On May 27, I analyzed the flaws and failings in a standing order issued by the U.S. District Court for the District of Maryland (D. Md.), which give every alien facing removal who files the proper papers an automatic stay. On June 24, DOJ sued all 15 judges in the D. Md. to block an amended version of that order — filing its complaint in the same court, the D. Md. Who watches the watchmen? We’ll soon find out.
The Basics of the Orders
The standing order I referred to on May 27 was amended in a second standing order issued on May 28. Not that it makes much difference: Both orders share the same defects and if anything, as I’ll explain below, the rationale for second one makes it even more questionable.
Briefly, however, under both orders, DHS is “ENJOINED and RESTRAINED” from deporting any alien claiming to be in ICE detention in Maryland who files a petition for writ of habeas corpus with the D. Md. and who provides the court with his or her name and “A#” (alien number), for a period of two business days after the clerk of the court forwards that information to DOJ and DHS.
In addition, under those orders, DHS is “ENJOINED and RESTRAINED” from “altering [the] legal status” of such aliens for the same period.
Practical Effects
The complaint starts by addressing practical issues with the orders: They “invite aliens to allege that they were in Maryland at the time of filing in order to take advantage of the Orders” and don’t give the government “any opportunity to contest the alien’s assertion of being ‘located in the District of Maryland’ at the time of a habeas filing” (apparently, one alien was in Texas when a petition was filed); and are “operationally challenging and interfere[] with ICE’s mission to administer and enforce the immigration laws and protect public safety and national security”.
On that latter point, immigration enforcement is national in scope, and DHS rarely pays attention to state boundaries (let alone federal courts’ jurisdictions) in making detention decisions. That’s particularly true in states like Maryland, where bedspace is limited because the legislature has placed significant restrictions on ICE’s ability to detain aliens.
Then there’s the fact, as DOJ notes, that the court’s orders complicate deportation logistics. As the complaint explains:
The Orders can ... adversely impact the operational planning necessary to coordinate a removal, especially a removal of an alien to a country that is recalcitrant about accepting the alien. Removals can take months of sensitive diplomacy to arrange and often do not completely come together until the last minute. A delay can undo all of those arrangements and require months of additional work before removal can be attempted again.
“Recalcitrant” countries are nations that either slow-walk or ignore U.S. government requests for the paperwork and authorizations needed to return one of their nationals.
Convincing even willing foreign governments to take back their nationals can involve negotiations and often involve limited windows of time for such deportations to occur. Under the D. Md. orders, an alien facing removal can essentially push their deportations past those limits by filing a habeas petition.
In that vein, required “travel documents” usually have expiration dates, and as the government argues: “An automatic stay can cause removals to be delayed until after those travel documents have expired and removal is thus no longer possible without securing new travel documents.”
Then, there are the impacts on the aliens themselves.
As noted, the standing orders prevent DHS from altering aliens’ legal statuses while they are in effect, and the government contends that those provisions:
bar immigration judges from proceeding in the alien’s immigration proceedings, including by entering a removal order or adjudicating any applications for immigration relief, such as asylum, withholding of removal, protection under the Convention Against Torture, voluntary departure, and other forms of immigration relief. The Orders likewise may bar courts of appeals from acting on a pending petition for review, which could change the alien’s legal status, and similarly preclude DHS from implementing an order resolving a petition for review.
The Orders also bar the alien from receiving other immigration-related benefits that would change the alien’s legal status, including temporary protected status, discretionary parole, work authorization, and the like. [Emphasis added.]
Procedural Issues
In my earlier analysis, I concluded the first standing order violated at least two constitutional principles (the judicial nondelegation doctrine and the Article III, sec. 2, cl. 1 “case or controversy” clause), and also explained why that order didn’t comport with the standards for granting injunctive relief and ran afoul of “court-stripping” provisions in section 242 of the Immigration and Nationality Act (INA).
Of course, DOJ doesn’t usually have the freedom to wax constitutional that think-tank pundits do and limits its claims for relief largely to procedural issues with the standing orders and statutory restrictions.
As I noted in May, injunctive relief is governed by rules and standards established through precedential decisions issued by the Supreme Court and the U.S. courts of appeal.
In its 2008 opinion in Winter v. NRDC, for example, the justices established a four-factor test for granting a injunctive relief:
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.
Those same standards roughly apply to temporary restraining orders (TROs), as well.
But as DOJ notes in its complaint: “The Orders purport to issue a preliminary injunction or temporary restraining order automatically, without consideration of the four-factor test prescribed by Supreme Court precedent in any particular case. They are therefore unlawful.”
