Somewhere in the Department of Justice, a light flickered and someone fresh off losing a night of Constitution-themed bar trivia with Pete Hegseth decided to sue the entire bench of the U.S. District Court for the District of Maryland. Every. Single. Judge. Plus the Clerk. And the court itself.
In that court.
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The complaint, which reads like it was drafted at a sovereign citizen potluck, is a broadside against the Maryland federal courts for imposing a standing order requiring two business days between someone filing a petition for habeas relief and the Trump White House disappearing that person to an El Salvadoran slave camp.
And lest you think the sovereign citizen comparison is too much, the complaint goes into unrelated grievance farming in paragraph 2… before it even gets into the instant dispute!
Despite these elementary principles, in recent months and years, district courts have used and abused their equitable powers to interfere with the prerogatives of the Executive Branch to an unprecedented degree. 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, requiring the Supreme Court to intervene again and again in recent weeks to pause the unlawful restraint of the President’s exercise of core Article II powers.
It feels like some of us were looking for nationwide injunction reform back when anyone could forge a library card in Amarillo and strike down abortion treatments in Chicago. I wonder where these folks were then.
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Psst. They were in Amarillo.
Anyway, the DOJ’s jeremiad over injunctive relief tangentially relates to the Maryland order because, through the constitutional funhouse mirrors over at DOJ, this 48-hour processing break is an “automatic injunction” giving every petitioner the equivalent of an exploding preliminary injunction regardless of the circumstances underlying the case. These are the same people who scream bloody murder and insinuate foul play whenever they aren’t given a week to brief a temporary restraining order pending full briefing so it’s a natural extension from there to “it’s UNLEGAL that we can’t preemptively moot habeas petitions.”
To be clear, the order does not actually require the court to decide the order or even hear it — it just grants the courts 48 hours to keep up with the administration’s escalating and haphazard immigration enforcement efforts. As this administration has already taken the public stance that once they get someone over international waters they no longer have to acknowledge due process, you can understand why a court might adopt a cooling off period before a petitioner gets ghosted out of the country.
That’s just docket triage.
This isn’t even a fringe interpretation of the court’s proper function. THE SUPREME COURT of all institutions unanimously ruled that these deportees must be afforded due process and, for the purposes of the Alien Enemies Act, that explicitly manifests itself in the form of a writ of habeas corpus. The DOJ has taken to openly misquoting that opinion so they clearly don’t care about it and Kristi Noem has no idea what the fuck habeas even is, but for the rest of us, especially the judges of the District of Maryland, that decision tends to suggest that habeas has a role to play in ICE’s summer stock presentation of The Purge.
In particular, district courts lack jurisdiction to hear challenges arising from removal proceedings or to issue orders that enjoin or restrain execution of removal orders.
Shockingly, the next sentence is not about how the gold-fringe on the courthouse flags makes them really maritime courts. It’s not much more coherent though.
Congress has instead expressly and intentionally channeled challenges to removal proceedings to a specific process in the courts of appeals and imposed various other bars on judicial review. Defendants’ automatic injunction thus extends relief as of right that district courts entirely lack jurisdiction to issue.
And in those cases… the government will win. When the government mistakenly nabs a U.S. citizen off the street saying he’s a gang member from Agrabah, that person is going to have a habeas case that probably should get heard before he ends up in South Sudan.
The Orders can also adversely impact the operational planning necessary to coordinate a removal, especially a removal of an alien to a country that is recalcitrant about accepting the alien. Removals can take months of sensitive diplomacy to arrange and often do not completely come together until the last minute. A delay can undo all of those arrangements and require months of additional work before removal can be attempted again.
Months, eh? Good thing this is only two days then!
These are the people who held a guy in El Salvador for 83 days after they knew they sent him by mistake. They kept Mahmoud Khalil locked up for 104 days for free speechifying. These folks don’t exactly have a fire under their asses to get their work done.
The government keeps stepping on rakes as it attempts to articulate a harm because every “harm” it comes up with applies to the mere existence of habeas corpus, not the order. The quasi-cognizable legal theory in this case is that the courts should have to issue individual 48 hour stays for each petition filed. OK… but all of the government’s bitching and moaning about bed space and the freedom to magic up “delicate diplomacy” at a moment’s notice would still happen. Without the standing order it would hypothetically happen… less? That’s not particularly compelling.
Trump’s goons, as they say, protest too much. They can’t deal with a 48 hour window to paper up a quick habeas response because they don’t have one. Making this a literal federal case only shines a light on this. Not to give the administration advice in evil, but if they just kept their mouths shut they’d succeed with the overwhelming majority of these deportations, both because the courts have made habeas cases hard to win and, more importantly, because most of these people probably don’t realize they even have habeas rights to exercise!
They’ve basically Streisand Effect-ed the Constitution, which… thanks, I guess?
But winning this case probably isn’t the goal as much as putting on a pity party pageant for the audience in the White House. Oh, the mean judges are out to get you, sir, but we’re fighting for you because they’re a bunch of radical hacks (even if you appointed one of them). Pure sycophancy in the form of legal process.
Every unlawful order entered by the district courts robs the Executive Branch of its most scarce resource: time to put its policies into effect. In the process, such orders diminish the votes of the citizens who elected the head of the Executive Branch.
Calm down sport. The judges aren’t suspending elections — that’s for the Supreme Court in a couple years — they’re making sure no meritorious claims get lost in a sea of paperwork. AT THE COST OF TWO DAYS.
Just performative venting so Pam Bondi has something to talk about at the next North Korea inspired cabinet meeting between Sean Duffy explaining that America doesn’t really need Newark Airport anyway and RFK Jr. leading a teach-in about “balancing the humors.”
Just a complete waste of time… and one that will manage to waste more than two days.
(Complaint on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.