
        Chair Cruz. So I do enjoy the fact that my colleague from
    New Jersey raises his voice and says it is a patent lie and
    says he is doing so in defense of lowering the rhetoric. There
    is some irony to doing those two together.
        I'll point out that in the entire course of those remarks,
    Senator Booker did not dispute the central point I made, which
    is the Biden Justice Department arrested zero people,
    prosecuted zero people for violating the criminal law, and
    every Democrat Senator on this Committee was silent about it.
    And this was an ongoing pattern for months.
        And I would note also that the Senator from New Jersey
    clutched his pearls about language threatening judges, and yet
    I do not recall a single Democrat Senator of this Committee
    saying a word when Chuck Schumer went to the steps of the
    Supreme Court and threatened the safety of the Supreme Court
    justices by name, Gorsuch and Kavanaugh, and he said, ``You
    have unleashed the whirlwind, and you will pay the price.'' And
    not a single Democrat Senator had a word to say about this. And
    so their outrage is selective.
        And I will give my colleague from New Jersey a chance to
    just answer a simple yes-no question. Should the Biden Justice
    Department have enforced the criminal law against protesting at
    a justice's home, yes or no?
        Senator Booker. So the rank hypocrisy of Chuck Schumer
    apologizing the next day and you holding that standard for him
    and not for your President, who you actually rightfully
    described when you were running against him in a primary, I
    would love to run those tapes of how you perfectly talked about
    the danger of our President and his rhetoric. But now you are
    failing--in fact blind to the very things you are accusing
    Chuck Schumer of. I don't think Donald Trump would know an
    apology if it hit him in the head. Never has said apologizing.
    So again, you are very, very--sir, very, very deep into the
    waters of hypocrisy in your criticisms of Chuck Schumer.
        Chair Cruz. So let the record reflect that Spartacus did
    not answer the question and did not tell us whether the
    criminal law should be enforced because he knows the answer is
    yes, and he knows that the Biden Department of Justice was
    being wildly political and partisan in refusing to enforce the
    law because they disagreed with the Supreme Court justices'
    rulings.
        I have and also in addition to Senator Durbin, who has
    given his opening statement, I have a written opening statement
    from Chairman Grassley. Without objection, that written
    statement is entered into the record.
        [The information appears as a submission for the record.]
        Chair Cruz. And I will now briefly introduce our
    distinguished witnesses. We have three.
        Our first witness is Professor Josh Blackman, who holds the
    Centennial Chair of Constitutional Law at South Texas College
    of Law in my hometown of Houston, Texas, where he has been
    teaching since 2012. And although Professor Blackman was born
    and grew up in Staten Island, he got to Texas as fast as he
    could. And both of his daughters are proud native-born Texans,
    and I commend you for that.
        He is one of the country's leading voices on constitutional
    law. He has testified before Congress. He is a frequent voice
    in The New York Times, The Wall Street Journal, The Washington
    Post. He, in 2024, was named the Jurist of the Year from the
    Texas Review of Law and Politics, an award that is near and
    dear to my heart since in a previous year I received the same
    award. And he is a senior editor of The Heritage Guide to the
    Constitution, Third Edition, and he has authored three books,
    including An Introduction to Constitutional Law, which became a
    top five bestseller on Amazon.
        Our second witness is Professor Kate Shaw. Professor Shaw
    is a constitutional law scholar and professor of law at the
    University of Pennsylvania Carey School of Law. She joined the
    Penn Carey Law faculty in January 2024 from the Benjamin N.
    Cardozo School of Law, where she also served as codirector of
    the Floersheimer Center for Constitutional Democracy. Her
    scholarship focuses on Executive power, the law of democracy,
    the Supreme Court, and reproductive rights. She has also taught
    courses on administrative law and legislation, as well as a
    seminar on the U.S. Supreme Court.
        Before entering academia, Professor Shaw served in the
    Obama White House Counsel's Office and clerked for U.S. Supreme
    Court Justice John Paul Stevens and Judge Richard Posner of the
    U.S. Court of Appeals for the Seventh Circuit. Her academic
    writing has appeared in the Harvard Law Review, Columbia Law
    Review, Georgetown Law Journal, and other journals. She is
    married to Chris Hayes, a political commentator and host on
    MSNBC.
        And our third witness Chairman Schmitt will introduce. And
    if you can start the testimony, I have got to run to the floor
    and vote, and then I will be back.
        Chair Schmitt. Okay. The third witness is Joel Alicea, and
    he is the inaugural St. Robert Bellarmine professor of law
    director of the Law School Center for the Constitution and the
    Catholic Intellectual Tradition. He has also served as a
    visiting professor at Duke Law School and Notre Dame Law
    School.
        Prior to joining the Catholic Law faculty, Professor Alicea
    practiced law for several years at the law firm of Cooper and
    Kirk, where he specialized in constitutional litigation. He
    previously served as a law clerk for Justice Samuel Alito on
    the U.S. Supreme Court and for Judge Diarmuid O'Scannlain on
    the United States Court of Appeals for the Ninth Circuit.
        Professor Alicea's scholarship has focused on
    constitutional theory, civil procedure, and constitutional law.
    He has been involved in the ongoing discussion on nationwide
    injunctions and the scope of the judicial power, both in the
    academy and in working with the Trump administration.
        And at this point, before you guys give your opening
    statements, it is the tradition of this Committee to be sworn
    in, so if you would please stand and raise your right hand.
        [Witnesses are sworn in.]
        Chair Schmitt. Thank you. Professor Blackman, we will start
    with you.

      STATEMENT OF JOSH BLACKMAN, PROFESSOR OF LAW AND CENTENNIAL
       CHAIR OF CONSTITUTIONAL LAW, SOUTH TEXAS COLLEGE OF LAW,
                             HOUSTON, TEXAS

        Professor Blackman. Thank you. Chairman Cruz, Chairman
    Schmitt, Ranking Member Whitehouse, Ranking Member Welch, thank
    you so much for inviting me to testify. My name is Josh
    Blackman, and I am the centennial chair of constitutional law
    at the South Texas College of Law, Houston.
        The topic of today's hearing is very timely, ``The
    Supposedly `Least Dangerous Branch': District Judges v.
    Trump.'' It is often repeated that we have three coequal
    branches of government, but this isn't true. In Federalist 78,
    Hamilton described the judiciary as the least dangerous branch.
    Unlike Congress, which has the power of the purse, and the
    President has the power of the sword, the courts have mere
    judgment, yet it has been deeply ingrained in our consciousness
    that the courts' foundational role is to balance the powers of
    the elected branches.
        Indeed, Chief Justice Roberts recently boasted that the
    courts ``check the excesses'' of Congress and the Executive,
    but the Chief Justice is incorrect. Indeed, Vice President
    Vance recently explained that Roberts expressed a ``profoundly
    wrong'' sentiment. Or more local to me, Judge Ho in Houston
    aptly observed, ``It is not the role of the judiciary to check
    the excesses of the other branches any more than it is the
    judiciary's role to check the excesses of any other American
    citizen.''
        The question is, who will check the excesses of the
    Executive? At least with regard to the lower courts, you all,
    Congress. The Constitution refers to the Federal district
    courts as inferior courts, yet far too many lower court judges
    seem to have a superiority complex. We are witnessing a never-
    ending onslaught of universal injunctions that make it nearly
    impossible for the executive branch to function.
        So what can be done? We can't look to the courts to check
    themselves. The long history of judicial supremacy teaches that
    judges of all stripes, conservative and progressive, seek to
    defend and entrench their own institution. The answer to any
    sustainable reform must come from the legislature. To
    paraphrase Madison in Federalist 51, legislative ambition must
    counteract judicial ambition.
        Yet regrettably, most debates about judicial reform get
    bogged down in politics. When there is a Republican President,
    Democrats love the universal injunction. When there is a
    Democratic President, Republicans love the universal
    injunction. It is predictable.
        Proposals that help only one side of the aisle have a slim
    chance of enactment. The Federal courts cannot be reformed
    through unilateral disarmament. Any reform must be bilateral.
        I published an article called ``Bilateral Judicial Reform''
    in the Texas A&M Journal of Law and Civil Governance. This was
    in 2024, before the election. And I got 10 ideas to fix the
    courts that might appeal to people on both sides of this aisle.
    I will talk about three of them in my limited time today.
        Number one, cases seeking a temporary restraining order can
    be decided by a single judge, but can only give relief to the
    named parties and are limited to 7 days. No longer can a single
    judge issue a universal TRO that lasts nearly a month without
    any appellate review.
        Second, cases seeking preliminary injunction or equivalent
    relief against Federal government and State governments are
    referred to the en banc court, which appoints a randomly drawn
    three-judge panel with two circuit judges and one district
    court judge. There is some value in having a multi-member body
    consider an issue rather than a lone district court judge
    deciding difficult questions. And rather than having two
    district and one circuit, I prefer two circuit, one district
    because these cases tend to focus more on law than on facts.
        The third proposal focuses on the appellate process. Chief
    Justice Roberts recently stated that the appropriate response
    to disagreement with a judge is the normal--he said, ``the
    normal appellate review process.'' As things stand now, the
    Supreme Court has a completely unpredictable and, indeed,
    arbitrary approach to emergency applications. We may all agree
    upon that. Congress can make the appellate review process of
    the Supreme Court ``normal'' again.
        Under my proposal, injunctions of statutes against Federal
    Government and State governments are automatically stayed. The
    stay is automatic. It is not discretionary. And if a three-
    judge panel submits what I call a certificate of division--that
    is, two judges go one way, another judge goes the other way--
    the case is appealed to the Supreme Court's mandatory
    jurisdiction. They can't deny cert. And oral argument is
    decided on an emergency docket timeline, which Congress would
    then set.
        I think these three measures would have bipartisan appeal,
    which I hope they do, and would go a long way to addressing the
    never-ending fights between the President and the judiciary.
        Thank you so much, and I welcome all of your questions.
        [The prepared statement of Professor Blackman appears as a
    submission for the record.]
        Chair Schmitt. Thank you. Professor Shaw.

