Bench Memos

Law & the Courts

Judicial Winning: Daniel Bress

(Carlos Jasso/Reuters)

Before becoming a judge on the Ninth Circuit, Daniel Bress had, by age 39, accomplished in just a few years what many lawyers aspire to achieve over the course of an entire career. He clerked for the late Justice Scalia. He was a partner at a law firm where, among numerous other awards, he was named a rising star by the National Law Journal, Law360, and Benchmark litigation. And he was an adjunct professor of law. His students remember him fondly as a professor with “an incredible mind” who pushed them to think outside the box. It came as no surprise, then, that President Trump nominated Bress to the Ninth Circuit.

Since ascending to the federal bench, Judge Bress has demonstrated a keen understanding of the law and a principled adherence to judicial restraint. Take his dissent back in May in Doe #1 v. Trump. In that case, a district court issued a nationwide injunction against the enforcement of an immigration policy articulated by President Trump in Proclamation No. 9945. The policy placed certain restrictions on the entry of illegal immigrants whose stay in the country would impose undue financial burdens on our health-care system, taking precious care and resources away from the Americans who need them most.

Before Doe #1, the Supreme Court had ruled in Trump v. Hawaii that the president has “sweeping authority” to decide whether, when, and for how long to suspend immigration. And several members of the Court, as well as legal scholars, expressed deep skepticism about whether it is constitutional for a district court with limited geographic jurisdiction to issue a universal injunction against the executive branch.  Undeterred by all of this, a panel of the Ninth Circuit upheld the injunction.

In his dissent, Judge Bress explained that the panel’s decision “inflicts real damage on our constitutional system” because it represents a usurpation of the president’s power by the courts that our Constitution simply does not allow. “It is a bad day for the separation of powers” that the Founders intended, Judge Bress wrote, “when the Executive — operating at the apex of his constitutional mandate — loses out to players who lack the authority that the Constitution and Congress entrusted to him.” It was a bad day for the rule of law, too. Judge Bress pointed out that the majority “endorses arguments that the Supreme Court expressly rejected two years ago in Trump v. Hawaii.”

Though activist opinions like the majority’s in Doe #1 v. Trump are sadly all too common on the left-leaning Ninth Circuit, Judge Bress’s commitment to the rule of law is a breath of fresh air. With more judges like him on the federal bench, perhaps Judge Bress’s hope will soon be realized and “the great policy debates of our time” will be “resolved in the halls of Congress, the public square, and at the ballot box” rather than by an unelected “district court in Oregon or a three-judge panel in San Francisco.”