Sessions Attacks 'Activist Judges' Over 'Sanctuary-Cities' and DACA Blocks

Attorney General Jeff Sessions on Saturday slammed "activist judges" for issuing injunctions on some of the Trump administration's policies. Chris Kleponis-Pool/Getty Images

The U.S. Attorney General slammed who he deemed "activist judges" and their injunctions of some Trump administration policies as "unconstitutional" on Saturday, calling into question the nation's top law enforcement official's understanding of the judicial system.

Jeff Sessions criticized federal judges for using the power of the courts to issue nationwide injunctions during a speech on Saturday to the Federalist Society, a group of conservatives and libertarians.

"The court is not superior," he charged in prepared remarks Saturday. "The increasing frequency of limitless injunctions is simply unsustainable, and the ever-more extreme nature of these injunctions is only making it more obvious just how unconstitutional they are."

Sessions took particular umbrage with judges who blocked the attempts by the Trump administration to deny funding for so-called "sanctuary cities," repealing the Deferred Action for Childhood Arrivals program, also known as DACA, and the travel ban.

"The court does not get to have the final word in every dispute, give me a break," he said.

Sessions' reference to "activist judges" may be telling.

"There's an old joke: A judicial activist is one who issues a decision you don't like," Peter Shane, a professor of constitutional law at Ohio State University's Moritz College of Law, told Newsweek.

"Calling someone a judicial activist is a tradition virtually as old as the country," he said.

Sessions is right that the courts are not "superior." The framers of the Constitution divided the U.S. government into three equal branches: The executive branch, the legislative branch and the judicial branch.

Federal courts also have what is called "judicial review," or the ability to review the constitutionality of legislation. That authority was determined in an 1804 landmark case, Marbury v. Madison, which found the courts' power to declare laws unconstitutional is part of the government's separation of powers.

Shane noted that presidential executive orders—like the travel ban—are not, by definition, legislation. But, judges do have the power to issue injunctions on them if their implementation would violate the Constitution, he said.

"As Attorney General of the United States, I am shocked by the actions of certain judges who fail to respect the constitutional responsibilities of the executive and legislative branches," Sessions said.

"Although the courts are empowered to decide specific cases and controversies, they do not have the final word on every policy dispute," he continued. "On matters of policy, the branches that are directly accountable to the people must be given proper respect."