        STATEMENT OF KATE SHAW, PROFESSOR OF LAW, UNIVERSITY OF
       PENNSYLVANIA CAREY LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA

        Professor Shaw. Good afternoon, Chairs, Ranking Members,
    distinguished Members of the Subcommittees. Thank you for the
    invitation to testify today.
        I understand that the purpose of today's hearing is to
    discuss recent judicial rulings against the Trump
    administration and to situate those rulings in historical and
    institutional context. There is no question that the Trump
    administration has been on a losing streak in Federal court.
    According to the most recent data compiled by Professor Steve
    Vladeck, district courts have ruled against the administration
    in 97 cases to date. That is a large number, but it is a number
    that is best understood in context.
        First, it has to be viewed in the context of the
    unprecedented volume of executive action we have seen from this
    administration. As of May 24, the second Trump administration
    had issued 157 Executive orders. By comparison, the Biden
    administration issued 162, nearly the same number, over the
    course of 4 years. The first Trump administration issued 220
    over 4 years. It is not surprising that this much more
    executive action than previous administrations has drawn more
    challenges.
        The second thing to understand is that these rulings have
    come from judges who sit in district courts across the country
    and who were appointed by Presidents of both parties. Twenty-
    five district courts in 10 circuits, and 73 judges appointed by
    seven Presidents have ruled against this administration.
        That leads me to my third point. These are not about policy
    disagreements. The reason there has been such wide and cross
    ideological consensus over the impermissibility of the
    administration's actions is because the actions have been
    plainly unlawful, and that has been clear to jurists of all
    stripes. Again and again, the administration has acted in
    violation of both the constitutionally required process for
    lawmaking--one that gives Congress primacy--and the rights the
    Constitution commands government to respect.
        To be sure, some of these preliminary rulings against the
    government will be, and some have been, reversed or stayed on
    appeal. But it is telling that there are so many lower court
    losses that the administration has not even bothered to
    challenge. That is true in the birthright citizenship case
    currently pending in the Supreme Court in which the lower
    courts have unanimously ruled against the administration. But
    the administration has not challenged those rulings on the
    merits. Instead, it has asked the court to use the case as an
    opportunity to restrict lower courts' ability to provide
    nationwide relief and to do that in a context in which the
    administration is not even defending the lawfulness of its own
    Executive order.
        Rather than focus on the appellate process or on remedying
    the legal defects that have been revealed by litigation, this
    administration and many supporters have suggested that the
    problem is district judges. The separation of powers is
    dynamic, it is not static, and there is definitely room for
    debate about the proper scope of both Presidential and judicial
    power. At different moments in our history, different
    institutions and actors have sought to significantly increase
    their authority, sometimes in ways that could not be squared
    with the basic design of a constitution committed to limits on
    any single entity's power.
        At this moment, the entity engaging in overreach is the
    executive branch. This administration has been marked by a
    breathtaking degree of Presidential unilateralism that is
    flatly inconsistent with statutes, the Constitution, and over
    two centuries of practice. For that reason, it would be
    profoundly misguided to seek now to curtail courts' authority
    by eliminating or seriously limiting their ability to issue
    nationwide injunctions.
        It is true that the use of such injunctions has increased
    in recent decades, and it is true that injunctions can be
    abused. But at this moment, courts are the only branch of
    government doing meaningful work to check the Executive,
    protecting basic constitutional values, congressional
    prerogatives, and our liberty which the separation of powers is
    designed to safeguard.
        If Congress does wish to wade into defending the separation
    of powers, I would suggest a couple of options. First, it could
    give the President some of the authorities he has tried to
    assert. If Congress agrees that the Federal Government should
    not protect Americans from abusive financial products and
    services, it can pass legislation doing away with the Consumer
    Financial Protection Bureau. If it wants to give DOGE access to
    Americans' sensitive personal information, it can repeal or
    amend the Privacy Act. If it wants the President to be able to
    impose sweeping tariffs based on his determinations of trade
    deficits, it can grant that statutory authority. As far as I
    know, it hasn't done any of that.
        Second, it could turn its attention to judicial security.
    Threats to the physical safety of Federal judges have spiked in
    the last 4 months and so have threats to judicial independence.
    There is a pending proposal that would move the U.S. Marshals
    Service from the executive branch to the judiciary in order to
    ensure that marshals are able to focus effectively on
    protecting Federal judges and executing Federal court orders.
    That would both comport with the original structure of the
    Marshals Service and would align the security practices of the
    judicial branch with those of Congress, right, each branch
    protected by its own security apparatus, not subject to direct
    control by another branch.
        The Federal courts are an important part of our
    constitutional scheme, and at their best, they can serve both
    to make rights meaningful and to enforce and facilitate core
    commitments to popular sovereignty and self-rule. They have not
    always done that, and again, a healthy democracy allows debates
    about the proper scope of judicial authority.
        But many attacks on the judiciary do not appear to be
    animated by a desire for good-faith debates about the limits of
    constitutional authority. They seem instead of a piece with
    other efforts to neutralize any actor or institution that would
    seek to limit this President's power.
        Thank you again for the opportunity to testify, and I look
    forward to your questions.
        [The prepared statement of Professor Shaw appears as a
    submission for the record.]
        Chair Schmitt. Thank you, Professor Shaw.
        Professor Alicea.

    STATEMENT OF J. JOEL ALICEA, ST. ROBERT BELLARMINE PROFESSOR OF
      LAW, DIRECTOR, CENTER FOR THE CONSTITUTION AND THE CATHOLIC
      INTELLECTUAL TRADITION, THE CATHOLIC UNIVERSITY OF AMERICA,
                 COLUMBUS SCHOOL OF LAW, WASHINGTON, DC

