Judge hears arguments in Trump case against MD judges

Listen to this article

A federal judge said Wednesday that he expects to rule by Labor Day on the Trump administration’s unprecedented lawsuit against Maryland’s federal bench.

The administration argued at a hearing Wednesday that a standing order issued in May by Maryland U.S. District Court Chief Judge George Russell III is equivalent to a temporary restraining order or injunction that causes “irreparable harm” to President Donald Trump’s ability to carry out mass deportations.

Russell’s standing order prevents deportations for about two business days after immigrants in Maryland file petitions for habeas corpus. The order was intended to preserve due process, and was seen by many as a response to the government’s handling of the case of Kilmar Abrego Garcia, who was mistakenly deported to a notorious Salvadoran prison without due process.

Lawyers representing the Maryland U.S. District Court characterized the order as a “modest” administrative action to preserve the court’s jurisdiction.

The two sides met for a hearing Wednesday in Baltimore to debate the government’s motion for a preliminary injunction and the judges’ motion to dismiss the case.

Roanoke-based U.S. District Judge Thomas Cullen, of the Western District of Virginia, was assigned to preside over the case because Maryland’s 15 federal judges are named as defendants and could not hear it. Cullen, a Trump appointee, said he hoped to rule on the motions by Labor Day, which falls on Sept. 1.

Before Department of Justice lawyer Elizabeth Hedges spoke, Cullen acknowledged that he was “skeptical” of the executive branch’s arguments, and that he doesn’t “have a very good poker face.”

Every time the standing order pauses a deportation, Hedges said, “our sovereign interest in enforcing duly-enacted immigration law is inhibited.”

The rule has been invoked in about a dozen cases, according to court records; the government has eventually been able to proceed with deportations in most of them.

Hedges argued that the order should be subject to the same four-factor test as preliminary injunctions or to the standard rulemaking process with notice and comment periods.

“The injunction enjoins the entire government automatically,” she said. “It’s not a modest injunction.”

Paul Clement, a prominent establishment Republican lawyer who served as solicitor general in the George W. Bush administration, argued that Russell’s order was similar to standing orders pausing removals in federal appellate courts.

“If you look at how this is applied in practice, it really hasn’t imposed much of an injury at all,” Clement said. “(It’s) hard to see where the government’s irreparable injury is in those cases.”

He said that suing the judges, the chief clerk and the court itself was not the proper mechanism to challenge the order, in part because the judges are immune from such lawsuits over their official acts. Instead, he said the government should have appealed it as applied in an individual case, or gone to the Fourth Circuit Judicial Council.

He said that in either case, the question of the standing order’s legality likely would have been determined by now.

Hedges said the government hadn’t foreclosed the possibility of appealing the standing order as applied in an individual case.

Furthermore, Clement said the government’s argument that the standing order wasn’t a normal judicial act that would be immune from suit. He said such an act is exactly the type of issue for the Judicial Council, which disciplines judges and sets policy across the circuit.

“They sort of plead themselves right out of court,” he said.