Hawley clashes with UPenn law professor over judicial injunctions
Sen. Josh Hawley, R-Mo., clashed Tuesday with a University of Pennsylvania law professor over the number of nationwide judicial injunctions imposed by district judges against President Donald Trump's executive actions on matters including deportations, tariffs, and cuts to federal funding and the federal workforce.
During the Senate Judiciary subcommittee hearing titled "The Supposedly 'Least Dangerous Branch': District Judges v. Trump," Hawley displayed a bar chart to argue that nationwide injunctions against the executive branch, which had not been used until the 1960s, surged when Trump came into office for his first term and then dramatically dropped again during former President Joe Biden's time at the White House.
"Now, you don't think this is a little bit anomalous?" Hawley asked University of Pennsylvania law professor Kate Shaw.
Shaw, a Supreme Court contributor for ABC News who previously worked for former President Barack Obama's White House Counsel's Office, responded, "A very plausible explanation, senator, you have to consider is that [Trump] is engaged in much more lawless activity than other presidents. Right?"
"This was never used before the 1960s," Hawley said. "And suddenly Democrat judges decide we love the nationwide injunction. And then when Biden comes office, no, no."
Shaw cited Mila Sohoni, a Stanford Law School professor, as suggesting that the first nationwide injunction came in 1913 and others were issued in the 1920s.
"The federal government was doing a lot less until 100 years ago," she said. "There's many things that have changed in the last hundred or the last 50 years."
"So as long as it is a Democrat president in office, then we should have no nationwide injunctions?" Hawley shot back. "If it's a Republican president, then this is absolutely fine, warranted and called for? How can our system of law survive on those principles?"
Shaw said she believes a system where there "are no legal constraints on the president is a very dangerous system of law," but the Republican from Missouri contended that's not what the law professor believed when Biden was president.
"You said it was a travesty for the principles of democracy, notions of judicial impartiality and the rule of law," Hawley said. "You said the idea that anyone would foreign shop to get a judge who would issue a nationwide injunction was a politician, just judges looking like politicians in robes. Again, it threatened the underlying legal system. People are just trying to get the result they wanted. It was a travesty for the rule of law. But you're fine with all of that if it's getting the result that you want."
Hawley cited Shaw's stance in a specific abortion pill ruling during Biden's presidency. In April 2023, U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas issued a nationwide injunction on the Biden Food and Drug Administration's mifepristone rules, which Shaw described at the time as "a travesty for the principles of democracy, notions of judicial impartiality and the rule of law."
Hawley said she had failed to offer a legitimate principle for issuing nationwide injunctions now.
"I understand you hate the president," the senator told Shaw. "I understand that you love all of these rulings against him. You and I both know that's not a principle. You're a lawyer. What's the principle that divides when issuing a nationwide injunction is OK 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."
"When it's Biden, it's OK. When it's Biden, oh, it's a travesty. When it's Trump in office, it's a no holds barred, whatever it takes," the senator added.
Hawley said Shaw and his Democratic colleagues were raising "very principled injunctions" to nationwide injunctions issued against Biden just nine months ago and "all that's changed in nine months is the occupant of 1600 Pennsylvania Avenue."
"I realize that my colleagues on this side of the aisle very much dislike that individual," Hawley said, referring to Trump. "And I realize that you think that the rulings that he has lost are fundamentally sound."
"I disagree with all of that, but we can put that to one side. The question we're 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," he said. "Let's be consistent. I would just suggest to you our system of government cannot survive if it's going to be politics all the way down."
Shaw responded that "democracy is not as simple as majority rule," but Hawley interjected, saying, "You would have it as simple as majority rule. When you get the majority you like, you're for the nationwide injunction. When you don't, you're not."
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