The problem of jurisdiction shopping and one judge imposing a national injunction

Determination of the legality of various Presidential actions has become problematic in the USA because:

1.      Presidents are claiming expanded powers in executive orders and under emergency decrees.

2.      Opponents are aggressively shopping for favorable district courts in which to file a suit to block the president (for example, the political left typically files suit in California while the political right typically files suit in Texas).

3.      A single judge then frequently issues a nationwide injunction.

We can improve the process by requiring a panel of 3 district judges to hear cases involving the President of the USA (I’m flexible as to the definition of the cases over which such a panel would preside).

The panel could be required to consist of district judges from 3 different states.  There might be a principle determining one district judge and the others might be picked randomly.  (Again, I’m flexible as to the details.)

The advantages would be:

a)      Less power for a single judge to exercise a national injunction, thus addressing item #3 above.

b)     Less ability to shop for judges and less consequence even if plaintiffs shopped for one of the judges, addressing item #2.

c)      The decision would reflect three different judges’ perspectives, which is broader than current practice.  Not only does this bring more expertise and diverse views, it also brings more discussion amongst the judges.

d)     Unanimous decisions would carry much more weight than decisions made by a single judge.  There might be little reason to pursue the issue further.  Such decisions would create less pressure for review than current one-judge rulings.

e)     Even 2-to-1 rulings would be more decisive in the sense that rather than having a close call, perhaps, for one judge, we’d have at least two judges concurring on the decision.  A strong dissent could distinguish cases worthy of further pursuit.

It would be more costly to involve three judges (including travel) and it could take more time (scheduling for example), but those costs seem small for the advantages that would result.

These issues are bi-partisan, so hopefully Congress could pass such reform.  It clearly is within Congress’s scope, as demonstrated by the following history.

Article III of the Constitution grants the federal judiciary the power to hear cases and controversies arising under the Constitution, laws, and treaties of the United States and grants Congress the authority to fill in details.  The Constitution does not mention district courts.  The Judiciary Act of 1789 established the federal district courts.  In the  Judicial Code of 1911, Congress abolished US Circuit Courts, giving district courts more power.  I have not reviewed how/where the power of district courts to decide cases involving the President is defined.  But, clearly, Congress has the ability to change the rules.

Note: Joel Cohen and Bennett L. Gershman, wrote an article* on this topic in the Wall Street Journal.  They recommended that the Supreme Court require that the judge grant an automatic stay of [5] days to allow an appeal.  The appellate court would be required to decide the case within [30] days.

Their suggestion seems superior if the cases would be rarely appealed, because, in that case, their suggestion would save time and money.  My suggestion seems better if the cases were likely to be appealed, because it would avoid the cost and time for two hearings.