Eugene Volokh's Blog, page 126

[Josh Blackman] Seventh Circuit Judicial Council Dismisses Misconduct Complaint Against Judge Vaden

[Oh, and by the way, the complainant is a prisoner who had a "role in firebombing and vandalizing Jewish houses of worship."]

In December, I wrote about a misconduct complaint filed against Judge Stephen Vaden of the Court of International Trade. The complaint charged that the Columbia boycott violated the code of judicial ethics.

Today, the Seventh Circuit Judicial Council dismissed that complaint. Here is the crux of the analysis concerning the boycott:

Except to the extent prohibited by these regulations and guidelines, judges have wide discretion to establish their own screening and selection criteria in appointing law clerks. This latitude permits judges to make distinctions among applicants based on their own determinations of the relevant criteria or qualifications, including where the applicants were educated. Some judges only hire graduates of certain law schools. Some tailor their preferences to the specific needs of their court or chambers—for example, by looking for candidates from law schools with excellent writing or trial advocacy programs or strong core curricula in relevant subject areas. Relatedly, some judges only consider candidates with a GPA in the top 10 or 20 percent of their law-school class (or some other academic cutoff). Some require membership in the law review or moot court team. Others prioritize candidates from law schools in their state or circuit.

In the same way, a judge may refuse to hire law clerks from a law school or university that has, in the judge's view, failed to foster important aspects of higher education like civility in discourse, respect for freedom of speech, and viewpoint nondiscrimination. Accordingly, the law-clerk hiring boycott is neither inconsistent with the integrity of the judicial office nor likely to diminish public confidence in the judiciary.

That should have been obvious from the outset.

At long last, this saga draws to a close. I am grateful to my friends at First Liberty, as well as Lisa Blatt and her colleagues at Williams & Connolly, for representing Judge Vaden.

Then again, it is wroth noting how the complaint was filed. The Seventh Circuit also includes this tidbit that has, until now, not been publicized:

The complainant is serving a sentence in a state prison after a jury found him guilty of arson, terrorism, and other crimes stemming from his role in firebombing and vandalizing Jewish houses of worship.

I remain troubled how the judicial ethics process can be weaponized. This case was another episode of lawfare against the judiciary.

The post Seventh Circuit Judicial Council Dismisses Misconduct Complaint Against Judge Vaden appeared first on Reason.com.

[Eugene Volokh] AP Gets Preliminary Injunction Reversing Exclusion from Oval Office Press Pool

I'm on the road and can't discuss this in detail, but I thought I'd pass along a few excerpts from today's decision by Judge Trevor McFadden (D.D.C.) in AP v. Budowich:

About two months ago, President Donald Trump renamed the Gulf of Mexico the Gulf of America. The Associated Press did not follow suit. For that editorial choice, the White House sharply curtailed the AP's access to coveted, tightly controlled media events with the President. The AP now sues the White House chief of staff, her communications deputy, and the press secretary (collectively, "the Government"), seeking a preliminary injunction enjoining the Government from excluding it because of its viewpoint.

Today, the Court grants that relief. But this injunction does not limit the various permissible reasons the Government may have for excluding journalists from limited-access events.

It does not mandate that all eligible journalists, or indeed any journalists at all, be given access to the President or nonpublic government spaces. It does not prohibit government officials from freely choosing which journalists to sit down with for interviews or which ones' questions they answer. And it certainly does not prevent senior officials from publicly expressing their own views.

No, the Court simply holds that under the First Amendment, if the Government opens its doors to some journalists—be it to the Oval Office, the East Room, or elsewhere—it cannot then shut those doors to other journalists because of their viewpoints. The Constitution requires no less….

To be sure, the Government seemingly views these Oval Office events as akin to dialogues, not observational newsgathering. And perhaps there is something to that comparison. After all, intimate events in places like the Oval Office might be framed as more closely resembling sit-down, one-on-one interviews—which are clearly "dialogue"—than broader press briefings. And the AP concedes that the Government may engage in viewpoint discrimination in selecting what reporters can interview senior officials. But the Government neither called witnesses nor presented any evidence to support this analogy.

