Dem
53
Ties
2
GOP
45
We once again have a large backlog of legal developments to catch up on:
Pool Position: David Hearn, who was indicted for allegedly damaging the liner of the reflecting pool, won a motion to have his case dismissed with prejudice. Readers may recall that D.C. U.S. Attorney Jeanine Pirro's case against Hearn fell apart when the company hired to install the liner admitted that the damage was caused by a botched and rushed installation.
Our Take: We already mentioned this outcome briefly, but it's worth noting that Pirro agreed to dismiss the case, but wanted to do so without prejudice in case they decided to further harass Hearn and use him as red meat for the base. The D.C. Superior Court judge was not buying it and held that the "political pressure brought by the President of the United States upon his subordinate officers" means that despite the lack of evidence, prosecutors are likely to cave to the pressure and prosecute him again. The embarrassing defeats just keep piling up for this DoJ. Once the midterms are over, look for even more resignations from this beleaguered institution.
You're Un-Fired!: Speaking of fighting back, Roger Rogoff has been reinstated as the U.S. Attorney for the Western District of Washington after a judge ruled that his firing was illegal. The judges of the Western District appointed Rogoff to the post after the Trump administration failed to install a Senate-confirmed nominee. Under the law, the vacancy is to be filled by the judges in that district until a nominee is confirmed by the Senate. After Rogoff was appointed, he was promptly fired. Rogoff sued to get his job back.
Our Take: Trump appealed the decision to the Ninth Circuit, which granted his request for a stay of the ruling while the appeal is pending. So, Rogoff is not currently serving in the position. But other ousted U.S. Attorneys could decide to follow suit if he prevails. As we've learned, the only way to stem the tide of illegal conduct is to fight back.
SCOTUS Is a Bunch of Tossers: A violation of immigration law is a civil violation, not a crime. And yet, the Trump administration is indiscriminately snatching people off the street to detain them indefinitely while it determines if they can be deported. Some of those people are being flown to countries they have never set foot in, and where they are likely to be tortured. They are given no opportunity to challenge either their detention or whatever destination Generalissimo Stephen Miller sees fit to send them.
So far, DHS has sent more than 25,000 noncitizens to third countries (nations that are neither the U.S. nor the person's nation of origin) since Donald Trump took office for his second term. On September 18, a 3-judge panel of the U.S. Court of Appeals for the 1st Circuit unanimously agreed that this practice violates due process by failing to give deportees a chance to challenge being dumped in a third country. The ruling upholds a lower court decision from February granting summary judgment in plaintiffs' favor. DHS immediately applied to the Supreme Court for an "emergency" stay of the decision while it appealed. Without a word of explanation, the right-wing majority once again blessed a blatantly illegal and inhumane practice. It agreed to take up the merits of the case, with oral arguments scheduled in December, but in the meantime, the government can choose a country to summarily toss people in—South Sudan, Eswatini, Rwanda, Uganda, etc.
Our Take: In his recent, self-serving book, Samuel Alito complained about Trump's increasing use of the shadow docket and whined that there was nothing the Court could do about it. Actually, if the Court would stop being a rubber stamp for the Trump administration and start applying the same criteria it uses for every other party's stay application, they would see far less of this. A stay is only supposed to be granted under extraordinary circumstances and where the party applying for the stay is not only likely to prevail in their appeal but will also suffer irreparable and extraordinary harm in the interim, in a way that outweighs the inevitable harm to the other side. Here, the government's only articulable "harm" is that they can't implement this policy as quickly as they want. Contrast that with the documented torture and other atrocities suffered by those already dumped in third countries without notice or opportunity to contest the decision. And that raises another important point: The ruling does not say the administration cannot do this; it only requires some due process. But SCOTUS once again ignores the lengthy decisions of the district court and court of appeal and its own criteria for these types of applications and gives the green light to the cruel treatment of humans, many of whom have lived, worked and contributed to their communities in the U.S. for decades. When people look back at this era in Supreme Court history, they will be shocked by the Court's treatment of immigrants, both citizens and non-citizens.
Do It for Team GOP, John Roberts: The Supremes also agreed to hear a case testing the Trump administration's expansion of the indefinite detention of those suspected of being undocumented immigrants no matter where they are in the U.S.
As we've written before, ICE now claims they can arrest anyone they suspect of being in the country unlawfully and hold them without affording them a bond hearing. In truth, the law allows those "seeking admission" at the border to be detained pending a removal hearing, while anyone already in the country can't be rounded up and detained indefinitely without bond. Lower courts and nine of the federal appeals courts have held that Trump's novel interpretation is unlawful. The Justices granted cert in a case from the Second Circuit, which ruled against the Trump administration.
Our Take: The policy of mandatory detention of noncitizens anywhere in the country has not only led directly to ICE abuses and violations of civil rights but has also needlessly disrupted communities, torn families apart and led to employee shortages nationwide. Conditions in immigration detention facilities are widely known to be filthy and barbaric. Politically, these aggressive roundups, which often sweep U.S. citizens in the dragnet, are extremely unpopular and are driving down Republican poll numbers. If the Court wants to help the Republican Party, as it so often does, it will uphold the Second Circuit and put an end to this practice.
Truth and Consequences: Donald Trump has been testing court orders and the limits of courts' enforcement abilities by pushing the boundaries of judicial rulings if not outright defying them. In many cases, compliance comes only after the administration has been hauled back into court. Judges are typically reluctant to hold the government in contempt, but more and more are no longer giving administration lawyers the benefit of the doubt and are now demanding they jump through all the hoops that any ordinary litigant has to.
For example, U.S. District Judge James Boasberg has been holding contempt proceedings to find out who disobeyed his order to turn the planes around that were bound for CECOT in El Salvador. The Trump administration appealed and claims that Boasberg has no authority to conduct an investigation into who violated his order. Instead, they claim that only the DoJ has that authority. In April a divided 3-judge panel on the D.C. Circuit Court of Appeals agreed with the government, but in June the entire appellate court agreed to hear the case. At oral argument last week, most of the judges appeared likely to allow the contempt proceedings to continue.
Our Take: If the appeals court gives Boasberg the green light, and assuming the Supreme Court doesn't grant another "emergency" stay to let Trump officials off the hook, many DHS and DoJ officials could be implicated here. Famously, one prosecutor claimed that Emil Bove, now an appellate court judge, told government lawyers they could say "fu** you" to any judge who tried to stop deportations. Until there are real consequences to violating court orders, the administration will continue to violate them.
Cox Blocked: A 1996 federal law prohibits noncitizens from voting in federal elections. Prosecutors indicted a Jamaican woman, Chelsea Cox, for allegedly voting in the 2020 federal election in Broward County, Florida. But U.S. District Judge for the Southern District of Florida David Liebowitz just ruled that the law is unconstitutional because only the states can determine who is eligible to vote in federal elections.
Our Take: Republican pundits have gotten very excited because they think they've found an opening to claim that Democrats want noncitizens to vote. But Liebowitz, a Biden appointee, based his decision in part on an amicus brief that he solicited from Paul Clement, one of the most conservative lawyers in the country and the former solicitor general under George W. Bush. As to whether Congress had the power to enact the law, Clement concluded that, "with respect to noncitizens in the States, the best answer given a fair reading of [it] as a whole appears to be no." Moreover, assuming Cox actually cast a ballot, there is no indication who she voted for. But given that Broward County is not far from Palm Beach, it's very possible she registered to vote in order to pull the lever for Trump.
And with that, court is adjourned. (L)