President Donald Trump’s second term is marked by frequent disputes between the executive and judicial branches of government – 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’s 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 – an appeal – could effectively be avoided.
Why We Wrote This
A lawsuit by the Trump administration’s 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’s separation of powers.
“If this lawsuit succeeds, I don’t see how a president couldn’t sue a judge whenever they do something he doesn’t like,” 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 célèbre 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 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.
“The lawsuit itself is extremely strange, but the underlying action of the District Court in Maryland is also unprecedented and extremely strange,” says Professor McConnell.
“I have to conclude that these things are not being done for the purpose of getting to a particular legal result, but rather it’s political theater,” he adds.
Andrew Shurtleff/The Daily Progress/AP/File
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’t appear to be any precedent for the U.S. itself – through the U.S. Department of Justice – 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 “judicial coup.” The Justice Department has filed misconduct complaints against two judges. Republican members of Congress have launched efforts to 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’s efforts to return him to the U.S. In a statement last week, the Department of Homeland Security described Judge Xinis as “unhinged” and “publicity hungry.”
While the case appears to bring the White House’s 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 ruled 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 “difficulties” that judges on the court had been having reaching “hurried” decisions in the habeas deportation cases.
These standing orders, the Maryland district judges say, are a “modest exercise of docket management” in response to a “demanding and nearly unprecedented” shift in immigration enforcement.
“While district courts had less occasion over the past few decades to confront a significant volume of immigration litigation, that has changed in recent months,” the judges wrote in a motion to dismiss the lawsuit.
The government, meanwhile, wrote that the orders represent “an extraordinary form of judicial interference in Executive prerogatives.”
The “unlawful” orders, the Justice Department added, have exacted “irreparable harm on the Executive Branch by intruding on its [authority] over immigration enforcement.”
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.
“A stay of deportation is a judicial order. It may be temporary, but it’s still an actual legal order,” he adds. And “Every order issued by a federal court must be issued by a federal judge.”
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 “some skepticism” about allowing the lawsuit to proceed given the separation-of-powers implications.
“We [could] get into a situation where individual judicial defendants are subject to depositions. Their internal correspondence, emails, would be subject to discovery,” he added, The Washington Post 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.
“That [would] put a lot of pressure on the [judicial] system externally,” she adds.
“There’s no right way out, even if judges are to treat themselves the same way they’ve treated members of Congress and the president.”
Whatever the ruling this week, the decision will likely be appealed, and it could soon reach the U.S. Supreme Court.