The Court instead credits the AP's chief White House correspondent's testimony that there is a clear distinction between interviews and the press pool availabilities at issue…. Interviews usually involve a one-on-one or small-group conversation at the invitation of the President. They are "exclusive" and the press has more "control" over the process than it does over journalistic conditions in Oval Office press pool events. The news outlet works with the White House to decide the time and place of interviews. The interview would not happen but for the outlet's presence. Interviews also lack the "sense of competitive pressure that you get from a pool event."

In contrast, Oval Office press pool availabilities involve a gaggle of reporters, all vying for space and information. In "very many" of these "pool sprays," journalists are relegated to watching events unfold from 20–30 yards away and have no interaction with the President or other officials. The event would happen whether any particular outlet had a reporter there or not.

In these conditions, journalists "can't have … a substantive conversation" with officials like they can "in an interview." Instead, the reporters are "just there to witness what is said and what the reaction is, [and] what else is happening in the room." And though journalists in the Oval Office do engage in dialogue, that dialogue is directed to other members of the media and the public to whom they are transmitting news in real time—not to government officials. More, unlike in exclusive interviews, the Government is not dependent on private media organizations to convey its messages to the American people; the White House's media team is present to broadcast events and can do so whether or not other journalists do so….

Read the whole opinion for more.

The post AP Gets Preliminary Injunction Reversing Exclusion from Oval Office Press Pool appeared first on Reason.com.

[Josh Blackman] Standing in the Shadow Docket

[Should the Court not consider jurisdiction unless there is irreparable harm?]

Today the Supreme Court issued another order on the emergency docket. In , a federal district court ordered the reinstatement of 16,000 probationary employees. The district court found that the unions and other organizations had standing based on a "diversion of resources" theory of standing under Havens Realty. This theory, which survived Acheson, has been under seige for some time, and should be extirpated soon enough. The Solicitor General's application explains why that argument does not work:

In granting the preliminary injunction, the district court relied exclusively on the standing of organizational respondents whose members are end-users of government services. See App., infra, 39a, 47a. Significantly, in entering relief against two of the enjoined agencies, the court appeared to rely solely on the theory that the organizations themselves suffered an injury by having to "divert" organizational resources to "counteract[]" the effects of the agencies' actions. See App., infra, 20a (citation omitted); see id. at 20a-21a; see also D. Ct. Doc. 18-7, ¶ 11; D. Ct. Doc. 18-3, ¶ 6. That standing theory is squarely foreclosed by this Court's decision in Alliance for Hippocratic Medicine, which held that "divert[ing] [organizational] resources in response to a defendant's actions" is not an Article III injury-in-fact. 602 U.S. at 395.

The Court's per curiam order granted the application on the grounds that the organizational plaintiffs lack standing. But the Court's brief order does not cite AHM, but instead cites Clapper.

The District Court's injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case. But under established law, those allegations are presently insufficient to support the organizations' standing. See, e.g., Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013). This order does not address the claims of the other plaintiffs, which did not form the basis of the District Court's preliminary injunction.

The government's application does not even mention Clapper so it is unclear the exact grounds on which the Plaintiffs lacked standing. Where is the self-inflicted injury?

In theory at least, the other plaintiffs may be able to establish standing, but that matter will have to wait for another day. More likely than not, their cases are over. Here, the Court is sending yet another clear signal: challenges to the removal of federal employees should be brought through the usual channels at the MSPB and not through a nationwide injunction.

Justices Sotomayor and Jackson would have denied the application. I've seen this case reported as a 7-2 split but that is not quite right. On the shadow docket, just because a Justice does not note their dissent does not mean they agree with the majority. At a minimum, there were five votes. I think it safe to say that Justice Kagan did not join the Clapper analysis. Chief Justice Roberts and/or Justice Barrett joined the majority. My money is on Barrett. She is a standing stickler, so this would have been an easier case than some of the others. Roberts probably did as well. So the vote is most likely 6-3.

