Trump's DOJ Launches Its Most Innovative and Threatening Assault on the Court System Yet
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You've got to give it to the lawyers in Trump's Department of Justice. They have shown themselves to be ingenious in unearthing obscure laws and pushing unconventional legal strategies in pursuit of the administration's ends. The only problem is that those ends and tactics are often destructive of the rule of law itself.
The latest such case is a lawsuit against all the sitting judges on the federal district court in Maryland . All of them. The suit alleges that a standing order issued by the chief judge of that court is illegal and that each of the other 14 judges (almost all of whom were appointed by Democratic presidents) who serve with him are tainted by it.
That order grants an injunction for two days to anyone who files a writ of habeas corpus challenging a deportation order . It is designed to preserve the court's jurisdiction so that it can hear such challenges in an orderly and timely way, and it has been made necessary by a recent crush of such cases and an effort by the Trump administration to short-circuit due process in a number of them.
Critically, jurisdiction-preserving orders are standard fare in United States courts . They are especially important in a situation where the executive branch has pursued a “deport first, ask questions later” policy intended to get people out of the country before courts can stop them. If the administration succeeds in its suit, it will go a long way to aid it in that draconian effort.
The standing order, first issued on May 21 by Judge George Russell III, directs the clerk of the court to enter an injunction against the government “upon the filing of a Petition for Writ of Habeas Corpus … on behalf of an alien detainee.” Russell's order is designed to prevent the Trump administration from “removing Petitioners in such cases from the continental United States or altering their legal status” before they've had their day in court.
On May 28, Russell amended his order and explained , “the recent influx of habeas petition concerning alien deportees purportedly subject to improper and imminent removal from the United States that have been filed after normal court hours and on weekends and holidays has created scheduling difficulties and resulted in hurried and frustrating hearings in that obtaining clear and concrete information what the location and status of the positioners is elusive.”
Both versions of the standing order say that any injunctions authorized by them are only good “until 4:00 pm on the second business day following the filing of the Petition.” Those orders, as Russell puts it, preserve “existing conditions and the potential jurisdiction of this Court over pending matters while the Court determines the scope of its authority to grant the requested relief.”
They make it possible for people the administration wants to deport “to participate in the adjudication of their requests for habeas relief.” They also make it possible for judges “to evaluate their respective claims for relief based on their in-court testimony that may be offered; and to ensure the Government has a fulsome opportunity to brief and present arguments in its defense.” All of this in an effort to guarantee due process of law and protect the authority of the court.
Again, none of this is unusual, nor would it justify the unprecedented step of suing an entire district's federal judiciary . As the Federal District Court in Maryland explained eight years ago, a “federal court may … issue preservation orders as part of its inherent authority to manage its own proceedings.” That authority, Judge Russell noted, derives from the “ All Writs Act ” which gives courts the right to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The act was passed in 1948 , but its principles can be traced back almost to the start of the republic. Of particular relevance in this regard is the Judicial Act of 1789, which established the federal court system and granted it the right to issue several different kinds of orders.
Injunctions issued under the All Writs Act are “only [to] be issued when necessary to protect a court's underlying subject matter jurisdiction.” And, as one commentator explained in 2019, as if foreseeing the situation to which Judge Russell was responding, “where a party's conduct violates a previously issued court order, the court may use the Act to enjoin such conduct.” Recall, for example, the case of Kilmar Armando Abrego Garcia , who was arrested on March 12 by immigration agents in Maryland. Garcia was quickly sent back to El Salvador even though he had a court order barring him from being sent back where he might face danger.
This, of course, is not an isolated example.
Law professors Leah Litman and Daniel Deacon note how frequently the Trump administration has engaged in what they describe as “'legalistic noncompliance,' a term intended to capture how the administration has deployed an array of specious legal arguments to conceal what is actually pervasive defiance of judicial oversight.”
That strategy has been particularly prevalent in immigration and deportation cases—including Garcia's—where the administration claims a political mandate and plenary power.
The suit brought by the Justice Department's Civil Division against the Maryland Federal District Court judges did not hide the ball about either of those claims. In his view, what Judge Russell did “diminish(es) the votes of the citizens who elected the head of the Executive Branch. Defendants' lawless standing orders are nothing more than a particularly egregious example of judicial overreach interfering with Executive Branch prerogatives—and thus undermining the democratic process.”
The department argues that “district courts lack jurisdiction to hear challenges arising from removal proceedings or to issue orders that enjoin or restrain execution of removal orders.” Its complaint rehearses in great detail the difficult and complex job of immigration enforcement and portrays Immigration and Customs Enforcement agents, who do that job, as victims of an overzealous judiciary.
In a passage clearly intended for the justices of the Supreme Court, who will be ruling on Friday on the use of nationwide injunctions by federal district judges, the suit takes a potshot at the entire federal judiciary. It suggests that those judges have abused their power “to an unprecedented degree.” The Justice Department claims that “in the first 100 days of President Trump's current term, district courts have entered more nationwide injunctions than in the 100 years from 1900 to 2000.”
George Orwell would marvel at the way the administration in this lawsuit twists language in the service of freeing itself and ICE of effective legal constraints. In its attack on Judge Russell's standing order, the department says that what is needed in cases where immigrants seek injunctive relief is the kind of careful and individualized consideration that its “deport first, ask questions later” policy effectively precludes.
The suit against Judge Russell and his colleagues is part of the Trump administration's strategy of using every opportunity to accuse judges of being crass partisans or people eager to abuse their power. In this instance, instead of attacking them individually, the DOJ goes after 15 all at once, including several who have shown themselves willing to stand up to the administration in earlier cases.
The New York Times gets it right when it says , “the spectacle of the Trump administration suing an entire district court made clear just how ugly and bizarre the relationship between the executive and judicial branches has become.” Ugly and weird it is, but it is much more than that.
It is the latest dangerous step in the administration's war on the judiciary and the rule of law itself. If the lawsuit succeeds, it will strip the courts of a valuable tool to stop the administration from turning courts into empty vessels, incapable of protecting the rights of individuals from its rapacious appetite for power.
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