        Professor Alicea. Mr. Chairman, Ranking Member, Members of
    the Subcommittee, thank you for the invitation to testify
    today. It is an honor to speak with you.
        While the topic of today's hearing touches on many issues,
    my understanding is that I have been invited to address the
    practice of universal injunctions in particular, and that will
    be the focus of my testimony.
        An injunction is an order from a court directing an entity
    like a government official or a government agency to do
    something or refrain from doing something. Courts have been
    issuing injunctions for centuries, and when injunctions only
    grant relief to a party to the case, they are generally not
    controversial.
        What makes universal injunctions controversial is that they
    purport to give relief to entities that were never made parties
    to the case. In the birthright citizenship cases now before the
    court, for example, a district court judge in Seattle issued an
    injunction forbidding the enforcement or implementation of the
    President's Executive order on a nationwide basis. That means
    that the Executive order cannot be enforced against anyone,
    even though the only parties challenging the order were four
    States and two individuals.
        Now, universal injunctions are damaging to our political
    and legal system for many reasons. The effect of a universal
    injunction is that the policies of the elected President are
    subject to what is effectively a veto by unelected district
    court judges. Because it only takes a single judge to issue a
    universal injunction, the President's opponents only have to
    win one lawsuit to stop the President, whereas the President
    has to win every single lawsuit if he wants to implement his
    challenged policies.
        Because they place unelected district court judges in
    charge of national policy, universal injunctions are a problem
    for Presidents of both parties. This is not a partisan issue.
    But universal injunctions have been used at an astonishing rate
    against President Trump in particular, which is why the issue
    has become so prominent over the last few months. For example,
    during the month of February alone, more universal injunctions
    were issued against President Trump's policies than in the
    first 3 years of the Biden administration.
        The result has been an atmosphere of continuous emergency
    throughout the first few months of President Trump's second
    term. It seems as if every time the President issues a new
    policy, it is almost immediately followed by a district court
    issuing a universal injunction.
        Since the President cannot allow a single judge to dictate
    national policy, the administration has had to seek emergency
    intervention by a court of appeals, and whichever party loses
    in the court of appeals then seeks emergency intervention by
    the Supreme Court. The court has therefore been inundated with
    almost nonstop emergency litigation, partly because of the
    practice of universal injunctions. The seemingly unending
    stream of emergency petitions has forced the court to make
    quick decisions on controversial and contested legal questions,
    often without the benefit of oral argument, adequate briefing,
    or different views expressed by the lower courts.
        This is not how our constitutional system was designed to
    work. Article III, Section 1 of the Constitution vests the
    judicial power of the United States in the Federal courts. As
    understood at the founding, the core meaning of the judicial
    power was the authority to resolve disputes between parties
    according to law. This party-centric understanding of judicial
    power explains why Article III, Section 2 of the Constitution
    extends the judicial power only to cases or controversies, that
    is, disputes between parties. And that is why the Supreme Court
    has repeatedly held that parties do not have standing to seek
    relief beyond what is necessary to remedy the alleged harm to
    the plaintiff.
        Prior to 1789, injunctions were understood to be limited.
    An injunction could only provide whatever relief was necessary
    to redress a plaintiff's asserted injury. The same
    understanding of injunctions prevailed until the mid-20th
    century. Universal injunctions, it bears emphasizing, are a
    20th century development, and the routine use against
    government action only began within the last decade. Thus,
    Federal courts lack the power to grant equitable remedies that
    extend beyond what is necessary to address the plaintiff's
    alleged harm, which is precisely what universal injunctions
    purport to do.
        The American people never gave judges the power to issue
    universal injunctions. Judges have seized that power for
    themselves, and only quite recently in our history. District
    court judges are thus exercising power for which they have no
    constitutional warrant.
        While universal injunctions have damaged the Presidency and
    the Supreme Court, they have done the most damage to democratic
    governance by illegitimately thwarting the will of the people's
    elected representatives. As Justice Elena Kagan once observed,
    ``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.''
        Courts play a vital role in our constitutional system. They
    resolve disputes between parties according to law, and in the
    process of doing so, they say what the law is, as Chief Justice
    John Marshall said in Marbury v. Madison. None of that is at
    issue in the controversy over universal injunctions. What is at
    issue is whether courts can step beyond their limited role of
    resolving legal disagreements between parties and instead
    resolve policy disagreements for the whole Nation. The answer
    to that question should be obvious. No.
        [The prepared statement of Professor Alicea appears as a
    submission for the record.]
        Chair Cruz. Thank you to each of the witnesses for your
    testimony.
        Professor Blackman, prior to 1963, had any Federal court
    issued a nationwide injunction blocking Federal law or
    executive policy?
        Professor Blackman. I am not aware of any.
        Chair Cruz. Would you agree that from the founding through
    the 20th century, the Federal judiciary consistently understood
    its powers to be limited to the parties before the court?
        Professor Blackman. Yes.
        Chair Cruz. And would you agree that the widespread use of
    universal or nationwide injunctions, especially against
    Presidential actions, is a recent development emerging in the
    last decade?
        Professor Blackman. Yes.
        Chair Cruz. That is important history because what we are
    seeing now is not normal, and we have over two centuries of
    history when this didn't happen. It is instead a novel and
    dangerous concentration of judicial power. When a single
    district judge issues a nationwide injunction, are they acting
    as a constitutional judge or as a de facto national
    policymaker?
        Professor Blackman. It is effectively a veto on the
    executive branch.
        Chair Cruz. We have seen district judges block President
    Trump's policies on immigration, energy, birthright
    citizenship, and even federal hiring and firing, all prior to
    any appellate review, all without any input from Congress, all
    from one single judge.
        Let me offer an analogy. Suppose the Federal Government
    approves a plan to cut down trees in a national forest to make
    way for a pipeline. One person who occasionally camps in that
    forest files a lawsuit. The judge not only grants relief to
    that individual, but certifies a putative class action on
    behalf of all campers nationwide and issues an order blocking
    any tree cutting in any forest used by any member of the
    putative class across all 50 States. Professor Blackman, is
    that consistent with the Constitution's design for judicial
    relief?
        Professor Blackman. No, it is not.
        Chair Cruz. Or is that rather a recipe for nationwide
    paralysis based on a single courtroom?
        Professor Blackman. Yes.
        Chair Cruz. Would you also agree that the proper
    constitutional remedy is to address the plaintiff's actual
    injury, not to give one judge the power to halt activity
    unrelated to the case at hand?
        Professor Blackman. Article III requires that.
        Chair Cruz. And how does Article III require that?
        Professor Blackman. Article III speaks of cases and
    controversies. Specific people have specific injuries. You
    cannot grant relief to broad classes who don't have an asserted
    injury before the court.
        Chair Cruz. And if broader relief is truly necessary,
    wouldn't that be better handled by class certification by the
    appellate courts or by Congress, not a lone district judge
    rewriting national policy?
        Professor Blackman. Absolutely.
        Chair Cruz. Can you explain how this pattern of nationwide
    relief not only intrudes on the President's Article II powers
    but also undermines Congress' own lawmaking authority?
        Professor Blackman. What ends up happening is you file many
    lawsuits in many districts seeking parallel relief, and it only
    takes one judge to grant the universal injunction. And once a
    judge grants the injunction, it is off to the races. Unless the
    ruling stayed, the executive branch must immediately halt what
    it is doing. And this has really changed the way the executive
    branch and the courts have operated, as you said, over the past
    decade. And I think the time is ripe to actually address this
    issue and figure a way to stop this sort of insanity. We can't
    leave it to the Supreme Court to figure everything out.
        Chair Cruz. And Professor Blackman, your testimony outlines
    structural reforms that Congress could enact to restore
    balance. Can you explain how requiring a three-judge panel
    drawn from both district and circuit judges would deter
    judicial overreach and restore legitimacy to preliminary
    relief?
        Professor Blackman. Well, this is how Congress ran things
    for much of the 20th century. They stopped in the 1960's and
    1970's. The benefit of a three-judge panel is you have diverse
    voices. In fact, even on this dais, you don't always agree with
    each other. When you talk to each other, you find perhaps the
    closer truth. A single judge acting by himself or herself can
    often be like a god. There is no limitation of what they can
    do. But the benefit is, if you have two circuit and one
    district, you are basically bypassing this next-level review.
    Have the initial panel of three judges and have managed review
    by the Supreme Court. We need to cut out this race to the court
    of appeals, this race to the Supreme Court. Let's compress the
    process and get through it quickly enough so these issues of
    national significance resolve fairly.
        Chair Cruz. And by the way, if the characterization of
    these nationwide injunctions by my Democrat colleagues was
    accurate, if this was simply a result of, in their view,
    Trump's repeated lawless activities, one would assume a three-
    judge panel would find the same ruling on the merits as a
    particular lone district judge. Is that correct?
        Professor Blackman. In theory, but if drawn randomly, I
    think it is less likely. Random draws of three-judge panels
    would be a very good change to see how things would work out.
        Chair Cruz. Well, and much like Sherlock Holmes and the
    lesson he derived from the ``dog that did not bark,'' in this
    case, when we hear our Democrat colleagues talking about this
    is simply enforcing the law, the dog that isn't barking is why
    do they keep going to the same handful of radical judges in
    bright blue districts, and why will every Democrat on this
    panel oppose any effort to require a three-judge panel for a
    nationwide injunction? And the answer is they know fully well
    that a fair panel would reject the vast majority of these
    claims. And at the end of the day, I think too many Democrat
    members of this body want to frustrate the will of the voters
    who reelected President Trump and elected a Republican Senate
    and a Republican House, and they are perfectly happy for lone
    judges to impose their own policy preferences rather than
    respect the Democratic will of the voters.
        Senator Whitehouse.
        Senator Whitehouse. Thank you. It strikes me that what we
    have here is a team that has taken the field and engaged in
    unprecedented numbers of fouls and unprecedentedly flagrant
    fouls. And when the refs blow the whistle on the unprecedented
    number of fouls, the partisans of the team committing the fouls
    call out the referees for the unprecedented number of whistles
    that they blow.
        To try to level set this, let me ask, if you can do a yes
    or no answer, let's try to go right down the panel, yes or no.
    Is it appropriate to call judges USA-hating monsters who want
    our country to go to hell?
        Professor Blackman. No.
        Senator Whitehouse. No.
        Professor Shaw. No, Senator.
        Professor Alicea. In general, no, Senator.
        Senator Whitehouse. And is it appropriate to call judges
    lunatics who do not care even a little bit and could very well
    lead to the destruction of our country?
        Professor Blackman. I don't think so.
        Professor Shaw. No.
        Professor Alicea. No.
        Senator Whitehouse. And is it appropriate to post pictures
    of judges' children with the intent to incite harassment and
    threats?
        Professor Blackman. No.