The most intriguing opinion is that of Justice Jackson. She says that the Court should not have even considered the jurisdictional argument because the government failed to show "irreparable harm."

Justice Jackson would have declined to reach the standing question in the context of an application for emergency relief where the issue is pending in the lower courts and the applicants have not demonstrated urgency in the form of interim irreparable harm. See Department of Education v. California, 604 U. S. ___, ___ (2025) (Jackson, J., dissenting) (slip op., at 1–2). Thus, she would have denied the application.

This statement is consistent with her opinion in Department of Education v. California. There, she referred to jurisdiction, venue, and sovereign immunity as "shiny" distractions. This is definitely a new argument: the Court should not even consider "standing" in the shadow docket. But that argument can't possibly be right. Jurisdiction is the basis of the judicial power. If a lower court issued an order in the absence of jurisdiction, the act was an usurpation of the judicial power. If ever there is a need for the Supreme Court to intervene, it is where the lower court lacked jurisdiction. I think it is telling that no one else joined Justice Jackson here.

Jurisdiction is not just some "shiny" object.

The post Standing in the Shadow Docket appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: April 8, 1952

4/8/1952: President Truman signs executive order 10340. The Supreme Court declared this executive order unconstitutional in Youngstown Sheet & Tube Co v. Sawyer (1952).

The post Today in Supreme Court History: April 8, 1952 appeared first on Reason.com.

[Ilya Somin] Rights and Wrongs of the Supreme Court's Ruling in the Alien Enemies Act Case

[The Supreme Court oveturns lower court decisions temporarily barring AEA deportations, but also emphasizes that detainees are entitled to due process, and that AEA deportations are subject to judicial review.]

The Supreme Court. (NA)

 

Tonight's Supreme Court ruling in Trump v. JGG is a mixed bag. On the one hand, it overturns lower court rulings temporarily barring deportations under the Alien Enemies Act. But it also makes clear that migrant detained for deportation under the AEA are entitled to due process, and that the president's invocation  of the Act is subject to judicial review. I go over the crucial issues at stake in the AEA litigation here, here, and here.

A closely divided 5-4 majority (with Justice Amy Coney Barrett joining the three liberal justices in dissent), ruled that the case should have been tried in Texas (where the detained Venezuelan migrants are now held), rather than in Washington DC, because habeas corpus cases must be heard at the location of detention.

I am not expert on these kinds of venue issues, and therefore cannot say much about them. But it does seem to me the majority got this wrong, for reasons outlined in Justice Sotomayor's dissent. See also this analysis by Lee Kovarsky, a leading academic expert on habeas.

In a detailed discussion of tonight's ruling, Prof. Steve Vladeck argues that limiting the detainees' options to habeas corpus challenges will make it much harder for them to litigate their cases, in part by preventing systematic remedies, as opposed to ones limited to individual habeas petitioners. Justice Sotomayor eloquently expresses similar concerns in her forceful dissent. They may be right. But much depends on whether AEA detainees can file habeas class actions. If the answer is yes, systematic remedies will be available, and individual migrants won't have to all litigate their cases separately. The ACLU and other public interest groups are likely to help the detainees file such a class action. Habeas class actions are permitted in at least some immigration contexts.  I lack the expertise to assess whether they can or will be used here. But I flag this issue as a crucial one to consider.

While the Trump Administration succeeded in getting the lower-court rulings vacated, it suffered a potentially important setback by virtue of the Court's ruling that migrants targeted for deportation under the AEA are entitled to due process:

"It is well established that the Fifth Amendment entitles aliens to due process of law" in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, the detainees are entitled to notice and opportunity to be heard "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

While I differ with much of what Josh Blackman says in his post about the case, he is right to describe this part of the ruling as "a very quiet defeat for the Trump Administration, which sought to spirit the aliens away without any hearing." How big a defeat it is may in part depend on exactly what qualifies as "a reasonable time" and "a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

The majority also holds that judicial review is available with respect to the applicability of the AEA, which only allows detention and deportation in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government":

Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to "'judicial
review'" as to "questions of interpretation and constitutionality" of the Act as well as whether he or she "is in fact an alien enemy fourteen years of age or older." Ludecke, 335 U. S., at 163−164, 172, n. 17.

