Walter Olson
A brushback pitch, according to the Baseball Reference site, “is a pitch thrown close enough to the batter to intimidate him.” That’s a fair description of the lawsuit the Trump administration aimed at all 15 of the federal district court judges in Maryland in their personal, not just official, capacities over an obscure court rule in deportation cases. Federal judge Thomas Cullen has now dismissed what he deemed this “novel and potentially calamitous” suit, but its significance should not pass unnoted.
The case isn’t over; the US Department of Justice promptly filed a notice saying it intends to appeal to the Fourth Circuit US Court of Appeals. That should be fun since the practice DOJ sued over—barring the deportation of a claimant until the court gets a chance to look at the case—is one the Fourth Circuit itself has followed for years, and in more stringent form than the Maryland judges.
Faced with a wave of habeas corpus actions arising from Trump’s deportation campaign, the Maryland district judges this spring had adopted standing orders requiring the government to wait two business days before spiriting a captive out of the state or country, lest the court’s jurisdiction, along with the rights of a claimant who might have a valid case, be defeated by such removal. It fits into an old and familiar category of judicial powers to issue orders preserving their jurisdiction, such as orders that disputed physical assets (or, in settings like custody disputes, children) not be removed from the court’s jurisdiction without approval.
Attorney General Pam Bondi & Co. seemed to see this as insufferable lèse-majesté, infringing on the Executive Branch’s supposedly plenary power to enforce immigration law as it likes. But as Cullen noted in his opinion, “many” of the federal courts of appeal likewise impose temporary stays of removal, with the Fourth Circuit typically staying removal for 14 days, as compared with which the District of Maryland’s two-day stay “appears considerably more modest.”
Cullen, a Trump appointee, usually sits in Roanoke, Va., but was assigned to hear the case because there was no one local left to hear it, what with the complaint having forced the recusal of every single federal judge in the Old Line State. His careful opinion accepts most of the arguments put forth on behalf of the judges by a team led by Paul Clement in an excellent brief that can be read here. There is no cause of action that supports DOJ’s demand for legal relief, he found; it runs up against both sovereign immunity and judicial immunity; there is no standing; a few stray cases claimed to furnish precedent do not in fact supply authority.
Lack of substantive merit aside, Cullen noted that if the suit were allowed to go forward, it would sow enormous disruption and friction in the judiciary and between the judiciary and executive. Not only the 15 judges themselves and their clerk of court, but also executive branch officials such as Bondi and Homeland Security Secretary Kristi Noem “would potentially be required to sit for depositions and produce documents, including emails and other internal communications.…These discovery demands, in turn, would almost certainly trigger claims of privilege—executive, judicial, deliberative-process, and the like—and invariably compound this constitutional standoff into epic proportions.” (The defendants’ brief also points out that the Maryland judges had been obliged to retain private counsel to defend the action—something it’s unlikely Bondi or Noem would have been obliged to do.)
Had the administration simply wanted to challenge the standing orders in a regular manner, Cullen wrote, it had two perfectly straightforward ways of doing so: raising the issue in one of the habeas proceedings and taking it up on appeal, or “petitioning the Judicial Council of the Fourth Circuit, which has the authority to rescind or modify local court rules.” In fact, as Clement has pointed out, following those channels might already have gotten DOJ a clear answer one way or the other on its claims. But of course it wouldn’t have served as a brushback pitch.
Earlier this month, I wrote about one of the highly dubious claims the DOJ was making, namely that legal checks on a president’s power “diminish the votes of the citizens who elected him.” Cullen had some choice words related to this issue, though he phrased things differently. He noted that the “executive branch is not the sole sovereign in the United States of America”:
As the Supreme Court has explained, the “Framers of the Constitution sought to provide a comprehensive system” that made the United States of America—not a single branch—the sovereign, by “dividing and allocating the sovereign power among three co-equal branches.” United States v. Nixon, 418 U.S. 683, 707 (1974). The coordinate branches together form the government of the United States of America, and together they are the sovereign in this Nation…all branches—and the public officials who serve in them—share the same core sovereign interest: To support and defend the Constitution. [emphasis in original]
True, assertions of national sovereignty do receive great and routine deference in federal courts. But that’s when they derive from the authority of the US government as against other entities, not the claimed authority of the executive to exercise control over a judicial branch that is just as much a part of national sovereignty as it is.
While Cullen, in his opinion, mostly handled the Trump claims in a polite and tactful way, he did include a footnote critical of administration officials and spokespersons who “have described federal district judges across the country as ‘left-wing,’ ‘liberal,’ ‘activists,’ ‘radical,’ ‘politically minded,’ ‘rogue,’ ‘unhinged,’ ‘outrageous, overzealous, [and] unconstitutional,’ ‘[c]rooked,’ and worse.”
“Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate,” he wrote.
In dismissing the suit, Judge Cullen did not seek to draw any inferences about the malign intent with which it was filed. But we are free to do that.