DOJ suit against Maryland judges could open floodgates for targeting higher courts

BALTIMORE (CN) — The Justice Department’s effort to overturn a local District of Maryland rule temporarily freezing immigration cases to allow for judicial review drew strict scrutiny from a federal judge on Wednesday.

U.S. District Judge Thomas Cullen, a Donald Trump appointee from the Western District of Virginia who was assigned to the case by the Fourth Circuit, took the bench at Baltimore federal court amid an unprecedented suit against his colleagues.

The Justice Department filed the suit on June 24, naming all 15 federal judges on the U.S. District Court for the District of Maryland as defendants, to challenge Chief U.S. District Judge George Russell III’s block on any active removal efforts tied to a habeas petition for 48 business hours.

Paul Clement, of Clement Murphy and representing the judges, maintained that the injunctions provide a chance for judges to consider the petition before an immigrant is removed — as was the case for Kilmar Abrego Garcia — but the Justice Department argued the so-called “automatic injunctions” are an unlawful overreach of judicial authority.

Clement argued if Cullen adopted the Justice Department’s positions, it could open the door for similar suits against circuit courts, like the Fourth Circuit, further upending the “judicial order.”

Cullen pushed the theory even further, saying the executive branch could even sue the Supreme Court.

Justice Department attorney Elizabeth Hedges defended the decision to bring the suit in Maryland, describing Russell’s order as the unprecedented action rather than its suit, and denounced concerns that any “floodgates” would open for suits against circuit courts and the Supreme Court.

In its briefs, the Justice Department cited two cases — Stern v. U.S. District Court for the District of Massachusetts and*Whitehouse v. U.S. District Court for the District of Rhode Island* — as examples providing a roadmap for the administration’s challenge against the Maryland bench and Russell’s standing order.

Cullen acknowledged that the suits were able to avoid judicial immunity, but added that the case’s titles were “considerably more modest” when compared to this case, titled United States of America v. Russell. 

“This is taking it up about six notches,” Cullen said.

Cullen pressed Hedges why the administration does not bring an interlocutory appeal challenging the application of a standing order in an individual immigration case to the Fourth Circuit, as per the usual procedure.

Hedges argued that the administration would face certain challenges bringing such appeals, and the time spent litigating each individual case in court was an undue burden on the government.

Cullen replied that the administration has been able to seek swift relief from appellate courts and the Supreme Court by bringing previously rare appeals for temporary restraining orders, like in J.G.G v. Trump. 

On the merits, Hedges slammed the standing order as clearly violating the clear requirements needed for granting preliminary relief, particularly an assessment of any irreparable harm that would otherwise occur without relief.

Clement rejected that assertion, arguing that the standing order maintained the status quo and effectively provided an administrative stay. In practice, a temporary pause “doesn’t make a material difference,” as judges can still deny a habeas petition upon taking up the case.

The judges have maintained that the suit should be dismissed as Trump has failed to show why sovereign immunity or judicial immunity should not apply in the case.

In a Monday filing, the judges slammed the lawsuit as “not just novel, but deeply flawed,” noting that if the administration could clear the immunity hurdle, it would still fail on the merits.

“Every court has the inherent authority to issue administrative orders to ensure that it can do its job,” the judges wrote. “The exercise of that inherent authority here — a modest, two-business-day hold to allow the court to open a case and assess its jurisdiction — is eminently reasonable, entirely lawful, and far less of an imposition on the executive than comparable appellate-court stays.”

The suit has raised separation-of-power concerns among court observers amid the administration’s campaign to seemingly punish federal judges it views as obstructing its far-right agenda, in particular its mass deportation efforts. One of the named defendants, U.S. District Judge Paula Xinis, presided over Abrego Garcia’s case and has drawn particular ire from the administration.

Last month, the Justice Department filed a misconduct complaint against Chief U.S. District Judge James Boasberg in Washington after he expressed concern that the Trump administration would not comply with court orders at a closed-door session of the Judicial Conference in March.

Cullen indicated he would issue a ruling before Labor Day on Sept. 1.

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