It seems obvious that "questions of interpretation and constitutionality" include the issues of whether there is an "invasion" or "predatory incursion" going on, and whether the Tren de Aragua drug gang qualifies as a "foreign nation or government" (Trump's invocation of the AEA is limited to Venezuelans who are members of that organization). This undercuts the administration's claims that all these issues are "political questions not subject to judicial review. In earlier writings about these issues, I have emphasized that the meaning of "invasion" in the AEA tracks the meaning of the same term in the Constitution, which is limited to acts of war, not mere illegal migration or drug smuggling.

Steve Vladeck suggests that the transfer of the litigation to Texas will benefit the Trump Administration, because the federal judges in the Fifth Circuit are generally more conservative than elsewhere. He is likely right about that. But it's worth noting that the Fifth Circuit has twice ruled that illegal migration and drug smuggling do not qualify as "invasion" under the Constitution (see my discussion here and here), which suggests a similar interpretation applies to the use of invasion in the AEA (enacted just a few years later). One of these cases, was later overturned on other grounds by the en banc Fifth Circuit.

In that en banc case, prominent conservative  Fifth Circuit Judge James Ho wrote a badly flawed concurring opinion arguing that illegal migration does qualify as "invasion" (see my critique here). But, significantly, none of the other 17 Fifth Circuit judges joined him. That suggests the argument has little, if any, support from his colleagues.

In sum, tonight's Supreme Court ruling is very much a mixed bag. The legal battle over the Alien Enemies Act will continue.

The post Rights and Wrongs of the Supreme Court's Ruling in the Alien Enemies Act Case appeared first on Reason.com.

[Josh Blackman] What Exactly Did Justice Barrett Disagree With The Majority About In Trump v. JGG?

[Justice Barrett tells us to read the opinion, but there is nothing to read.]

The vote in Trump v. JGG was 5-4. Here, Chief Justice Roberts joined Justices Thomas, Alito, Gorsuch, and Kavanaugh. This case was largely a victory for President Trump, in that the case can be heard in the Fifth Circuit, rather than the D.C. Circuit. Still, the Court went beyond its ambit. The only requested relief was to vacate the lower court's ruling. But the Court held that the government must also afford the aliens a hearing before they can be removed. Here, there was a subtle merits ruling on the shadow docket.

Justice Sotomayor wrote a dissent which Justices Kagan and Jackson joined in full. Justice Barrett joined only Parts II and III-B. Last week I wrote that Justice Barrett's vote in the Department of Education case did not signal a sea change. I also wrote that Justices Sotomayor and Jackson were not looking to alienate Barrett by calling out any hypocrisy with the USAID case. JGG makes me more confident in my speculation.

In JGG, Justice Barrett did not write separately to explain which parts of the majority opinion she in fact disagreed with. As I'll explain, it isn't clear to me exactly what Justice Barrett thinks.

Part I-A of the dissent lays out the the history of the Alien Enemies Act. Parts I-B and I-C provide the facts and procedural posture of the case. Justice Barrett apparently does not agree with these parts of the dissent, though it is not clear why.

Part I-D charges that the government flouted Judge Boasberg's orders. I think it significant that Justice Barrett did not join this part. I doubt she agrees with the thrust of the ongoing contempt proceedings. And Part I-E repeats the refrain that the Supreme Court should let this issue "percolate" in the lower courts. Here, I think Justice Barrett agrees with the majority: further proceedings in a lower court that lacks jurisdiction would result in "wasteful delay."

Part II of the dissent, which Justice Barrett joins, is only two paragraphs long. This part agrees with the majority that the aliens are entitled to due process before removal. Again, all nine Justices agree on this basic point. It is true--federal judges in Texas and in the Fifth Circuit are bound by the Due Process Clause.