        Professor Shaw. No.
        Professor Alicea. No.
        Senator Whitehouse. Okay, good. We are off to a level set.
    I will take that.
        Professor Alicea, when you were installed in your chair,
    the announcement was that the chair was made possible through
    the generosity of Leonard Leo, trustee of both the Marble
    Freedom Trust and Catholic University. Is that accurate? Is
    that who funded your chair?
        Professor Alicea. My understanding is that Leonard Leo,
    through the Marble Freedom Trust, directed funds that funded
    the chair. I think that is accurate.
        Senator Whitehouse. And with respect to your chair, Mr.
    Blackman, $1 million was given to fund it through an
    anonymizing organization called DonorsTrust, which has been
    called the ATM of the far right. Do you know who was behind
    that DonorsTrust laundered donation?
        Professor Blackman. I appreciate the question, Senator. I
    would direct all these to my college to answer.
        Senator Whitehouse. I am sorry, first of all, your mic is
    not on.
        Professor Blackman. No, I appreciate the question, Senator.
    I would direct all these questions about this to my college.
    Thank you.
        Senator Whitehouse. My question is actually to you, and it
    is whether you know. Do you know who was behind that?
        Professor Blackman. I appreciate the question. Anonymous
    gifts are as they are, and I appreciate all those questions
    directed to my college.
        Senator Whitehouse. Your college can't answer what you
    know. This is a question to you about what you know. This is a
    Josh Blackman question.
        Professor Blackman. Thank you, Senator.
        Senator Whitehouse. Do you know who funded your chair?
        Professor Blackman. I have answered the question.
        Senator Whitehouse. Yes or no?
        Professor Blackman. Thank you, Senator.
        Senator Whitehouse. You can't say this. Do you realize that
    if you were an expert witness in a judicial proceeding, I would
    be entitled to know who was funding you because it goes to bias
    and conflict, correct? That is basic sort of hornbook trial
    practice, right?
        Professor Blackman. Fair enough, Senator. I----
        Senator Whitehouse. I am right about that. You will agree.
        Professor Blackman. We were invited to testify about
    nationwide injunctions and the like. This is not something I
    was prepared to testify about, so that is my answer for today.
        Senator Whitehouse. Okay. Well, at least we know who funded
    Professor Alicea, and you won't even answer what you know.
        Let me turn to Professor Shaw. Let's just say that this
    activity today is designed to whip up more animus against
    courts and that it adds to the atmosphere of threats that the
    court is now experiencing. I think we are up to, is it 162
    threats to judges, which is pretty impressive. And a lot of
    this has the appearance, at least to me, of looking like it was
    orchestrated, looking like it was instigated, looking like
    there are folks behind it.
        [Poster is displayed.]
        So, presumably, the Marshals Service should be not just
    protecting the judges and their family members, but also
    investigating the sources of the threats. Can you tell us what
    some warning signs would be that the Marshals Service has been
    directed, perhaps by the Attorney General or perhaps by some
    other senior official in the Department of Justice, to not do
    proper investigations and particularly not look into
    orchestration or any effort to gin up these threats?
        Professor Shaw. Senator, I have no information. It strikes
    me that a non-response to your queries or queries from other
    Members of Congress to the Marshals Service or to the
    Department of Justice are concerning. There should be an active
    dialog between the branches about something as serious as the
    security of the third branch.
        And I guess I would just echo what Senator Booker was
    saying earlier. I mean, there have been two relatively recent
    periods when bipartisan legislation was passed to improve
    judicial security after the tragic murder of Judge Salas' son
    and also after the attempted attack on Justice Kavanaugh.
    Judicial security measures on a bipartisan basis quickly passed
    Congress, and I would hope that this is a moment in which broad
    agreement could be reached that it is necessary to do something
    similar.
        Senator Whitehouse. And if it appeared that those were part
    of a larger plan or conspiracy, it would be appropriate for law
    enforcement to look into the question of whether there was a
    larger plan or conspiracy, correct?
        Professor Shaw. Absolutely.
        Senator Whitehouse. Thank you.
        Chair Cruz. I would note that Senator Whitehouse asked two
    of the three witnesses about private donations given to their
    respective law schools but somehow omitted Professor Shaw. And
    I guess I would ask of Professor Shaw, are you aware of what's
    been publicly reported in disclosures that your employer, the
    University of Pennsylvania, from 2013 to 2019 received from
    communist China $67,618,610? Have you seen those public
    reports?
        Professor Shaw. I am sorry, Senator, I have not.
        Chair Cruz. Well, they are publicly reported and $67
    million from communist China. If we are going to just clarify
    the record, let's clarify the record across the board.
        Professor Shaw. If I may----
        Senator Whitehouse. The record----
        Professor Shaw [continuing]. I actually don't hold an
    endowed chair, so I--there was no--I don't have an endowed
    chair personally, so I don't think I was being singled out for
    any reason but that I don't----
        Chair Cruz. But you do work for Penn?
        Professor Shaw [continuing]. Have one. I do work for Penn,
    yes.
        Chair Cruz. Chairman Schmitt.
        Chair Schmitt. Thank you. I suppose to further the analogy
    that Senator Whitehouse gave of reffing a game, I don't think
    anybody has a problem on this side of the aisle with a ref
    calling balls and strikes or calling a foul. The problem is,
    what if the ref's daughter hired the coach? What if the ref has
    money on the game? What if people start to question the
    legitimacy of the ref in the game? We all know what happens.
    People don't watch it anymore. Vegas takes the game off the
    board.
        So it gets to sort of this question of, as I referenced in
    my opening statement with Hamilton, the reason why it is
    supposed to be, you know, the least dangerous branch is it
    relies on the other two branches for enforcement. And the
    Article III branch should be very well aware that if they lose
    legitimacy, they are cooked. And that is why we are having the
    hearing, because people are questioning--how does Judge
    Boasberg--and I would actually ask you, Professor Blackman. I
    will pose this as a question. How in the world does Judge
    Boasberg get a case when he is not the emergency assignment
    judge, he is on vacation in the middle of the night? How can
    that happen?
        Professor Blackman. I don't know. And perhaps even more
    significant, if you read the transcript of the case, he
    basically told the plaintiffs to change their case. They
    brought it one way, he said, no, here, plead it this way. Okay,
    good. Now, I am going to certify class and issue a ruling and
    go tell the plaintiffs--he basically litigated the case on
    behalf of the parties. This wasn't merely a passive bystander.
    He was an active participant.
        Chair Schmitt. It is a statistic impossibility. And I want
    to sort of--I referenced what had been going on in the Eighth
    Circuit. Ten of the 11 appellate judges in the Eighth Circuit
    appointed by Republicans. Amazingly, Judge Kelly ends up on all
    the politically sensitive cases on a panel. It is not possible,
    except for the clerks there in that office or the people that
    work for the clerk's office are populated by her former clerks.
    So these are the kinds of things that this isn't just a new
    phenomenon. This is a concern about activism on the bench that
    has existed for a long time. It is just now on steroids.
        So you talked briefly, and I mentioned it too, sort of Rule
    23 as a more viable option for this, limiting the orders of the
    parties, the rulings of the parties before the court as a case
    in controversy. Those are ways to address this. Are there any
    other structural suggestions that you have? And I also want to
    pose this to Professor Alicea as well.
        Professor Blackman. Sure. I think one urgent need is to
    think about automatic stays. When you have district judges
    granting universal injunctions and they don't stay their
    rulings, there is this frantic race to the court of appeals and
    to the Supreme Court. And the executive branch is not capable
    of actually changing policy on the fly, and that gives rise to
    these attempted contempt proceedings. I would think about if a
    universal injunction is granted or a nationwide class is
    granted, stay their ruling for 24 hours, 48 hours, some limited
    period to at least take an appeal to the appellate court and
    don't let the judge who just ruled against you decide whether
    an appeal should be taken. I think the automatic stay would go
    a long way to addressing these issues.
        Chair Schmitt. Professor Alicea?
        Professor Alicea. I think beyond Rule 23 and the
    enforcement of Rule 23, it is important to address the scope of
    injunctions not just through the non-APA route but also through
    the administrative procedure route under Section 706. So I
    think that to the extent that we are going to really address
    the problem overall, you can't just address universal
    injunctions that are done outside of the context of
    administrative action, but also through the process that the
    APA sets up for challenging agency action.
        Chair Schmitt. Thank you. Professor Blackman, you recently
    wrote an article in May of this year where you state the
    District of Maryland's standing order, that judge that
    automatically blocked deportations upon filing a habeas
    petition without merit review, is pretty clearly designed to
    thwart the Trump administration's immigration policies. Could
    you explain that?
        Professor Blackman. Yes, this is unusual. So the District
    Court of Maryland issued what is called a standing order, which
    is basically an order that applies in all cases. And it says,
    by virtue of filing a habeas petition, a grant of stay is
    automatically issued.
        The Supreme Court has said there is a four-factor balancing
    act to decide whether a stay must be granted. This is
    automatic. And if you actually read this seriously, it is a
    permanent handcuff on the President's authority to deport
    people.
        The judge actually walked it back about a week ago. They
    sort of modified it. Maybe the Judicial Conference just got
    wind of this. But I think there is still an attempt to limit
    the Executive power in ways that have not been done before.
        Chair Schmitt. And it was issued to the government, I think
    it was writ large, right? I mean----
        Professor Blackman. Yes.
        Chair Schmitt [continuing]. This is very unusual.
        Professor Blackman. Right. It wasn't notice given in each
    case. It was by virtue of posting on a website. This rule
    applies universally. There is actually a rule that says any
    ordinance you put on each ECF docket, it can't be done
    globally.
        Chair Schmitt. And I think one of the points of this
    hearing, the Supreme Court has a case in front of it where it
    has an opportunity to rein this in. And I think the Chief
    Justice is very keen to understand the perception of the court.
    It seems to be a good opportunity, I think, probably for the
    Supreme Court to finally weigh in here. Thank you.
        Chair Schmitt. Senator Welch.
        Senator Welch. Just a couple of points I want to make.
    Number one, the effort to get universal injunctions has been
    pursued by litigants, including some of the attorneys general
    who serve on this Committee. I know you did as attorney
    general, sought several universal injunctions.
        Chair Schmitt. Since you referenced it----
        Senator Welch. Yes.
        Chair Schmitt [continuing]. The vast censorship enterprise
    of the Biden administration that a court declared was perhaps
    the biggest offense to the First Amendment in the history of
    the country where there were named parties that were
    specifically enjoined, you mean that case? Yes.
        Senator Welch. I do. My point here is that if there is an
    opportunity out there for a litigant, whether it is a lawyer
    trying to get the judge that he or she thinks is going to be
    the most favorable or an Attorney General trying to get the
    most relief for something that he or she believes in, they will
    do it. So it is up to us if we think that process should be
    adjusted to change it. But it is not a Republican-Democratic
    deal. I mean, it is what litigants do.
        The second thing is, Professor Blackman, you mentioned how
    some of these universal injunctions inhibit the authority of
    the Executive, right? What is the problem with that? I mean,
    what is so great about the Executive having unlimited
    authority?
        Professor Blackman. Well, I will take the Alien Enemies Act
    particularly. This is a statute that has been around for 200
    years. It has been enforced in various times. And historically,
    it has been a very deferential statute. The courts haven't
