Judges Pick and Choose among Federal Laws

By Dan Cadman on May 18, 2020

Not long ago, my colleague Art Arthur discussed a decision by U.S. District Court Judge Royce Lamberth, who ruled that the U.S. Marshals Service has no authority to honor detainers filed by Immigration and Customs Enforcement (ICE).

To my way of thinking, it was a bizarre decision and, as Arthur says, a golden opportunity for the federal government to press the case through appeal and ultimately bring it before the Supreme Court (if Lamberth's decision isn't reversed by the Circuit Court first). I wanted to add a few words to Arthur's exposition that bear thinking about.

In the decision and order, technically a "memorandum opinion", Lamberth makes much of only one of the provisions of law governing the Marshals Service, 28 U.S.C. Sec. 564, when in fact there are a series of such provisions, running from 28 U.S.C. Secs. 561 through 569, several of which are relevant (as Arthur has discussed). But that particular provision seems to me one of the least applicable to the question of the Marshals Service's authority to honor immigration warrants:

Powers as sheriff. United States marshals, deputy marshals and such other officials of the Service as may be designated by the Director, in executing the laws of the United States within a State, may exercise the same powers which a sheriff of the State may exercise in executing the laws thereof.

Keep in mind that the actual controversy at hand had to do with aliens arrested in the District of Columbia (D.C.), not within the boundaries of any state. Even most grade-school children realize that D.C., our nation's capital, is a federal district. When marshals make arrests or hold prisoners for violation of D.C. statutes, they do so only because Congress has extended to the city government the privilege of self-rule. Were Congress to pull that authority — which would be within its plenary power to do — it would be Congress itself making the laws for the jurisdiction.

Thus, Judge Lamberth has curiously asserted that deputy U.S. marshals, federal officers of the executive branch, are barred from cooperating with agents of Immigration and Customs Enforcement (ICE), other federal officers of the executive branch, in a uniquely federal jurisdiction. None of this has anything to do with deputy marshals acting as sheriffs in a state jurisdiction.

But that is not the only fly in the ointment of Judge Lamberth's logic. He seems to object to the fact that immigration warrants are civil/administrative in nature. Such a warrant, in his view, "is not a true warrant, as it is not issued by an independent judicial officer; instead, it is issued by an ICE agent, causing concerns about a lack of neutrality." As I've noted before, Congress in its wisdom created an alternate system of due process for aliens (which is entirely within its constitutional prerogative) because it recognized that procuring immigration warrants via the judiciary would a) be an inappropriate standard given that expulsion proceedings are not criminal in nature; and b) hold the very real risk of putting the entire federal judicial system into paralysis because of the volume of immigration arrests made every year. Requiring judicial warrants would in short order preclude the possibility of federal judges going about their own "primary mission" (a phrase the judge finds objectionable) of adjudicating cases.

It's also ironic that Judge Lamberth discounts the legitimacy of immigration warrants simply because they are not issued by judicial officers — because they are specifically provided for under federal law. Here is the relevant portion of 8 U.S.C. Sec. 1226:

Apprehension and detention of aliens. (a) Arrest, detention, and release. On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.

Using the judge's logic, we might equally question the legitimacy of warrants, or any other legal processes, issued by federal magistrates — because they, too, are statutory creations. They are not Article III judges created by the U.S. Constitution. U.S. magistrates only exist because Congress (the same Congress that created the mechanism for issuing immigration warrants) passed a series of laws (28 U.S.C. Secs. 631 through 639) authorizing them. 28 U.S.C. Sec. 631, says in pertinent part:

Appointment and tenure. (a) The judges of each United States district court and the district courts of the Virgin Islands, Guam, and the Northern Mariana Islands shall appoint United States magistrate judges in such numbers and to serve at such locations within the judicial districts as the Judicial Conference may determine under this chapter.

Note that magistrates are appointed by the judges themselves. They do not go through a Senate advice-and-consent process, as the Constitution requires that Article III judges must. What's more, their legal authorities are carefully circumscribed by 28 U.S.C. Sec. 636 ("Jurisdiction, powers, and temporary assignment").

I raise the fact that magistrates came into existence solely because of congressional enactment because it was subsequent to a decision by a magistrate that a particular illegal alien was not a flight risk — in relation to his criminal proceeding in District of Columbia Superior Court — that the Marshals Service honored the immigration warrant and detainer and passed him into custody of the ICE agents, which in turn led to the lawsuit, and in turn again led to Judge Lamberth's ruling.

In sum, Judge Lamberth seems to have gone beyond the boundaries of judicial neutrality himself — the very judicial neutrality that he has made so much of in his memorandum order — by picking and choosing which federal statutes merit obeisance and which do not.

A part of me sincerely hopes that the D.C. Circuit Court of Appeals makes the error of siding with Judge Lamberth because I can think of few fact circumstances in which the odds are better stacked for the federal government to prevail before the Supreme Court. It's an important issue and, as Arthur so sagely noted, "The attorney general should seize that opportunity."