Then we get to Part III of the dissent. Justice Barrett only joins Part III-B. She does not join Part III-A and Part III-C.

Part III-A is only two paragraphs long. Here, Justice Sotomayor argues that the Court lacks jurisdiction to review the TRO. Barrett rejected this argument on Friday in Department of Education v. California. Chief Justice Roberts did not join the majority in the DOE case, but he agrees with this ruling in JGG. Thus, all six conservatives are on board with reviewing these sorts of TROs. I consider that matter settled. Lower courts, take note.

Part III-B is the only substantive portion of the dissent that Justice Barrett joins. It begins:

Also troubling is this Court's decision to vacate summarily the District Court's order on the novel ground that anindividual's challenge to his removal under the Alien Enemies Act "fall[s] within the 'core' of the writ of habeas corpus" and must therefore be filed where the plaintiffs are detained. . . . This conclusion is dubious.

Barrett is not even willing to say the majority is wrong here. She is only willing to go along with "troubling" and "dubious." I take it that Justice Barrett simply isn't sure here, and would not reach this holding at this point. But does Justice Barrett disagree about the venue issue? Does she think this case properly belongs in Texas? What would a process-formalist originalist do here? I can't tell you because Justice Barrett won't say. This dissents reminds me of the Trump immunity decision, where it was entirely unclear what parts of the majority that Justice Barrett would join. Early in Justice Barrett's career, she told us to "read the opinion." Yet she writes less than any member of the Court, and frequently leaves us guessing what she actually thinks. Academics have the luxury of not addressing all issues at once, and instead we can deliberately walk through complex matters on our own timelines. Supreme Court justices do not have that luxury in fast-moving litigation.

Part III-C finds that the government would not suffer enough harm to justify the Court's intervention now:

The Government may well prefer to defend against "300 or more individual habeas petitions" than face this class APA case in Washington, D. C. Ibid. That is especially so because the Government can transfer detainees to particular locations in an attempt to secure a more hospitable judicial forum. But such a preference for defending against one form of litigation over the other is far from the kind of concrete and irreparable harm that requires this Court to take the "'extraordinary'" step of intervening at this moment, while litigation in the lower courts remains ongoing.

A more "hospitable judicial forum"? Tell us what you really think about the Fifth Circuit! As it stands, the ACLU tried to bring suit in a hospitable forum, but made a legal error. So now the cases will be heard where the aliens are detained.

Part III-C also cites the Garcia case, in which the Government asserted that aliens in the El Salvador prison cannot be returned.

The Government's resistance to facilitating the return of individuals erroneously removed to CECOT only amplifies the specter that, even if this Courtsomeday declares the President's Proclamation unlawful, scores of individual lives may be irretrievably lost.

Finally, Justice Sotomayor writes that the Trump Administration's "noncompliance" gives it "unclean hands." As a result, equity cuts against the executive branch. Once again, I think it is telling the dissenters treat the United States like any other party in a court of chancery.

Far from acting "fairly" as to the controversy in DistrictCourt, the Government has largely ignored its obligations to the rule of law.

In any event, Justice Barrett does not join Part III-C.

As best as I can tell, Justice Barrett thinks the majority might have gotten the habeas issue wrong, but I am not certain if she agrees with the venue point otherwise.

Finally, Justice Barrett does not join the conclusion that comes after the three asterisks:

The Government's conduct in this litigation poses an extraordinary threat to the rule of law. That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this. I respectfully dissent.

Justice Jackson, for her part, compares the majority to Korematsu. Scratch that, she says the Korematsu Court behaved better because they left a record because it was decided on the merits docket.

I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner. See Department of Education v. California, 604 U. S. ___ , ___ (2025) (JACKSON, J., dissenting) (slip op., at 1–2). At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today's Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

Is Justice Jackson really praising the Korematsu Court for moving slowly and deciding the case deliberately on the merits docket? Wouldn't it have been better if the Court ruled on the exclusion issue years earlier--perhaps when Hirabayashi came to the Court?  Does Justice Jackson know the history of Korematsu? According to the best evidence, the Court deliberately held off on deciding the case until the executive branch had already rescinded the exclusion order. There was apparent collusion between the executive and judicial branches to justify the exclusion of U.S. citizens without any due process of law. Did anyone in the Jackson chamber even see this problem? I realize this sort of line has some rhetorical force, but Justice Jackson whiffs badly.

