Thread by @SenEricSchmitt

Yesterday, another rogue judge tried to undermine the will of the people.

Judge Indira Talwani issued a TRO enjoining portions of the OBBB that defund Planned Parenthood.

Worse, she lied to the Judiciary Committee about how she would rule as a judge. I have the receipts. 🧵

First, Talwani said the most important attribute for a judge is a "deep and sincere" "fairness." Yet, in this case, she unambiguously undermined the integrity of her decision by issuing an unreasoned TRO (an emergency order halting action pending a hearing).

Second, Talwani pledged she would "decide cases solely based on the relevant law and facts." In this case, she cited no law, no facts, and not even any precedent. She acted solely by political ideology.

Third, Talwani pledged to use the constitutional avoidance doctrine to avoid needlessly finding statutes enacted by Congress unconstitutional. In this case, she did the opposite, needlessly striking down a federal provision and acting outside of her Article III power to do so.

Finally, while Talwani promised that she understood the difference between a judge and an advocate, this decision makes plain she does not.

Beyond deceiving the Senate as to what type of judge she'd be, her decision is troubling for several reasons:

While we're (sadly) used to rogue district judges trying to thwart executive action, Talwani has now halted a law duly enacted by Congress and signed by the POTUS

Judge Talwani's order contains no reasoning, no discussion of whether the factors for preliminary relief were satisfied, and was issued before giving the government a chance to be heard.

The Constitution vests Congress–not federal courts–with the Spending Power. Talwani has undermined the separation of powers by ordering the government to expend funds contrary to Congress's expressed wishes.

And since TROs are generally unappealable, Talwani's decision to style this order as a TRO fits into a troubling pattern of district court judges trying to delay prompt review of their orders.

So what do we do about this? Obviously, I hope the DOJ promptly appeals this decision to the First Circuit and Supreme Court. But we're dealing with a deeper structural problem.

First, SCOTUS needs to get more aggressive in policing the lower courts.

The Casa decision was a good start, but only the beginning.

When the lower court judges behave lawlessly, the Court must swiftly reverse them and, if necessary, reassign cases involving the federal government to different courts.

The Court must also become more comfortable deviating from its regular procedures to directly review these judge's decisions. The American people deserve to have the policies they voted for implemented as soon as possible.

Congress also has an important role to play. Here's how Congress can solve this problem:

1. Restrict the ability of a single district judge to issue injunctions against the federal government.

2. If judges want to play politics, Congress should pass laws that insulate executive decisions on sensitive matters like immigration from judicial second-guessing by partisan judges.