Complying with a judge’s orders, and enforcing them, is central to rule of law.
But what if a judge flouts all the rules of law? Should his order be ignored? Two wrongs don’t make a right; if we start doing that, the law doesn’t exist anymore.
Matthew Kacsmaryk shouldn’t be a judge, but he is, and on Friday he ordered the FDA to reverse its approval of a widely-used abortion drug.
What’s wrong with that ruling? Everything. For starters, he doesn’t have jurisdiction to make any orders in that case. The FDA approved the drug in 2000, and the statute of limitations to challenge FDA drug approvals is 6 years, so Kacsmaryk should have dismissed the lawsuit (see story here). Instead, he ignored the statute.
Next, his decision is based on ideology and politics, not facts or reasoning. It even uses political instead of judicial wording (see story here). Kacsmaryk has no qualifications to evaluate the efficacy or safety of any drug, yet his decision overrules the FDA’s trained scientists, and is “riddled with false statements about medication abortion and the risks of mifepristone,” the drug he ordered FDA to withdraw from the market (see story here). In a nutshell, it’s politically-motivated interference in a drug approval process that Congress intended to protect against political interference.
Finally, Kacsmaryk lacks the impartiality expected of a judge. His mind was already made up before the case started. The decision was set before the lawyers presented any evidence or arguments. In other words, the “fix” was in. He’s against abortion, and used his office to impose his personal beliefs. Not only that, but he didn’t limit his ruling to his judicial district in Texas, but imposed it on the entire nation. That’s a breathtaking assertion of power.
The standard remedy for a judge’s erroneous ruling is to appeal, which the Biden administration will do. Meanwhile, until higher courts rule, other judges don’t have to follow it, and another federal judge has ordered 17 states to keep mifeprestone available in their states.
If a judge is corrupt, commits a crime, or goes rogue, the remedy provided by the Constitution is impeachment and removal. Several Democratic House members are making noise about impeaching Kacsmaryk, who’s made other rulings tainted by politics, but that will go nowhere in this Congress. Biden’s HHS secretary hinted ignoring the ruling “is on the table,” but it shouldn’t be.
It certainly deserves to be ignored, for all the reasons above. Even a GOP congresswoman said the FDA should ignore this order (see story here); and some people may wonder why a Republican judge’s rulings deserve respect when a Republican governor in the same state disrespects a jury’s decision (see story here), but let’s not go down that path.
Why? Because it’s a slippery slope. This is different from citizens engaging in civil disobedience; it’s officials sworn to uphold the law saying they’re not going to. This is taking place amid growing politicization of the courts; which is more, not less, reason to play by the rules. Nothing good can come from accelerating that trend; Republicans will retaliate, and ignoring a judge’s ruling gives them ammunition to do so. In the melee that follows, the rule of law could collapse.
(Related story: What does “ignoring” the ruling mean? How much leeway is there? Are there historical precedents? Read article here.)
Republicans have already crossed a line. The Democrats’ best argument to voters is they’re better than that. This puts them in a position of strength, and they shouldn’t give it up. One group flouting the rule of law is more than enough. We need for the other party to be a principled group of people we can vote for.