    scrutinized when it should be enforced, and they haven't told
    plaintiffs to turn around. So I think we are seeing not only
    aggressive use of the universal injunction but also intrusions
    upon the Executive authority.
        Senator Welch. All right. So I get that. And let me just be
    clear. I disagree with you. And I disagree with the Executive
    invoking what I regard as a very discredited law and using it
    to deny due process. So I am on the side of pushing back
    against executive authority, so I don't see that as a big
    problem.
        Professor Shaw, one of the things people here are talking
    about is the class action. And here is my question with it, and
    I want you to address this. I had a small-town law firm, and I
    would have people who walk in, and every once in a while, they
    had a hopeless case that we would take, and we would get them
    relief. And if I had to do that in a four-person law firm and
    certify a class action, I couldn't have taken that case.
        So this so-called remedy of using the class action means
    that those Vermonters or those folks in Washington State or
    wherever who go into a lawyer's office to seek relief, and that
    lawyer's willing to take the case, what are the burdens on that
    law firm if they have to certify it as a class?
        Professor Shaw. Yes. I mean, it seems to me that--let's
    take maybe the birthright citizenship example--arguments that
    challenges can be maintained against this Executive order, but
    they have to be done doing the class action--using the class
    action device, I'm not sure if those are being made in good
    faith. Rule 23 of the Federal Rules of Civil Procedure has
    relatively demanding requirements. The Supreme Court has
    ratcheted up those requirements in a series of cases in the
    2010's. The plaintiffs have to be similarly situated in terms
    of their injury and the kinds of relief that they are seeking.
        And I--you know, the Solicitor General in the Supreme Court
    a couple of weeks ago didn't disclaim the likelihood that they
    would be back before the Supreme Court saying, well, you
    shouldn't even be able to certify a class with respect to this
    Executive order. So it feels to me like a little bit of a
    ``heads we win, tails you lose.'' You can try a class action,
    and we will marshal different kinds of arguments against you
    doing that.
        But it is not as though it is very easy to satisfy the
    requirements of Rule 23. And I think that shifting from these
    injunctions to a pure Rule 23-based regime would disadvantage
    those unable to secure representation to who don't satisfy the
    requirements of class membership and would mean no relief from
    government unlawful conduct.
        Senator Welch. Yes. You know, and that is one of the things
    that is so important, hopefully, to all of us is access to the
    courts for an everyday person in Missouri, Texas, or whatever.
    So you get some lawyers who are just willing to do it because
    it is a neighbor, it is a friend, it is a class they believe
    in. I want them to be able to act and bring that case to court
    and not have to go through the incredible expense.
        On the question of universal injunctions, I mean, are there
    some suggestions you have or forum shopping that you have that
    would expedite or address what you perceive to be some
    legitimate problems that aren't siding with the partisan divide
    on this question?
        Professor Shaw. Thank you for that question, Senator. I do
    think that that single-judge divisions, which allow plaintiffs
    to, with absolute certainty, ensure that they will receive a
    particular judge when they file in a particular division of a
    district, are an enormous problem, right? That forum shopping
    is not exclusive to these single-judge divisions, but it is the
    most serious kind of forum shopping.
        And I should say, as of I think right now, none of the
    orders against the Trump administration have issued from judges
    who sit in single-judge divisions, unlike some of the orders
    issued against the Biden administration. But I do think that
    the Judicial Conference has already endorsed a proposal that
    would essentially eliminate these single-judge divisions. I
    think that is something that we should all be able to get
    behind.
        Senator Welch. Well, you know, I would be willing to work
    with my colleagues on some of these practical questions and
    practical answers where we strip out whether we agree or
    disagree with the particular decision that has been made by the
    court. Thank you. Thank you all.
        Chair Cruz. Professor Shaw, you said Congress had set high
    standards in Rule 23 for certifying class actions. Why would we
    have set high standards for class actions?
        Professor Shaw. So to Rule--I don't think I said that, sir,
    just that the Rule 23 standards are relatively demanding that
    the court has ratcheted up the difficulty of satisfying them.
        Chair Cruz. But why would we set demanding standards for
    class actions?
        Professor Shaw. I'm not sure I'm--you know, the Rules
    Committee produces the rules, so I am not quite sure----
        Chair Cruz. But Congress adopts them.
        Professor Shaw. Yes. Yes. So, I mean, you tell me, sir.
        Chair Cruz. Well, there is a reason we have high standards
    for class actions because it should be difficult to certify a
    nationwide class. And what we are seeing is single judges
    ignoring the Federal rules of civil procedure, ignoring the
    rules Congress has set out for class certification and saying,
    I am just going to issue an injunction to the whole damn
    country, and it doesn't matter if it meets even the bare
    thresholds of the Federal rules.
        Senator Kennedy. Would any of you advise a client to defy a
    Federal court order?
        Professor Blackman. No.
        Senator Kennedy. None of you would? How about you,
    Professor?
        Professor Shaw. I mean, under most circumstances, we follow
    the government, and private parties follow court orders. I
    suppose it's not--I would not rule out ever the possibility
    that a sufficiently egregious order, there should be some
    consideration of whether there is a way----
        Senator Kennedy. So in some cases----
        Professor Shaw [continuing]. I think it's a qualified
    answer, yes.
        Senator Kennedy. In some cases, you would?
        Professor Shaw. In an extremely narrow band of cases, I
    think it would be considered, yes.
        Senator Kennedy. Okay. Do any of you think that nationwide
    or universal injunctions are not being abused?
        Professor Shaw. I'm not sure what the--if I may, Senator,
    I'm not sure what the time horizon of the question is. I don't
    think that--there could be good-faith disagreements about the
    correctness of some of them, but I have not seen----
        Senator Kennedy. I understand----
        Professor Shaw [continuing]. In the last 4 months, abuse,
    no.
        Senator Kennedy. I have read your stuff, and I have read
    your writings. I don't want to get bogged down with this, but I
    have little respect for your opinion because I have read your
    stuff. When someone is in the White House that you agree with
    and someone gets a universal injunction against him, you don't
    like universal injunctions. You called them judges acting like
    they are politicians in robes and judges looking like crass
    political actors.
        But now that President Trump's in the White House, who you
    dislike, you think that universal injunctions taste like
    pumpkin pie. So I have to discount what you say because I think
    you act on your political beliefs, and I worry that that is
    what you are teaching your kids. So I will leave you out of
    that.
        Do you think nationwide injunctions are being abused?
        Professor Alicea. Certainly, Senator, I think that is----
        Senator Kennedy. They are being abused by both sides,
    aren't they?
        Professor Alicea. Yes, Senator.
        Senator Kennedy. Both Republicans and Democrats are forum
    shopping, aren't they?
        [Points at witness.]
        Professor Blackman. Certainly.
        Senator Kennedy. Professor, do you disagree with that?
        Professor Blackman. I think both sides are abusing them. I
    agree.
        Senator Kennedy. Okay. Both sides. There are no clean hands
    here.
        Now, your suggestion is that when a Federal judge issues a
    nationwide injunction, there should be an automatic stay and an
    expedited right of appeal. Is that right?
        Professor Blackman. Yes, sir.
        Senator Kennedy. Do you disagree with that?
        Professor Alicea. I haven't given enough thought to have a
    position on it, Senator.
        [Points at witness.]
        Senator Kennedy. I suspect, Professor, your answer will be
    it depends on who is President.
        Professor Shaw. No, Senator.
        Senator Kennedy. Let me ask you about this. What if we had
    a rule--I was reading an article the other day--I am not
    suggesting it, I just want your opinions--that said if a
    President, any President, issues an Executive order, let's say,
    that clearly violates settled Supreme Court precedent, that a
    Federal judge can't issue a nationwide injunction. For example,
    for example, if a President issued an order that said no one in
    America has right to counsel any longer, included but not
    limited to in a felony case, having the government pay for your
    lawyer if you can't afford it. That clearly violates settled
    Gideon v. Wainwright. In that case, a judge has no authority--
    or does have authority to issue a nationwide injunction. But in
    a case where the law is unclear, a judge should refrain from
    that. Now, obviously, we would have to trust our judges, but we
    are supposed to be able to trust them anyway. What do you think
    about that?
        Professor Alicea. I don't agree with that, Senator, because
    I think universal injunctions transgress the limitations under
    Article III even if the underlying merits are clear.
        Senator Kennedy. I happen to agree with you. I don't think
    there is any basis under Article III, under Supreme Court
    precedent, under the English common law for nationwide
    injunctions. I think politicians have helped judges, and many
    judges are politicians, to just make it up. And many of them
    are like Professor Shaw here. If they like the President, they
    are against nationwide injunctions. If they don't like the
    President, they are for them.
        Professor, let me ask you this while I have you. On April
    22, 2024, you said there are some members of the Supreme Court
    that are evil. Which justices were you talking about?
        Professor Shaw. I will take it your word, Senator. I don't
    recall using that word but----
        Senator Kennedy. All right. Here is what you said. You were
    talking about the majority opinion in Muldrow v. City of St.
    Louis. You said, ``Justice Kagan, I mean, will she be able to
    control the opinion's future distortion by her evil colleagues?
    Probably not.'' Who were you talking about?
        Professor Shaw. Sir, I am very skeptical. There's a--if it
    was a transcription, it was probably a transcription error. I
    do not think I said evil.
        Senator Kennedy. No, you said it. Why don't you own up to
    it? You call some members of the Supreme Court evil. Now, which
    ones do you think are evil?
        Professor Shaw. I would have to refresh my recollection. I
    have been very critical----
        Senator Kennedy. You are embarrassed----
        Professor Shaw [continuing]. Of some members of the Supreme
    Court.
        Senator Kennedy [continuing]. That you made that statement,
    aren't you?
        Professor Shaw. I--I'm----
        Senator Kennedy. You are an officer of the court.
        Professor Shaw. Senator, it doesn't sound like something
    that I would say.
        Senator Kennedy. You know what I am embarrassed at? That
    you are teaching our kids.
        Professor Shaw. I don't refer to Supreme Court justices as
    evil----
        Senator Kennedy. You did right here----
        Professor Shaw [continuing]. In the classroom, sir.
        Senator Kennedy [continuing]. On your podcast April 22,
    2024----
        Professor Shaw. Okay. Well----
        Senator Kennedy [continuing]. Big as Dallas. And you are an
    officer of the court, and you are here advising us to be
    respectful of Federal judges. And you say they are evil members
    of the U.S. Supreme Court. Gag me with a spoon. You are part
    the problem in all of this.
        Chair Cruz. Thank you, Senator Kennedy.
        Senator Durbin.
        Senator Durbin. So I am going to give the panel members an
    opportunity to respond to a question posed by Justice Sotomayor
    during the oral arguments on the birthright citizenship bill.
    And she said, imagine a new--I am paraphrasing. Imagine a new
    President takes office and decides, because of the epidemic of
    gun violence in our country, to issue an Executive order
    announcing that he will deploy the military to seize the guns
    of every gun owner across the country. That Executive order
    would be swiftly challenged in a Federal district court or more
    likely in several district courts. Should a district court be
    allowed to issue a nationwide injunction to at least
    temporarily prevent the enforcement of that Executive order? I
    would like each of you to respond. Professor Blackman?
        Professor Blackman. I actually addressed that point in a
    blog post. We actually have history of someone in this country