The post What Exactly Did Justice Barrett Disagree With The Majority About In Trump v. JGG? appeared first on Reason.com.

[Josh Blackman] Twice, SCOTUS Finds Coastal Courts Improperly Exercised Venue

[In two consecutive orders, the Court signals that progressive litigants forum shopped to the wrong courts.]

On March 30, I wrote a post titled "Coastal Judges Play Keep-Away From The Fifth Circuit." One week later, the Supreme Court has turned the tides.

Last Friday, in Department of Education v. California, the Court ruled that a federal court in Boston improperly exercised jurisdiction and venue. The challenge to the funding cut belonged in the Court of Federal Claims. And today, in Trump v. J.G.G., the Court ruled that a federal court in the District of Columbia improperly exercised jurisdiction and venue over an alien detained in Texas.

For "core habeas petitions," "jurisdiction lies in only one district: the district of confinement." Rumsfeld v. Padilla, 542 U. S. 426, 443 (2004). The detainees are confined in Texas, so venue is improper in the District of Columbia. As a result, the Government is likely to

I draw several conclusions from this ruling.

First, this was a case of clear forum shopping by the ACLU and other groups. The aliens were known to be detained in Texas. The obvious venue to file suit was in Texas. The ACLU determined (rationally) that the Fifth Circuit would not be a favorable forum. Therefore, they took a risk and sought emergency relief in the D.C. Circuit on a Saturday. Their decision backfired. Now, venue will lie in Texas. I think most criticisms about forum shopping expired on January 20, 2025.

Second, Judge Boasberg committed a clear legal error. The Supreme Court ruled that he exercised jurisdiction when he should not have. Is there any greater error than improperly exercising jurisdiction? As best as I can recall, the Court has never faulted Judges Reed O'Connor or Matthew Kacsmaryk⁩ with such an error. Chalk one up for Texas federal judges. Moreover, the gushing coverage of Judge Boasberg has been nauseating. I don't recall any District Court judge who has received more favorable press by the mainstream media in such a short period of time. Perhaps the most egregious such piece stressed how Judge Boasberg has friends in high places--namely, Justice Kavanaugh. As if a Supreme Court Justice will favorably review a decision from his friend? Well you know what? Justice Kavanaugh reversed his fellow "cubbie." The suggestion that there is some sort of club where elite judges rule for their buddies is beyond obnoxious, and demeaning to Justice Kavanaugh. Finally, it is not clear if the District Court has power to hold the executive branch in contempt where it lacks jurisdiction over the case.

Third, there are several other cases pending where aliens are detained in Louisiana, but coastal judges have asserted jurisdiction. I think this ruling should send a clear signal to federal courts in Boston and New Jersey: you do not have the power to supervise cases where the alien is detained on the Gulf of America.

Fourth, the aliens in Texas cannot be removed right away. They must be afforded a hearing before their removal:

More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

This is a very quiet defeat for the Trump Administration, which sought to spirit the aliens away without any hearing.

Fifth, I'm still not sure what JGG means for Chief Justice Roberts in the Garcia case. I think JGG is a fairly straightforward application of habeas and venue law. Rumsfeld v. Padilla has been on the books for two decades But the Garcia matter concerns the power of the judiciary. And John Roberts is still at heart a judicial supremacist. Perhaps in that case Justice Barrett swings the other way?

I will have more to say about this case, and Justice Barrett's dissent* in another post.

The post Twice, SCOTUS Finds Coastal Courts Improperly Exercised Venue appeared first on Reason.com.

[Ilya Somin] District Court and Fourth Circuit Order Trump Administration to Return Wrongfully Deported Immigrant

[Salvadoran immigrant Kilmar Abrego Garcia was illegally deported and incarcerated in a Salvadoran prison. The Trump administration admits the deportation was illegal, but claims they can't be required to retun him.]

