Justice Department Lawsuit Drags Courts Into Political Fight

A Justice Department lawsuit against all of the federal district judges in Maryland threatens to pull a judiciary that has sought to defend itself from claims of partisanship into a political brawl.

Legal experts said the government has fair concerns about a Maryland federal court standing order imposing automatic injunctions against the immediate deportation of detainees who filed habeas petitions. However, they said filing a complaint is a drastic action that needles the judiciary, as the Trump administration has publicly targeted judges who’ve ruled against it.

“This lawsuit puts the judiciary into the fray,” said Duke law professor Marin Levy. “It takes the judges out of their role as adjudicators and literally makes them adversarial parties. That move is uncalled for and indeed deeply troubling.”

The judiciary has frequently sought to cast itself as nonpartisan. Chief Justice John Roberts famously said at his confirmation hearing that judges “call balls and strikes,” and has said there are no “Obama judges or Trump judges” after Trump made such comments during his first term.

Roberts in March issued a rare statement against Republicans seeking to impeach judges who have ruled against Trump policies. But he has otherwise remained publicly silent as Trump and his allies have railed against judges.

W. Royal Ferguson Jr., a former federal judge who said he dealt with habeas petitions while serving near the border in the Western District of Texas, said he viewed the Maryland order as the judges trying to protect their ability to fully hear a case, before the person who’s the subject of the litigation is removed.

“It’s so unorthodox to sue instead of appeal, it sort of does directly pit the Trump administration against the judge,” Ferguson said. “It does have at least appearance that the judges are in opposition to the Trump administration, where I don’t think that’s what the judges are trying to do at all.”

Standing Order

The standing order—first issued on May 21 and amended a week later—blocked the deportation of detained persons for two business days after a habeas petition is filed on their behalf. The order, signed by Chief Judge George Russell, references “hurried and frustrating hearings in that obtaining clear and concrete information about the location and status of the petitioners is elusive.”

The Justice Department lawsuit alleges that the order goes beyond the court’s jurisdiction, and imposes injunctions without all the factors for them being met.

“Every unlawful order entered by the district courts robs the Executive Branch of its most scarce resource: time to put its policies into effect. In the process, such orders diminish the votes of the citizens who elected the head of the Executive Branch,” the complaint said.

Harry “Sandy” Mattice, Jr., a former federal judge in Tennessee, said there are other ways the Justice Department could’ve challenged the order. He said the government could’ve asked the US Court of Appeals for the Fourth Circuit, which hears appeals from Maryland, to issue a writ of mandamus directing the trial court to vacate it.

Mattice said that federal appeals courts are typically deferential to how courts manage their caseloads. “DOJ is trying to point out, this goes beyond mere docket management,” he said.

Standing orders are rarely controversial. They’re typically issued by individual judges, laying out the administrative side of how attorneys should practice in their courts.

The Judicial Conference, the judiciary’s policy-making body, in 2009 adopted guidelines that say situations that amount to emergencies, or “unanticipated issues arising from particular kinds of cases,” can prompt a full court to issue a standing order.

The administration’s June 25 complaint alleges that the order is effectively a local rule, and violates the requirements for such rules because they didn’t go through the process including notice and comment. The Justice Department said it would have weighed in on the block if it had had a chance.

The Justice Department also said it approached the Judicial Conference about the order. A judiciary spokesperson declined to comment.

Court in Spotlight

The litigation is certain to draw more attention to a court that’s already in the spotlight nationally.

It’s become a new favored venue for challenges against the Trump administration, as nine of the court’s 10 active district judges were appointed by Democratic presidents. The sole Trump appointee was initially put forward for the seat by Barack Obama.

US District Judge Paula Xinis at the Greenbelt, Maryland courthouse has presided over the case of Kilmar Abrego Garcia, a man who the government admitted was wrongfully deported to a prison in his native El Salvador. But the administration claimed they didn’t have the ability to bring Abrego Garcia back to the US, even after the Supreme Court ordered the government to “facilitate” his return.

Abrego Garcia was eventually returned to the US this month, to face federal human smuggling charges. His attorneys are asking Xinis to issue sanctions against the administration, while the Justice Department argues the case should be dismissed.

The Maryland court will now have to weigh next steps, which include who it’ll hire to represent it in court. The judiciary is typically represented by the Justice Department, an impossibility in this case. A judiciary spokesperson declined to comment on the ability of judges to hire outside counsel, including whether the courts would cover their legal fees.

The judges’ attorneys are likely to argue that they are immune from the litigation, as it was issued as part of their official duties on the court.

Mattice said decisions, like whether the court again changes the order or chooses to fight the lawsuit, are up to the judges.

“That depends entirely on the temperament of the judges in the District of Maryland,” he said.