    disarming everyone. His name was General Gage, and that was not
    fought with Rule 23.
        Senator Durbin. So your answer?
        Professor Blackman. I don't--if the President can't take
    everyone's gun in this country, I don't think the remedy would
    be in the courts.
        Senator Durbin. Professor Shaw?
        Professor Shaw. Yes. I mean, I think that whatever the
    constitutional right is, whether, you know, it's a Second
    Amendment, a First Amendment, a due process right, if a
    President tries to do something that is in clear violation of
    settled law, whether we like the law or not, that--an
    injunction is an appropriate remedy.
        Senator Durbin. Professor Alicea?
        Professor Alicea. No, Senator. I have written in support of
    the Second Amendment in many fora, but I don't think that a
    judge could issue a universal injunction under those
    circumstances. Of course, the challengers could seek
    certification under Rule 23 and then try to pursue class-wide
    relief.
        Senator Durbin. So do you think it is reasonable to expect
    every single person affected by an Executive order like the one
    I described to seek relief through Rule 23 or to file their own
    lawsuit to seek relief?
        Professor Alicea. I don't think that would be necessary,
    Senator. If you had one person who sought class certification
    successfully, that would be sufficient. But even if you had
    failures to class certification, once you get to the Supreme
    Court and the Supreme Court issues a binding decision, that
    precedent would bind all the lower courts. So it's not a
    question of whether you get to a uniform rule. It's just a
    question of when you get to a uniform rule and by what route.
    But those limitations on the route matter under Article III.
        Senator Durbin. There has been a lot said during the course
    of this hearing about the possibility or likelihood that judges
    are being selected for this process to review the decisions of
    the Trump administration on a political basis. Professor Shaw,
    I noted--I am not sure you read this into the record, but you
    said the--according to a recent analysis by Professor Bonica,
    the Trump administration has lost 80.4 percent of the time
    before district judges appointed by Democratic Presidents, 80.4
    Democrats, 72.2 before district judges appointed by Republican
    Presidents. Who is Professor Bonica?
        Professor Shaw. He is a political scientist at Stanford.
    And yes, so that is my written statement. And I think it does
    suggest that this is--it cannot be reasonably just attributed
    to policy antipathy. This is about a pretty broad consensus
    about the lawlessness of many of the administration's actions.
    And I think both Democratic and Republican appointees have seen
    that.
        Senator Durbin. That is my impression as well. This is not
    a stacked deck, a statistical impossibility. It is a fact. This
    President has issued more orders with more controversy than any
    President in recent memory.
        I have only been to Amarillo once when I was a younger
    person. I am sure it is a lovely city, but it turns out that
    the Amarillo division of the Northern District of Texas has
    gotten quite a bit of publicity. It turns out that people been
    filing lawsuits there because there is only one judge who sits
    in that division, Judge Matthew Kacsmaryk, who I remember
    appearing before the Committee. Litigants knew Judge Kacsmaryk
    would be assigned to the cases and viewed him as favorable to
    their arguments.
        So the argument that is being made that venues shopping,
    forum shopping is on one side of the table, it is clearly on
    both sides of the table. And Judge Kacsmaryk is pretty well
    known for the way he rules. Professor Shaw, do you have any
    observation on that?
        Professor Shaw. Yes. I mean, as I said in response to
    Senator Welch, I actually think that those single-judge
    divisions, like the one in Amarillo, Texas, where Judge
    Kacsmaryk sits, are a genuine problem. But none of the
    injunctions against the Trump administration have issued from
    judges who sit in those single member districts, so I am not
    even sure it's fair to say that that's a problem we are seeing
    now and we saw previously. We actually aren't seeing it now,
    but I do think that, regardless of who the President is, these
    single-judge divisions are a problem that Congress would be
    well served to address.
        Senator Durbin. Thank you very much. Thank you, Chairman.
        Chair Cruz. Thank you. Senator Hawley.
        Senator Hawley. Thank you very much, Mr. Chairman--Mr.
    Chairman. It is great to have this hearing. Thanks for calling
    it. Thanks to all of our witnesses for being here. Professor
    Shaw, nice to see you again.
        Let me just start with you, if I could, Professor Shaw. You
    talked about the fact that there have been lots of rulings
    against the Trump administration. That is absolutely
    statistically true. I disagree with almost all of them. In
    fact, I think all of them. But the issue of this hearing really
    isn't the rulings, is it? It is the remedies. Would you agree?
    And those are distinct things. You may think that the ruling is
    quite correct, but that is actually not what we are talking
    about here today. We could have a hearing on that. Maybe we
    should. But we are talking today about the remedy.
        And the question is, is a remedy that binds parties who are
    not before the court, is that an appropriate thing? I mean,
    aren't you concerned about judges binding nonparties in their
    remedies? You may love the ruling, but even if you do, don't
    you think it is a little bit anomalous for courts to be going
    out there and binding parties who are not before them? I mean,
    is that something we want to encourage?
        Professor Shaw. Senator, I think that judges have been
    issuing rulings that impact nonparties since Marbury v.
    Madison, right, so----
        Senator Hawley. So you are not concerned about it?
        Professor Shaw. I'm not. I absolutely think that they can
    be abused, and they have been----
        Senator Hawley. Well, now, wait a minute.
        Professor Shaw [continuing]. Abused.
        Senator Hawley. Wait a minute. Wait a minute. Wait a
    minute. You were very concerned about it just a couple of years
    ago. You said in response to a nationwide injunction on the
    Biden FDA's mifepristone rules, ``This injunction is a travesty
    for principles of democracy, notions of judicial impartiality,
    and the rule of law.''
        Professor Shaw. I think I've been consistent today. That
    was issued by Judge Kacsmaryk in a single-judge division.
        Senator Hawley. Wait a minute. Wait a minute.
        Professor Shaw. They're a problem. Those are a problem.
        Senator Hawley. You are taking issue with him personally--
    wait.
        Professor Shaw. No, no, no.
        Senator Hawley. So your testimony is if it is issued by
    Judge Kacsmaryk, it is bad?
        Professor Shaw. No, sir.
        Senator Hawley. It is personal?
        Professor Shaw. That is not my testimony. I said----
        Senator Hawley. So is the problem with the injunction? You
    were criticizing the universal injunction here.
        Professor Shaw. Issued by a judge in a single-judge
    division. I've been very clear today----
        Senator Hawley. Ah, so----
        Professor Shaw [continuing]. That those are a problem.
        Senator Hawley [continuing]. Issued by a Republican judge
    in a Republican division, then it is bad.
        Professor Shaw. No, Senator.
        Senator Hawley. Otherwise, it is fine.
        Professor Shaw. No, Senator. I think that single-judge
    divisions are a problem.
        Senator Hawley. What is the principle difference? I am
    looking for a principle. I understand you hate the President. I
    understand you love all of these rulings against him. You and I
    both know that is not a principle. You are a lawyer. What is
    the principle that divides when issuing a nationwide injunction
    is okay and when it is not? When the Biden administration was
    subject to nationwide injunctions, you said that they were
    travesties for the principle of democracy. You didn't say the
    referral to Judge Kacsmaryk was a travesty. You said his
    injunction was a travesty for principles of democracy.
        Professor Shaw. So----
        Senator Hawley. In other words, the translation is you just
    didn't like the outcome. Is that right?
        Professor Shaw. No, Senator. Look, we're talking about--I
    don't think Article III precludes this form of relief. So we
    are talking about prudential considerations.
        Senator Hawley. Prudential meaning political?
        Professor Shaw. No.
        Senator Hawley. Then give me----
        Professor Shaw. No.
        Senator Hawley. So far, I have yet to hear it. You have
    been questioned by multiple Senators. I have yet to hear a
    principle other than the fact when you like the ruling, you
    think it is great to apply it nationally, including nonparties.
    When you don't like the ruling, it is a travesty for the
    principles of democracy, notions of judicial impartiality, and
    the rule of law.
        Professor Shaw. Look, Senator, I'll say I think I am self-
    aware enough to know that my view of the underlying legal
    question, I am sure, colors my perception of the remedy, and I
    think that we should all acknowledge that. And yet I do think
    that there----
        Senator Hawley. Then why shouldn't we stop nationwide
    injunctions for everybody?
        Professor Shaw. I think there is----
        Senator Hawley. That is what we are talking about today.
        Professor Shaw. Because I am not willing to leave without
    relief nonparties who are injured----
        Senator Hawley. No, you are not willing to leave without
    the ability to bind President Trump.
        Professor Shaw. No, I think that----
        Senator Hawley. Right? I mean----
        Professor Shaw. I believe----
        Senator Hawley [continuing]. When it is Biden, it is okay.
        Professor Shaw. No.
        Senator Hawley. When it is Biden, oh, it is a travesty. But
    when it is Trump in office, it is a no-holds-barred, whatever
    it takes, right?
        Professor Shaw. I believe in a powerful----
        Senator Hawley. It is just like that book that----
        Professor Shaw. No.
        Senator Hawley. What was it that President Biden's staff
    said? We have got to do undemocratic, unconstitutional things
    to save democracy.
        Professor Shaw. I believe----
        Senator Hawley. Why isn't this the same thing?
        Professor Shaw. I believe in a powerful President. I do
    believe in Presidential power. But power and constraint are not
    at fundamental odds----
        Senator Hawley. What is the principle? What is the
    principle, the legal principle. You have referenced prudence.
    You have referenced the judges you don't like. What is the
    principle of when an injunction biding nonparties, which was
    never done in this country before the 1960's--and let's see the
    chart--the Trump chart, which was done really only once Trump
    came into office for the first time. You don't think this is a
    little bit anomalous? You don't think that is a little bit
    strange? Do you----
        [Poster is displayed.]
        Professor Shaw. A very plausible explanation----
        Senator Hawley [continuing]. Think this is good for the
    rule of law?
        Professor Shaw [continuing]. Senator, you have to consider
    is that he is engaged in much more lawless activity than other
    Presidents, right? That----
        Senator Hawley. You don't think----
        Professor Shaw. You must--can see that is----
        Senator Hawley. This was never used----
        Professor Shaw [continuing]. A possibility.
        Senator Hawley [continuing]. Before the 1960's, and
    suddenly Democrat judges decide, we love the----
        Professor Shaw. No.
        Senator Hawley [continuing]. Nationwide injunction. And
    then when Biden comes to office, no, no----
        Professor Shaw. It's Republican appointees as well,
    Senator. And the 1960's is where some scholars begin--sort of
    locate the beginning of this----
        Senator Hawley. Can you identify one----
        Professor Shaw [continuing]. But others----
        Senator Hawley [continuing]. Before then?
        Professor Shaw. Mila Sohoni, who's another scholar of
    universal injunctions, suggests 1913 is actually the first.
        Senator Hawley. Oh, okay. So----
        Professor Shaw. There were others in the 1920's.
        Senator Hawley. The republic endured for 150 years before--
    --
        Professor Shaw. So----
        Senator Hawley [continuing]. There was a nationwide
    injunction.
        Professor Shaw. Well, the Federal Government was doing a
    lot less until 100 years ago, so I'm--you know, there's many
    things that have changed in the last 100 or the last 50 years.
    This is----
        Senator Hawley. So long as it is a Democrat President
    office, then we should have no nationwide injunctions. If it is
    a Republican President, then this is absolutely fine,
    warranted, and called for.
        Professor Shaw. That is not----
        Senator Hawley. How can our system of law survive on those
    principles, Professor?
        Professor Shaw. I think a system in which there are----
        Senator Hawley. Is that blind?
        Professor Shaw [continuing]. No meaningful constraints on
    the President is a very dangerous system of law----
        Senator Hawley. That is not what you thought----
        Professor Shaw [continuing]. And I'm----
