It is practically unheard of for the federal Justice Department to sue a federal judge over a judicial order. It is frankly unhinged for DOJ to sue 15 judges at once, as the Trump DOJ did this week when it brought a lawsuit against every federal trial court judge in Maryland.
Included as a defendant is Judge Paula Xinis, who has been handling the contentious case of Kilmar Abrego Garcia and had moved to explore contempt against federal officials ignoring her order to bring him back home — over a statewide standing order.
While U.S. Attorney General Pam Bondi’s underlings characterized this order as some sort of enormous judicial overreach, it simply blocks federal officials from being able to very quickly deport people in custody before their habeas corpus cases could be considered by the court.
This limitation can best be understood in the context of the Supreme Court’s own decision affirming that proper the avenue for individuals to contest a removal under the Trump administration‘s invocation of the Alien Enemies Act was precisely through a habeas petition, which invokes a constitutional protection against improper detention.
Presumably, all manner of other potentially unlawful immigration detentions and attempted removals could best be challenged under habeas as well. What the government is trying to do here is to assert that it has the right to skirt these protections by simply removing people quickly before these petitions have any chance at moving forward.
Administration officials like Tom Homan and Stephen Miller have insisted that their indiscriminate immigration crackdown is about law and order, and yet they have treated every legal constraint and judicial limitation with absolute contempt. What they want is not to execute the laws, but to exist above them, and arrest, detain and deport whomever they want with or without justification or due process.
The federal government is, of course, free to express discontent with judicial orders and move to have these overturned. There is an entire process for precisely that, and it’s called an appeal; we have a three-tiered system of the federal judiciary for the express purpose of allowing cases to move up an appeals process until they exhaust that pathway by reaching the Supreme Court.
The Justice Department has not even really tried to explain why exactly it is choosing to engage in this extraordinarily lawsuit as opposed to simply appealing the standing order, but we would have to imagine that it’s a mix of conviction it would lose, and a desire to antagonize and intimidate these judges, which has become part of Trump’s M.O.
It’s important to remember that the administration is engaging in all of this maneuvering in favor of its relatively short-term goals, but all of this precedent will still exist. Is it going to become the norm for attorneys general to directly file suit against individual judges that issue orders they don’t like?
The DOJ is seeking to have this case heard not by the judges it is suing, obviously, but by a separate judge in a different state. Whoever’s desk this ultimately lands on should make quick work of it; the administration will still get its claim that liberal judges are running roughshod over its policies or whatnot, but at least some separation of powers and rule of law will be preserved.