Kilmar Abrego Garcia, led by guards through the Terrorism Confinement Center in Tecoluca, El Salvador. (NA)

 

Yesterday, a federal district court ordered the Trump Administration to secure the return of Kilmar Abrego Garcia, a Salvadoran immigrant the government admits was illegally deported to El Salvador and then incarcerated in the horrendous CECOT prison, as part of a deal under which the Salvadoran government imprisons migrants deported by the US in exchange for a payment.  Today, a unanimous  appellate panel of the Fourth Circuit  refused to stay the ruling. These decisions are obviously correct, and the Trump administration's argument to the contrary has extremely dangerous implications. It suggests that the government can deport and imprison anyone it wants - including US citizens - and then be immune from judicial review, so long as the incarceration is done by a foreign state, even one that is obviously doing it at the behest of the US government.

As the district court summarized its reasoning:

As Defendants acknowledge, they had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador —let alone deliver him into one of the most dangerous prisons in the Western Hemisphere. Having confessed grievous error, the Defendants now argue that this Court lacks the power to hear this case, and they lack the power to order Abrego Garcia's return…. For the following reasons, their jurisdictional arguments fail as a matter of law. Further, to avoid clear irreparable harm, and because equity and justice compels it, the Court grants the narrowest, daresay only, relief warranted: to order that Defendants return Abrego Garcia to the United States.

Judge Paula Xinis goes on to point out the obvious flaw in the administration's position that Abrego Garcia is outside the control of the US government:

The Defendants' redressability argument, simply put, is that their placement of Abrego
Garcia in an El Salvadoran prison deprives them of any power to return him. Thus, they say, even if Abrego Garcia succeeds on the merits, Defendants are powerless to get him back. The facts demonstrate otherwise….

First, Defendants can and do return wrongfully removed migrants as a matter of course….

Second, Defendants unilaterally placed hundreds of detainees behind the walls of CECOT without ceding control over the detainees' fates, as the detainees are in CECOT "pending the United States' decision on their long-term disposition…." Unlike Abrego Garcia, for whom no reason exists to detain him, Defendants transported many individuals who had been detained in the United States while awaiting immigration proceedings. Yet, despite Defendants' power to transfer those awaiting hearings to CECOT for a "good price," Defendants disclaim any ability to secure their return, including Abrego Garcia….

[T]he record reflects that Defendants have "outsource[d] part of the [United States'] prison system….."See also U.S. Dep't of Homeland Sec., How It's Going, DHS,
https://www.dhs.gov/medialibrary/asse... (last visited Apr. 4, 2025) (quoting Defendant Noem: "This facility is one of the tools in our toolkit that we will use")." Thus, just as in any other contract facility, Defendants can and do maintain the power to secure and transport their detainees, Abrego Garcia included.

In the end, Defendants' redressability argument rings hollow. As their counsel suggested at the hearing, this is not about Defendants' inability to return Abrego Garcia, but their lack of desire.

Ultimately, this is not a case of the Salvadoran government imprisoning Abrego Garcia for its own reasons, but of them doing so at the behest of the US. For that reason, there is no real doubt that the Trump administration could get Abrego Garcia back, if it wanted to. El Salvador has no reason to hold him, except to carry out its agreement with Trump and wi favor with him.

The Fourth Circuit's reasoning is similar. A concurring opinion by Judges Thacker and King notes that Salvador President Nayib Bukele admits that the US has "outsourced" its prison system to his regime. Similarly, Trump Homeland Security Secretary Kristi Noem says that "This facility [CECOT] is one of the tools in our toolkit that we will use" [emphasis added].

The federal government cannot be allowed to circumvent its legal obligations by "outsourcing" imprisonment to foreign governments. Otherwise, it could use this "tool in our toolkit" to imprison whoever it wants - including US citizens - without due process, and without any judicial review. Big-name conservative Fourth Circuit Judge J. Harvie Wilkinson highlights this danger in his concurring opinion:

The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.