        Senator Hawley [continuing]. When Joe Biden was President.
        Professor Shaw. I think every President----
        Senator Hawley. You said----
        Professor Shaw [continuing]. Needs constrained and must be.
        Senator Hawley. That is not what you said.
        Professor Shaw. Absolutely.
        Senator Hawley. You said it was a travesty for the
    principles of democracy, notions of judicial impartiality, and
    the rule of law. You also said----
        Professor Shaw. The Supreme Court, Senator, agreed----
        Senator Hawley [continuing]. When Joe Biden was President--
    wait a minute, wait a minute.
        Professor Shaw [continuing]. 9-0 with me on that case----
        Senator Hawley. You also said----
        Professor Shaw [continuing]. To be clear.
        Senator Hawley [continuing]. When Joe Biden was President,
    you said the idea that anyone would forum shop to get a judge
    who would issue a nationwide injunction was just ``judges
    looking like politicians in robes.'' Again, it threatened the
    underlying legal system. People were just trying to get the
    result they wanted. It was a travesty for the rule of law. But
    you are fine with all of that if it is getting the result that
    you want.
        Professor Shaw. Sir, the Supreme Court agreed unanimously
    with me in that case, right? There was no standing. The case
    should never have been allowed to proceed.
        Senator Hawley. Wait, wait, wait. What case?
        Professor Shaw. And the combination of parties without
    standing and the single----
        Senator Hawley. No, no, no, no, no, no, no.
        Professor Shaw [continuing]. Judge division----
        Senator Hawley. No, no, they did not. They did not issue a
    ruling on the nationwide injunction. You----
        Professor Shaw. No.
        Senator Hawley [continuing]. Criticized the injunction
    nationwide. Listen----
        Professor Shaw. Issued in a case where----
        Senator Hawley [continuing]. We could go round and round on
    this.
        Professor Shaw [continuing]. No one had standing.
        Senator Hawley. Here is the thing. We have now gone 6
    minutes, and Senator Kennedy had you for 6 or 7. You couldn't
    identify a single principled basis.
        We all know the truth here, which is it is not just you. It
    is most of my colleagues over here on this side of the aisle,
    who I respect a great deal, and they were raising very
    principled objections to the nationwide injunction just 6
    months ago, maybe 9 now. And you are probably right.
        My point is, is that all that has changed in 9 months is
    the occupant of 1600 Pennsylvania Avenue. And I realize that my
    colleagues on this side of the aisle very much dislike that
    individual, and I realize that you think that the rulings that
    he has lost are fundamentally sound. We might grant all that. I
    disagree with all of that, but we can put that to one side.
        The question we are talking about here is, should judges,
    single judges, district court judges, be able to bind
    nonparties who are not in front of them? And you used to say
    no. Now, you say yes. Let's be consistent. I would just suggest
    to you our system of government cannot survive if it is going
    to be politics all the way down.
        Professor Shaw. Can----
        Senator Hawley. Thank you, Mr. Chairman.
        Professor Shaw. Can I briefly respond?
        Senator Hawley. Sure.
        Professor Shaw. I mean, you invoked democracy a couple of
    times there, Senator. Judges are part----
        Senator Hawley. I quoted you.
        Professor Shaw. Judges are part----
        Senator Hawley. I quoted you for that.
        Professor Shaw [continuing]. Of our system of democracy.
    Democracy is just--is not as simple as majority rule. Judges
    have always served something of a----
        Senator Hawley. You would have it be as simple----
        Professor Shaw [continuing]. Counter majoritarian function.
        Senator Hawley [continuing]. As majority rule. When you get
    the majority you like, you are for the nationwide injunction.
    When you don't, you are not.
        Chair Schmitt. Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman.
        I am going to give you the opportunity that I often found
    absolutely precious when I was arguing before a panel of judges
    and couldn't get my answer out. I am going to give you some of
    my time to just say what you were going to say to Senator
    Hawley.
        Professor Shaw. Thank you, Senator.
        Senator Blumenthal. I can't interrupt you.
        Professor Shaw. Okay. Thank you. Thank you, Senator.
        Senator Kennedy. I will take some of your time.
        Professor Shaw. You know, I started to say this.
        Senator Blumenthal. By the way, we are good friends, so it
    is not personal.
        Professor Shaw. Well, maybe I will just finish what I
    started saying at the end, which is in a number of the
    questions today, there has been this embedded premise that
    there is something democratically troubling about judges
    issuing these nationwide injunctions constraining the
    democratically elected President. And I guess I would just say
    in response that, you know, we have a constitutional democracy.
    So we do--the people are sovereign and that's--you know, that
    sovereignty flows from the people. And we do choose our elected
    representatives, but obviously, we choose our Representatives
    in Congress, passes--Congress passes statutes, the President
    signs them. And many of the rulings we are talking about were
    predicated on executive branch violations of statutes that
    Congress passed. So the rulings in many ways are about
    protecting and reinforcing democracy.
        And then finally, I'll say that, you know, courts are part
    of our democracy, right? They have served this rights-
    protecting and democracy-facilitating function from basically
    the beginning, whatever the original design of the constitution
    was. And it is not undemocratic or anomalous for courts to
    sometimes strike down acts of the President or of Congress when
    they conflict with the fundamental law, which is the
    Constitution, which in our system, courts have long had the
    primary role in enforcing.
        Senator Blumenthal. And in fact, just as a footnote to this
    conversation, Congress has an obligation to follow the
    Constitution too, correct?
        Professor Shaw. Absolutely. The President does, Congress
    does, every official State and Federal takes an oath to uphold
    the Constitution, but where that oath is--does not appear to be
    fully honored by one or more other actors in government,
    sometimes courts do need to step into the breach. I think that
    is what we have been seeing.
        Senator Blumenthal. And I can't remember exactly what that
    chart said, but so far in the lawsuits have been--that have
    been brought, the administration or the President has lost, I
    would say a vast majority of times. Is that correct?
        Professor Shaw. The vast majority, yes, Senator.
        Senator Blumenthal. And I want to ask a somewhat open-ended
    question because I have to confess, as attorney general of the
    State of Connecticut, I probably succeeded--I can't name in
    which cases--obtaining a nationwide injunction. Then-attorney
    general Schmitt sought more than----
        Chair Schmitt. You started it. Is that your admission?
        [Laughter.]
        Senator Blumenthal. Sought more than a dozen nationwide
    injunctions against the Biden administration. Then-attorney
    general Moody also sought numerous nationwide injunctions. This
    is a tactic, and it is a well-founded one that attorneys
    general, litigants, and others have used again and again and
    again. And it shouldn't be a partisan issue. Nationwide
    injunctions shouldn't be a partisan issue. And when I say they
    did it, I am not being accusatory. I confess I did it. And I
    don't know about then-attorney general Whitehouse. He can speak
    for himself. But it should not be a partisan issue, should it?
        Professor Shaw. I agree that it shouldn't be and that--but
    of course, yes, it has been. I mean, I think that despite the
    somewhat heated exchange I was just having with Senator Hawley,
    I do think that we don't want judges to be sort of driving the
    train of policymaking. And there are absolutely--there may be
    points and there may be contexts in which it does feel as
    though some fundamental change to the way judges consider
    nationwide injunctions, how much--there is some critique that
    the merits have become the entire analysis and that some--you
    know, there should be some prescriptions that are different
    about the kinds of harms that should be--the way harm should be
    evaluated or assessed. So I do think there are--again, back to
    the sort of prudential point, there are absolutely reforms that
    I think that there could be some----
        Senator Blumenthal. Just to take--and I apologize----
        Professor Shaw. Yes, no, please.
        Senator Blumenthal [continuing]. For interrupting, but I am
    running out of time.
        Professor Shaw. Yes, sorry.
        Senator Blumenthal. To take Senator Hawley's point about
    looking for a principle, a jurisprudential lodestar here, maybe
    we do need some refinement on a bipartisan basis to provide
    some guidelines to district court judges, some of whom come to
    work on their first day----
        Professor Shaw. Right.
        Senator Blumenthal [continuing]. And are presented with
    litigation that determines whether or not kids get healthcare
    or whatever in parts of the country they have never visited in
    towns they don't even know how to pronounce.
        Professor Shaw. Right. So--and whether that comes from a
    rule change, Supreme Court guidance, something legislative, I
    am not sure, but I think there could well be bipartisan
    consensus around clearer standards that guide judges asked to
    consider requests for nationwide injunctions.
        Senator Blumenthal. And that would probably increase the
    credibility of what courts do if they could point to standards
    that were not just personal preferences or whims or, you know,
    perhaps subconscious political leanings.
        Professor Shaw. I agree with that, Senator.
        Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
        Chair Cruz. Thank you. Senator Blackburn.
        Senator Blackburn. Thank you, Mr. Chairman.
        Professor, I do want to come to you, and I want to return
    to the conversation about calling the Supreme Court justices
    evil. You host a podcast, correct?
        Professor Shaw. Yes, Senator.
        Senator Blackburn. And that is called Strict Scrutiny,
    correct?
        Professor Shaw. Yes, Senator.
        Senator Blackburn. Okay. You made those comments on your
    podcast. And Mr. Chairman, I would like to submit the recording
    of that podcast for the record.
        Chair Cruz. Without objection.
        [The information appears as a submission for the record.]
        Senator Blackburn. Thank you, Mr. Chairman.
        In that podcast, you referenced, as Senator Kennedy said,
    to Justice Kagan an opinion, and you referred to the
    conservative justices as, and I am quoting you, ``her evil
    colleagues.'' That is something you said on Strict Scrutiny in
    your podcast.
        And you, in that same podcast, you made a reference to
    Justice Alito. Do you recall that?
        Professor Shaw. I don't recall that. And we certainly do
    reference Justice Alito, so I believe that, but I don't
    recall----
        Senator Blackburn. Well----
        Professor Shaw [continuing]. Specifically what.
        Senator Blackburn [continuing]. Your comment there was that
    he was an ``abject misogynist.'' So since this is your podcast
    that you hosted and this was your opinion on that podcast,
    would you like to provide explanation about why you think
    conservative justices are evil and why you would think Justice
    Alito was a misogynist? Do you care to explain yourself?
        Professor Shaw. I would have to look at the transcript,
    Senator. I think that the dismissive approach to sex equality
    arguments in the Dobbs case was deeply concerning. One
    paragraph in the opinion suggests that there is no sex equality
    problem with abortion restrictions or prohibitions. I think
    that is deeply wrong. And in the more colloquial sort of mode
    of a podcast conversation, that is probably what I intended to
    convey, that he discounted very serious sex equality concerns.
        Senator Blackburn. But you were angry. You were angry, and
    you let your emotions get the best of you is basically what you
    are saying.
        Professor Shaw. I don't think I'm saying that, Senator. I
    was having a conversation, and I am sure I was criticizing
    Justice Alito. We frequently do on my podcast.
        Senator Blackburn. Okay. Would you call that lack of
    respect?
        Professor Shaw. As--in the context of a podcast, I--we
    frequently--I will stipulate that we frequently demonstrate a
    lack of respect for writings of the Supreme Court justices,
    yes.
        Senator Blackburn. Well, that is good to hear that from
    you, that you have that admission of guilt, so thank you for
    that.
        I have got a question for the entire panel. There was
    discussion about Section 1507 and protesting outside of
    justices' residence. And I have got a bill, the Protecting Our
    Supreme Court Justices Act, and it would deter intimidation of
    Supreme Court justices. And in the exchange Senator Cruz had
    earlier, he referenced that purposeful intimidation.
