DOJ launches unusual lawsuit against entire federal district court in Maryland

Retired federal judge Andre Davis learned the Justice Department had decided to sue his former colleagues when he boarded a flight to Charlotte, N.C., to attend a judicial conference.

His fellow passengers included several of the district court’s 15 judges, who now find themselves on the other end of an unusual court case.

“It’s outrageous that they actually named individually in their official capacities all 15 judges on the court,” said Davis. “And so you have to ask yourself, ‘What is going on here? What kind of performance? What was the audience for this?'”

Davis said what’s going on is an attack on judicial independence, at a time when federal judges are facing a rise in threats of violence and impeachment simply for doing their jobs. But the Justice Department says it’s trying to stop a case of judicial overreach. The case is likely to end up getting appealed to higher courts.

The dispute in Maryland began in May, when the chief judge there ordered a 48-hour pause in every case where an individual migrant had petitioned to try to block their removal from the U.S. with a habeas petition.

“The reason the court implemented it is because there have been so many requests for habeas petitions and so many people who are being subject to, to abrupt, precipitous deportation orders and courts need time to be able to consider these requests,” said Emily Chertoff, a professor at Georgetown University Law Center who closely follows immigration issues.

Habeas corpus petitions are used by people trying to prevent unlawful imprisonment by petitioning a court to review the legality of their detention.

Lingering in the background is the case of Kilmar Abrego Garcia. He’s the Maryland man who was deported to El Salvador in what the Justice Department later called an “administrative error.” After weeks in a brutal prison, he’s now back in the U.S., fighting criminal charges here.

Accused of undermining executive branch

Ramping up immigration enforcement is one of the top priorities of the Trump administration. Attorney General Pam Bondi said the court order in Maryland was overreaching and undermined the executive branch, when the Justice and Homeland Security departments sued the federal court there last month.

“Like other government officials, judges sometimes violate the law,” the Justice Department wrote in court papers last week. “This case involves an extraordinary form of judicial interference in Executive prerogatives.”

Andrew Arthur is a resident fellow at the Center for Immigration Studies who’s criticized the order by the chief judge in Maryland. The center advocates for lower levels of immigration into the U.S.

“It’s an aggressive move by the DOJ but arguably this is an aggressive move by the district court,” Arthur said.

Arthur said lower court judges do not have jurisdiction to impose these kinds of temporary pauses on deportations—and that the DOJ argues in court papers that it tried to reach out to the body that oversees the federal courts before filing a lawsuit.

“Injunctive relief itself is supposed to be exceptional, and yet through its standing order the district court has made it not only mundane but automatic,” he said.

Last month, the Supreme Court limited courts’ ability to impose universal injunctions when it issued an opinion last month in a case about birthright citizenship— though the situation in Maryland concerns limited injunctions in response to individual habeas petitions, not nationwide orders.

Prior lawsuits against court under Clinton

It’s rare for the Justice Department to sue a federal court. But the Trump DOJ says it has happened before. Their court briefs cited a case during the Clinton administration, when then-U.S. attorney and now Sen. Sheldon Whitehouse (D-Rhode Island.) sued the court in Rhode Island over a rule about issuing subpoenas to attorneys.

“It’s not unprecedented for litigants to sue a judge in order to say the judge is taking an action and we think the judge’s action is wrong and we want the judge’s action to be stayed,” said Chertoff, of Georgetown Law Center.

Most of the time, it’s the job of Justice Department lawyers to defend a judge who’s being sued. But this time, it’s the DOJ doing the suing, so the judges in Maryland have enlisted noted conservative lawyer Paul Clement to represent them.

The case has been moved out of Maryland, since the entire district court bench is a defendant. To avoid a conflict of interest, the court clerk is also recused from any administrative tasks related to the case—because the DOJ is suing the clerk, too. Instead a deputy will handle any “ministerial” tasks.

U.S. District Judge Thomas Cullen, who’s based in Roanoke, Va., will be in charge. He was appointed to the bench by President Trump during his first term in office.

For Andre Davis, who served on both the district court and the U.S. Court of Appeals for the Fourth Circuit, the episode is part of a broader breakdown in civility and respect between the branches.

To respond, he and 50 other retired judges are working with a nonpartisan group called the Keep Our Republic’s Article Three Coalition, referring to the article of the U.S. Constitution that empowered the judiciary branch.

“We have come together to raise our voice in unison to defend the rule of law, to push back against dangerous and unwarranted attacks against judges and against the judiciary in general, threats to disobey court orders, all of which truly undermine the rule of law and really, the foundations of our democracy,” Davis said.

Legal experts predicted the case against the Maryland judges could end up at the Supreme Court one day.