Feds contest Maryland judges’ immunity in immigration case

(CN) — The Justice Department argued in a court filing Monday that all 15 federal judges in the District of Maryland cannot claim immunity to dismiss an unprecedented lawsuit against an entire judicial bench.

Both parties are set to convene in a Baltimore federal court on Aug. 13, where U.S. District Judge Thomas Cullen from the Western District of Virginia, a Donald Trump appointee assigned to the case by the Fourth Circuit, will consider the Justice Department’s preliminary injunction motion.

The government sued on June 24, challenging Chief District Judge George Russell III’s amended standing order — a set of rules each judge sets for their courtrooms and chief judges for their districts — temporarily freezing any active removal efforts tied to a habeas corpus petition. The feds argue the so-called “automatic injunctions” are an unlawful overreach of judicial authority.

The injunctions are placed in each case for two business days to allow a federal judge to be assigned and have a chance to consider the petition before the immigrant can be removed, as was the case for immigrants like Kilmar Abrego Garcia, who was deported under the Alien Enemies Act.

U.S. District Judge Paula Xinis, the judge presiding over Abrego Garcia’s case in Maryland, is one of the named defendants in the suit.

In a July 21 opposition brief, the judges argued the lawsuit violates the separation of powers — comparing it to a suit between the Executive and Legislative branches — and the long-standing immunity doctrine meant to generally shield government officials and bodies from constant litigation for their official conduct.

“Sovereign immunity bars this suit as to the district court itself, and judicial immunity bars it as to the judges and clerk in their official capacities,” the judges wrote, adding that the government initially failed to identify any statutory reason to waive such immunity.

In its brief, the Justice Department draws on the 1984 Supreme Court case Pulliam v. Allen, in which the justices ruled 5-4 that judges cannot be insulated from civil injunctions.

While the judges assert that Pulliam should be read to apply only to suits against state-level judges, the government maintains that there is no judicial precedent that judicial immunity should bar challenges seeking to invalidate a local rule or standing order.

“Unlike issuing rulings particular cases, promulgating standing orders and local rules that violate procedural and substantive requirements is not a ‘function’ traditionally protected by judicial immunity,” the Justice Department wrote. “Thus, courts have often ruled on challenges to local rules without nary a peep about immunity.”

The feds further decry the judges’ position that the standing order was necessary to address the surge in immigration cases caused by Trump’s sweeping deportation agenda.

“American history has seen more sweeping executive actions and more pronounced surges in litigation, but none of those developments justified an impulse to automate emergency injunctive relief,” the Justice Department wrote. “Indeed, if any district court in the nation has ever adopted a standing order approximating those at issue here, defendants are silent about it.”

According to the feds, courts faced a similar surge in “fast-paced, high-stakes emergency litigation” at the beginning of the Covid-19 pandemic, but injunctions were not automatically issued to every plaintiff in such cases.

In their brief, the judges slammed the unprecedented lawsuit as “fundamentally incompatible with the separation of powers” and warned it had caused significant disruption throughout the judicial district.

“If allowed to proceed, the tensions between the branches produced by such a suit would only escalate, with executive depositions of judicial officers (and vice-versa) and cross-examinations exploring judicial motivations and executive necessities in open court,” the judges argue. “And if this suit succeeds, it will not be the last — and the next suit could name the Fourth Circuit and cause greater disruption still. But this suit is unprecedented for good reason: It is neither justiciable nor meritorious.”

Legal experts have expressed concern that the Justice Department’s suit is part of a wider effort to retaliate against the federal judiciary for slamming the brakes on the Trump administration’s mass deportation effort, which has repeatedly flouted the law, immigration procedures and court orders.

Last Monday, the Justice Department filed a misconduct complaint against Chief U.S. District Judge James Boasberg in Washington, who ordered the return of over 200 Venezuelan immigrants summarily deported to the infamous CECOT mega prison in El Salvador.

The Trump administration has repeatedly argued in court that the immigrants it has sought to quickly remove from the country were dangerous criminals — as in the case of Abrego Garcia — who should not receive due process.

“Lastly but critically, the ongoing harms caused by the orders outweigh any alleged harms to defendants from granting the government’s requested relief,” the Justice Department wrote. “Even after this lawsuit commenced and the government moved for injunctive relief, defendants continued to endure the Amended Standing Order in new cases. Those actions add to the government’s and public’s ongoing harms.”

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