        This would change--it would increase the maximum term of
    imprisonment for violation of Section 1507 from 1 year to 5
    years, and increasing the maximum jail time for a protester
    under 1507 is, I think, an effective way to deter this
    intimidation of our justices. So I would like to hear from each
    of you on this.
        Professor Blackman, I am going to come to you first, and
    then just a very quick, short answer from each of you.
        Professor Blackman. Sure. I think it's a good idea. I think
    it should be enforced vigorously as well. We mentioned Judge
    Kacsmaryk before. He has had several death threats against him
    that resulted in plea bargains, so I think there's a serious
    problem that needs to be addressed with enforcement.
        Senator Blackburn. Okay. Professor Shaw?
        Professor Shaw. You know, I think that any law that also
    touches protected First Amendment conduct would need to be
    scrutinized carefully so I would need to take a look. I'm not
    prepared to take a position here.
        Senator Blackburn. So you think violence outside of a
    justice's----
        Professor Shaw. No, no, this is about protest outside of--
    --
        Senator Blackburn [continuing]. Intimidation.
        Professor Shaw. Okay. So, violence, absolutely. I mean, if
    we're talking about increasing penalties for violence, I would
    absolutely support that----
        Senator Blackburn. Okay.
        Professor Shaw [continuing]. Yes.
        Senator Blackburn. Great. Professor?
        Professor Alicea. I certainly think we need to carefully
    scrutinize the level of violence and the threats against
    Supreme Court justices and other judges, as we saw when there
    was a threat against Justice Kavanaugh's life, right, an
    attempted threat against him and his family, so it underscores
    the seriousness of the issue, and I think it's important for
    Congress to take a look at this.
        Senator Blackburn. Thank you. Thank you, Mr. Chairman.
        Chair Cruz. Thank you. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman. I kept hearing one
    of my colleagues accusing you, Professor Shaw, of disliking
    nationwide injunctions only when it is applied to Democratic
    Presidents. He tried so many times. That is not what you said.
    That is certainly not what I heard. What I heard you say was,
    in those instances where there is a single judge in a district,
    that can lead to forum shopping, judge shopping, which is
    exactly what happened in Amarillo, Texas. And you said that is
    something that Congress could address. I think that is a fair
    depiction of what you testified to. Is that correct?
        Professor Shaw. Thank you, Senator. Yes, that was in my
    written testimony, and I think that I did----
        Senator Hirono. Well----
        Professor Shaw [continuing]. Confirm it today.
        Senator Hirono [continuing]. So I had introduced a bill to
    Stop Judge Shopping Act, which would require suits seeking
    nationwide relief against the enforcement of Federal law to be
    filed in the D.C. District Court. And I explained at the time
    that I introduced the bill that this court, ``hears the large
    majority of cases involving challenges to Federal agency
    action, and its judges are experts at deciding these cases
    impartially.'' That is one of the ways that we can address the
    issue of forum or judge shopping, which you did address once
    again today, correct?
        Professor Shaw. Yes, Senator.
        Senator Hirono. Yes, I wish we could take that bill up.
        So, you know, this attempt of my colleagues to continually
    attack the Democrats as somehow not wanting judges who decide
    cases based on objective facts, application of the law, as
    opposed to having some kind of ideological ax to grind is
    really more something that they have a problem with apparently
    than anything that we Democrats stand for.
        Once again, Professor Shaw, there was a suggestion today
    that case assignments in D.C. is happening in a way that is
    statistically impossible. And I think this only serves to point
    out that maybe the person who made this allegation doesn't have
    enough awareness of statistics or hasn't read the rules in the
    way cases are assigned in D.C. Do you have any response to the
    allegation that someone is stacking the decks against the Trump
    administration in this court, the D.C. District Court?
        Professor Shaw. Right, Senator. So I've heard both that
    critique that Judge Boasberg is getting a disproportionate
    share of the cases and also the kind of opposite critique that
    the motions panels in the D.C. Circuit have been more favorable
    to the Trump administration than random chance would produce.
    You know, statistically unlikely events do sometimes occur, and
    I think it very unlikely that there is anything untoward
    resulting in the assignments either of the district court or
    the court of appeals level here in D.C.
        Senator Hirono. I have to thank you for pointing out how
    many cases. Yes, there have been over 200 cases filed to stop
    this President from, in my view, abusing his power and engaging
    in illegal acts. And frankly--and I think Mr. Blackman also
    suggested this, as did you, Ms. Shaw, that if we don't like
    this President to be sued, then we in Congress should enact
    laws that allows him to do whatever the hell he wants.
        So why don't we let him ignore the appropriations of this
    Congress? Why don't we let him stop certain grants from being
    issued? Why don't we let him go after Harvard and any other
    school that he doesn't like? Why don't we let him go after law
    firms that take positions that he doesn't like? Why don't we
    let him do that if we don't want him to get sued? I think that
    is a rhetorical question, but certainly we could do that.
        Thank you, Mr. Chairman.
        Chair Cruz. Thank you. Senator Schiff.
        Senator Schiff. Thank you, Mr. Chairman.
        Ms. Shaw, I wanted to ask you about some of the threats we
    are seeing on the judiciary, but let me preface it by quoting
    the President, who has called Federal judges who rule against
    him communists. He has called them lunatics. He has called them
    monsters. He has said that they hate the United States. Of
    course, he called for the impeachment of Judge Boasberg, said
    the court system is radicalized and incompetent. His advisor,
    Stephen Miller, has threatened to suspend the writ of habeas
    corpus if judges essentially don't fall in line. And as a
    result, we are seeing judges' lives threatened and their family
    members' lives threatened.
        Let me start with a threshold question in terms of a
    President making these personal attacks on judges for ruling
    against him or against the policies of the administration. Have
    we any experience in our history with this? I mean, there have
    been Presidents, of course, who have been deeply disappointed
    in judges they have appointed. And of course, many of these
    judges ruling against Donald Trump are people appointed by
    Donald Trump. But have we ever seen a President make these kind
    of sustained and personal attacks on members of the judiciary?
        Professor Shaw. Senator, look, I would say that, obviously,
    tension between--sometimes very heated tension between elected
    officials and judges, Presidents and judges who rule against
    them is nothing new. But I agree with you that there is
    something different about the tenor of the rhetoric that we are
    hearing today. And I think that some of the specific
    suggestions--and maybe I'll offer a couple of examples.
        One, I do think that including family members of judges in
    the attacks on judges' rulings is something that, to my
    knowledge, we have not previously seen members of public office
    engage in. The proposals to impeach, right? So there's been
    rhetoric, but also actual resolutions introduced in the House
    to impeach Federal judges for the substance of their rulings is
    also something that I don't think we've seen. We've obviously
    impeached Federal judges before. That's a constitutional remedy
    for very serious misconduct, bribery, corruption. Obviously, if
    the judges engage in treason, bribery, and other high crimes
    and misdemeanors, impeachment is the remedy. But we've never
    seriously entertained the possibility of impeaching judges for
    the substance of their rulings, and so I do think that those
    threats represent sort of a new escalation that is deeply
    concerning.
        Senator Schiff. Well, I certainly agree. I tried one of
    those judicial impeachment cases of a judge named Porteus, and
    it was for bribery and other like serious offenses, certainly
    not for upholding the law or the Constitution or having a
    different view of the law or Constitution than a President.
        In terms of the family members, it is not just the
    President's criticism, but at least while he was serving as a
    special employee, Elon Musk was pushing out these threats
    against members of Judge Boasberg's family, I think tweeting
    out or retweeting content identifying who the children are or
    where they work. And that is just amplifying the danger to
    these family members.
        Tell us a little bit about this phenomenon now of people
    sending pizzas to judges and the implicit threat in that.
        Professor Shaw. Well, I mean, I think it's--this is also
    something that I don't think we've seen before, right? There is
    clearly some kind of coordinated effort to seek to intimidate
    Federal judges and their families by sending pizzas,
    communicating the message that their residence, their addresses
    are known. And some of the pizzas bear the name of the murdered
    son of district judge Esther Salas from New Jersey. And the
    message there, I think, is a very clear one of very serious
    threat. And I think judges are taking that threat--and the
    marshals are as well from the reporting that we've seen--very
    seriously.
        Senator Schiff. And last question, if you could help,
    Professor, put this in a broader context for us because this
    attack on judges and the judiciary isn't happening in
    isolation. We've seen the President now turn on Leonard Leo
    because these ultraconservative Federalist Society-approved
    judges are not proving right wing enough for the President. But
    this comes in the context of the administration also going
    after law firms. It seems very much a part of a concerted
    effort to attack the rule of law and using the law to defend
    people's rights. Tell us a little bit about the broader
    context.
        Professor Shaw. I do think that attacks on judges and
    attacks on law firms are of a piece. They seem designed to seek
    to neutralize sources of countervailing authority and
    opposition to this administration. And if law firms can't take
    on unpopular causes because they are scared to run afoul of the
    President, and if judges are scared to rule against the
    President, then we really have lost any meaningful check on a
    President.
        And as I said in my opening remarks, I think if the
    Constitution is committed to a single principle, it is limits
    on power, right, no absolute power. And I worry that we are on
    a path toward few, if any, meaningful limits on the President.
        Senator Schiff. Thank you for your testimony today and for
    speaking truth to power.
        Professor Shaw. Thank you.
        Chair Cruz. Thank you, Senator Schiff.
        I will also note that when it comes to rhetoric against
    judges, that it was Democratic leader Chuck Schumer who stood
    on the steps of the Supreme Court and threatened the Justices
    by name. And one of many left-wing commentators who has
    amplified that message is a fellow named Ian Millhiser, who
    when the leak of the Dobbs opinion happened, he tweeted out,
    ``The draft Roe opinion appears to be as bad as expected, but I
    am glad it leaked because this leak will foster anger and
    distrust within the irredeemable institution that is the
    Supreme Court of the United States.''
        And I guess he decided that rhetoric was not overheated
    enough because then he tweeted, ``Seriously, shout out to
    whoever the hero was within the Supreme Court who said, F
    it''--although he did not abbreviate that--``let's burn this
    place down. That is the angry, unhinged language from the left
    that has been directed at the court when they dislike the
    decisions.
        I want to thank each of the witnesses for joining us today.
    I want to thank Senator Schmitt for co-chairing this joint
    Subcommittee hearing. Written questions for the record can be
    submitted by Senators up till June 10 at 5 p.m., and the
    witnesses are asked to respond to any written questions for the
    record by 5 p.m. on June 17.
        And with that, this hearing is adjourned.
        [Whereupon, at 4:40 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                A P P E N D I X

    The following submissions are available at:

      https://www.govinfo.gov/content/pkg/CHRG-119shrg61716/pdf/CHRG-
        119shrg
        61716-add1.pdf

    Submitted by Chair Cruz:

     Poster 1.........................................................     2

     Poster 2.........................................................     3

    Submitted by Senator Blackburn:

     Transcript from Strict Scrutiny Podcast, audio transcript........     4

    Submitted by Senator Whitehouse:

     Citizens for Responsibility and Ethics in Washington (CREW),
        statement.....................................................     5

                                     [all]