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We started the Politics Bytes, in large part, because there is just too much worthy-of-attention political news to keep up with. We have the same basic problem with legal news. So, don't be too surprised if we end up doing a legal version of that feature once in a while. Not only are there a lot of salient legal rulings, but there is also the overall story of how the Department of Justice is continuing to break down amid the corruption and incompetence at the top.
Recently, there have been a LOT of court rulings on Donald Trump's immigration policies. Most of them have been bad for the administration, including increasing crackdowns on the DoJ's defiance of court orders, along with the complete erosion of any presumption of regularity. In other words, the courts don't trust this DoJ. This increases the hoops the DoJ must jump through to justify ICE activity.
Because of the volume this week, we'll have to do some quick hits:
Ain't No Sunshine: The first, and probably most significant, ruling comes out of California in a class action lawsuit challenging Trump's mandatory mass detention policy. As a refresher, CBP and ICE aren't supposed to round people up in the interior of the country and subject them to indefinite detention. Mandatory detention is reserved for those apprehended at the border, those who are "arriving" and seeking permission to enter the country. There are several reasons for this: (1) That's what the law says, (2) people have fewer constitutional rights before they've entered the country and (3) determining status is much simpler at the border. Even then, someone can apply for asylum and there are limits on the length of detention and other conditions of arrest. But Stephen Miller—er, Trump—decided that a noncitizen is considered as "arriving" no matter where they live or how long they've been in the country and can be subject to mandatory detention. As readers know, this has wreaked havoc across the country, as anyone who looks "foreign" has been swept up in ICE raids far from the border, resulting in violations of constitutional rights and other abuses. And by the way, being present in the country without authorization is not a crime, so there is generally no basis to arrest someone on those grounds.
A little more background: When the Supreme Court struck down a nationwide injunction last year barring this practice, all the people stuck in detention had to file individual habeas petitions, which is why the courts and administration lawyers are so overwhelmed and why one DOJ attorney begged to be held in contempt because "this job sucks" and she wanted some sleep.
An exception to the Court's ruling was a class action lawsuit. As we've written here before, those take much longer, which allows the mass detentions to continue and enables disasters like the Minnesota "surge." And even when a judge issues a ruling, it doesn't much matter if the Trump administration is just going to ignore it.
That is what happened here. Back in December, U.S. District Court Judge Sunshine Sykes from the Central District of California issued a final judgment in a class action finding DHS's interpretation of immigration statutes unlawful and requiring immigration judges to order bond hearings for members of the class already detained—i.e., any noncitizen without a criminal record in indefinite detention. But that order was ignored, mass arrests continued and hundreds of habeas petitions were filed, clogging the courts and overwhelming government lawyers and everyone else. Now, Judge Sykes has issued a rather more pointed ruling, which completely threw out the decision from the Board of Immigration Appeals that had sanctioned the mass detentions in the first place. An instructive quote: "Respondents have far crossed the boundaries of constitutional conduct. Somehow, even after the judicial declaration of law that the DHS was misguided in its act of legal interpretation that nullified portions of a congressionally enacted statute, Respondents still insist they can continue their campaign of illegal action. The shameless submission that is Respondents' Opposition deliberately seeks to erode any semblance of separation of powers. Respondents can only do so in a world where the Constitution does not exist."
The upshot is that mass detentions under this policy are illegal and those in detention must be given an opportunity to be released without further delay.
Contemptible: Federal judges are fed up. They are now documenting all the court orders that DHS/DoJ are violating and they are starting to bring the hammer down. Just last week, two attorneys were held in contempt, for violating court orders, one in Minnesota and one in New Jersey. In New Jersey, the DoJ attorney made a rare admission that the administration has defied more than 50 court orders just in the Garden State alone.
And then, last night, U.S. District Judge Zahid Quraishi ruled that if his orders are not followed, he will haul DHS officials into his courtroom to testify under oath: "The Government's continued actions after being called to task can now only be deemed intentional. The undersigned will not stand idly by and allow this intentional misconduct to go on. It ends today."
Over in Massachusetts, U.S. District Judge Brian Murphy held that noncitizens cannot be deported to third countries without due process. DHS enacted a policy allowing the deportation of immigrants to countries where they've never lived, have no ties and where they may be subject to abuse without any kind of hearing. Judge Murphy struck that down but gave the administration 15 days to appeal, which they have already indicated they will do (along with insulting the judge, of course).
Breaking the Law. Breaking the Law: And finally, a whistleblower has come forward claiming that ICE recruits are being told they can violate the Constitution by entering homes without warrants and using force unnecessarily. Former ICE lawyer Ryan Schwank testified that the training program has been dismantled and that cadets are graduating who are unqualified and lack a basic understanding of laws that govern their work. "ICE is teaching cadets to violate the Constitution," he said on Monday at the event with congressional Democrats.
It remains to be seen if any of these actions will have any effect on ICE operations or on compliance with court orders. If Trump and his underlings are smart, they will take the hint and dramatically scale back the arrests, stop mandatory detentions, hold bond hearings and release detainees and reconstitute the training program. If ICE fades from view over the next few months, the government overreach would be a less salient issue in the midterms. So, while they complain and insult the judges issuing these rulings, the courts are throwing Trump a bone here if he is savvy enough to recognize it. (L)