Trump takes on the federal judiciary 鈥� of an entire state
President Donald Trump鈥檚 second term is marked by frequent disputes between the executive and judicial branches of government 鈥� and perhaps nowhere is this conflict embodied more literally than in a case coming to a head this week in Maryland.
On one side of the lawsuit, you have the U.S. Department of Justice. On the other, you have the entire U.S. District Court for the District of Maryland. At issue: standing orders imposed by the court that automatically block deportations of certain immigrant detainees for two business days. The Maryland judges have asked for the case to be dismissed, and Judge Andrew Cullen has said he will rule on the motion by Labor Day.
The case, U.S. v. Russell, centers on a legal question that the Justice Department could well have a winning argument for, according to legal experts. But in naming 15 federal judges as defendants, the seemingly unprecedented case could have significant implications for the Constitution鈥檚 separation of powers and the rule of law. Should the Justice Department prevail, some legal observers warn, the executive branch would be able to sue any judge or court it disagrees with. The normal recourse for challenging an adverse legal ruling 鈥� an appeal 鈥� could effectively be avoided.
Why We Wrote This
A lawsuit by the Trump administration鈥檚 Department of Justice is unprecedented in that it sues all the federal District Court judges in Maryland at once. The potentially high-stakes case concerns deportation and the Constitution鈥檚 separation of powers.
鈥淚f this lawsuit succeeds, I don鈥檛 see how a president couldn鈥檛 sue a judge whenever they do something he doesn鈥檛 like,鈥� says Michael McConnell, a former federal appeals court judge and a professor at Stanford Law School.
The Maryland court has also been the venue for a cause c茅l猫bre for Trump supporters and critics. The Justice Department filed this case, U.S. v. Russell, three months after a Maryland judge ruled that the administration had mistakenly deported Kilmar Abrego Garcia, a聽Salvadoran immigrant the government claims is a gang member. Mr. Abrego Garcia has since been returned to the United States, and is now facing deportation to Uganda.
While the U.S. v. Russell case raises an important legal question, the choice to sue the entire court could make victory harder for the Justice Department, experts say. The political undertones of the case are hard to ignore.
鈥淭he lawsuit itself is extremely strange, but the underlying action of the District Court in Maryland is also unprecedented and extremely strange,鈥� says Professor McConnell.
鈥淚 have to conclude that these things are not being done for the purpose of getting to a particular legal result, but rather it鈥檚 political theater,鈥� he adds.
A lawsuit against 15 judges
There have been a handful of cases in which members of the executive branch have sued the judicial branch, but there doesn鈥檛 appear to be any precedent for the U.S. itself 鈥� through the U.S. Department of Justice 鈥� bringing a lawsuit against the judiciary.
It also comes as administration officials, including Mr. Trump himself, have repeatedly criticized court rulings and individual judges. An administration official described one adverse decision as a聽 The Justice Department has聽 against two judges. Republican members of Congress have launched efforts to聽impeach three judges who ruled against the president.
Now, 15 judges are defendants in the Russell case. One of them, Judge Paula Xinis, ruled that the government illegally deported Mr. Abrego Garcia and has repeatedly criticized the government鈥檚 efforts to return him to the U.S. In a聽 last week, the Department of Homeland Security described Judge Xinis as 鈥渦nhinged鈥� and 鈥減ublicity hungry.鈥�
While the case appears to bring the White House鈥檚 criticism of the courts from the headlines to the courtroom, the case itself is focused on a specific grievance.
In May, the Maryland District Court issued a standing order that effectively blocked for two days the deportation of any individual challenging their removal through a habeas corpus petition. Weeks earlier, the U.S. Supreme Court had that removals under an 18th-century wartime law invoked by the Trump administration could only be challenged via federal habeas petitions. The District Court soon issued an amended standing order, citing 鈥渄ifficulties鈥� that judges on the court had been having reaching 鈥渉urried鈥� decisions in the habeas deportation cases.
These standing orders, the Maryland district judges say, are a 鈥渕odest exercise of docket management鈥� in response to a 鈥渄emanding and nearly unprecedented鈥� shift in immigration enforcement.
鈥淲hile district courts had less occasion over the past few decades to confront a significant volume of immigration litigation, that has changed in recent months,鈥� the judges wrote in a聽 to dismiss the lawsuit.
The government, meanwhile,聽 that the orders represent 鈥渁n extraordinary form of judicial interference in Executive prerogatives.鈥�
The 鈥渦nlawful鈥� orders, the Justice Department added, have exacted 鈥渋rreparable harm on the Executive Branch by intruding on its [authority] over immigration enforcement.鈥�
Legal arguments at play
The government has a strong legal argument, some experts say. But the expansive nature of its lawsuit means the Justice Department may have handicapped itself by overreaching.
It is unusual for a federal District Court to issue standing orders like these, which automatically apply to certain cases, experts say. By contrast, federal appeals courts, which are tasked with hearing appeals of deportation orders issued by immigration courts, have long-standing rules permitting such orders.
Facing an increase in habeas petitions from immigrants, the Maryland District Court effectively created its own rule to handle the spike. The move is of questionable legality, says Professor McConnell.
鈥淎 stay of deportation is a judicial order. It may be temporary, but it鈥檚 still an actual legal order,鈥� he adds. And 鈥淓very order issued by a federal court must be issued by a federal judge.鈥�
However, the potential ripple effects of the government successfully suing an entire District Court bench could overwhelm its legal argument.
The government never needed to sue the entire Maryland District Court bench, legal observers say. The Justice Department could have challenged the orders in an individual deportation case, where the stakes would be much lower. Instead, Judge Cullen said earlier this month at a hearing about the case that he had 鈥渟ome skepticism鈥� about allowing the lawsuit to proceed given the separation-of-powers implications.
鈥淲e [could] get into a situation where individual judicial defendants are subject to depositions. Their internal correspondence, emails, would be subject to discovery,鈥� he added, reported.
And it would put anyone overseeing the case in an uncomfortable position. Judges are typically immune from lawsuits, similar to how members of Congress and former presidents have some legal immunity.
But having to invoke that immunity could be damaging, especially for a judiciary that has faced persistent attacks on its credibility, says Payvand Ahdout, an associate professor at the University of Virginia School of Law.
鈥淭hat [would] put a lot of pressure on the [judicial] system externally,鈥� she adds.
鈥淭here鈥檚 no right way out, even if judges are to treat themselves the same way they鈥檝e treated members of Congress and the president.鈥�
Whatever the ruling this week, the decision will likely be appealed, and it could soon reach the U.S. Supreme Court.