The government further argues that the orders don’t comply with the “procedural and substantive requirements set forth in Federal Rule of Civil Procedure 65”, either.
Under that rule, absent notice to the opposing party (ex parte), a TRO can only be issued if the movant provides “specific facts in an affidavit or a verified complaint” that “clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition”, with a certification from counsel “in writing” as to the efforts taken to notify the opponent “and the reasons why” such notice “should not be required”.
There are no such requirements in the standing orders for the issuance of an ex parte TRO, however.
Similarly, the rule states in its first clause: “The court may issue a preliminary injunction only on notice to the adverse party”, but again no such notice is required under the D. Md.’s orders.
And, according to the complaint, those are just the start of the defects in the standing orders under Rule 65.
Court-Stripping Provisions under the INA
As the complaint explains (and as I noted in May), in section 242(g) of the INA:
Congress has stripped federal courts of jurisdiction to hear “any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien” under the INA, other than in a petition for review under [section 242 of the INA], “notwithstanding any other provision of law ... including [writs of habeas in] section 2241 of title 28, United States Code.” ... Section [242(g)] thus deprives district courts of jurisdiction to issue orders that stay the execution of removal orders and to hear cases challenging the execution of removal orders. [Emphasis added.]
Not that such aliens have no relief. As I recently noted, the so-called “zipper clause” in section 242(b)(9) of the INA consolidates federal court appeals “in one final, post-administrative review before the circuit courts” — but not the lower district courts.
Congress’s express intent in sections 242(b)(9) and 242(g) was to prevent district courts from engaging in piecemeal (and last minute) considerations of immigration-enforcement matters by channeling aliens’ claims to the circuit courts.
But as DOJ argues:
Despite all of these [INA] restrictions, the Orders purport to stay the execution of removal orders upon filing of a habeas petition under 28 U.S.C. § 2241, without any consideration of whether there is even a colorable basis for argument that the Court has jurisdiction over the matter. They expressly provide that Defendants are “ENJOINED and RESTRAINED” from “removing Petitioners from the continental United States.”
Consequently, as the complaint contends: “The Orders accordingly exceed the Court’s jurisdiction and are invalid and unlawful.”
Why the District Court Issued Its Orders
As noted at the outset, the D. Md. amended its first standing order, which never explained why the court was taking this questionable step, by offering the following rationale in the second one:
The recent influx of habeas petitions concerning aliens purportedly subject to improper and imminent removal from the United States that have been filed after normal court hours and on weekends and holidays has created scheduling difficulties and resulted in hurried and frustrating hearings in that obtaining clear and concrete information about the status of the petitioners is elusive.
“Accordingly, in order to preserve existing conditions and the potential jurisdiction of this Court while Court determines the scope of its authority to grant the requested relief”, the D. Md. explained, it issued its order.
Respectfully, odd hours and weekends can come with being a federal judge (just ask the Supreme Court), but if the response to an “influx of habeas petitions concerning aliens purportedly subject to improper and imminent removal from the United States” is to grant them all stays, the D. Md. is likely just going to get a much bigger wave of such claims.
The Media Response
It’s certainly unusual for DOJ to sue judges, let alone all of the judges on a court, and sue them in that same court, but then these are not your usual standing orders, either.
The media response to this suit is what you likely would have expected.
The Washington Post, for example, contends this case “marks an escalation in the Trump administration’s attacks on the U.S. judiciary”, roughly parallelling the New York Times headline: “Trump Administration Sues Federal Bench in Maryland, Escalating Fight With Judiciary”.
Note that the department claims it first took its concerns to the Judicial Conference (which oversees the federal courts), but in response the judges in the D. Md. “have made apparent that they intend to keep the Amended Standing Order in place indefinitely”.
Perhaps DOJ could have appealed one of the affected cases to the Fourth Circuit, but as the complaint explains: “Piecemeal appeals of cases in which the Orders are entered ... may not present a sufficient opportunity to determine the Orders’ facial validity.”
With the complaint now filed, the judges on the D. Md. must almost definitely be forced to recuse themselves from hearing it, which means either Chief Judge Albert Diaz of the Fourth Circuit or Chief Justice John Roberts will have to assign someone to do that job.
That said, if the Supreme Court would just issue an opinion explaining the congressional restrictions on district court jurisdiction in immigration cases in section 242 of the INA, it would likely go a long way to resolving most of these issues.
President Trump often takes a confrontational posture with respect to the federal judiciary (among others), but if any court issued automatic stay orders like the ones in the U.S. District Court in Maryland, it would have been incumbent on DOJ to challenge them, regardless of who was in the White House.
Who watches the watchmen? We’ll soon find out.