Despite this threat, Judge Wilkinson would prefer that the courts merely order the administration to do what it can to "facilitate" Abrego Garcia's return, rather than order that the return actually be accomplished. To my mind, this distinction does not make any sense in a case where the foreign government in question is essentially a bought and paid for agent of the US. Outsourcing imprisonment cannot be get-out-of-jail-free card for the executive - or in this case, a put-in-jail-free card.

For these reasons, I am not impressed by co-blogger Josh Blackman's concerns that the courts are ordering the president to "negotiate with a foreign leader." When the president contracts with a foreign leader to imprison people at the behest of the United States, the US government retains full legal responsibility for that imprisonment. And if the imprisonment turns out to be illegal, it has a duty to put an end to it by, no less than if the person was incarcerated by the US directly. "Outsourcing" cannot be used to circumvent constitutional constraints on government power - especially not when liberty is so gravely threatened. Neither can it be used to circumvent legal restrictions on deportation - itself a severe constraint on liberty.

Sadly, this is not the only case where the Trump Administration has used imprisonment in El Salvador to try to circumvent the Constitution. It has done the same thing on a larger scale with its deportation of Venezuelans under the Alien Enemies Act. This action violates the Due Process Clause of the Fifth Amendment, and courts should order the government to reverse its illegal actions, and not accept the El Salvador ploy as an excuse.

The Trump administration has appealed Fourth Circuit ruling to the Supreme Court. Hopefully, the justices will affirm the lower courts, and reject the administration's attempt to set a dangerous precedent for shielding lawlessness with the help of compliant foreign states.

The post District Court and Fourth Circuit Order Trump Administration to Return Wrongfully Deported Immigrant appeared first on Reason.com.

[Josh Blackman] Can A Federal Court Issue Mandamus Against The President?

[Judge Rao: "It is extremely doubtful that mandamus could issue against the President."]

Today, the En Banc D.C. Circuit vacated the panel ruling finding that President Trump's removal of NLRB members was lawful. Judges Henderson, Katsas, Rao, and Walker dissented from the en banc order.

Judge Rao's dissent, which was joined by the three other dissenters, argues forcefully that the federal court's lack an equitable cause of action to order the reinstatement of the NLRB members. Judge Katsas made these points in his Bessent dissent.

Judge Rao further responds to Judge Millett's panel opinion, which argued that the court could grant a writ of mandamus against the President. Judge Rao concludes that mandamus wold not be proper against the President:

Judge Millett argued in dissent that mandamus could issue against the President because he "violated a non-discretionary statutory duty by firing Harris and Wilcox without relevant justification." See Harris, 2025 WL 980278, at *45 (Millett, J., dissenting). It is extremely doubtful that mandamus could issue against the President. While this court has at times claimed authority to issue writs of mandamus against the President, I am aware of no case in which we have taken this extraordinary step. To the contrary, we have repeatedly declined to issue the writ "in order to show the utmost respect to the office of the Presidency and to avoid … any clash between the judicial and executive branches of the Government." Nat'l Treasury Emps. Union v. Nixon, 492 F.2d 587, 616 (D.C. Cir. 1974); see also Nat'l Wildlife Fed'n v. United States, 626 F.2d 917, 928 (D.C. Cir. 1980) (declining to issue mandamus against the President). . . .

Furthermore, it is difficult to see how mandamus to reinstate officers removed by the President could ever be appropriate. "Although the remedy by mandamus is at law, its allowance is controlled by equitable principles, and it may be refused for reasons comparable to those" governing a court of equity. United States ex rel. Greathouse v. Dern, 289 U.S. 352, 359 (1933) (cleaned up). For this court to order the performance of executive acts vested exclusively in the President would "at best create[] an unseemly appearance of constitutional tension and at worst risk[] a violation of the constitutional separation of powers." Swan, 100 F.3d at 978; see also Johnson, 71 U.S. at 499 (rebuffing the idea of ordering the President to perform executive acts as "an absurd and excessive extravagance") (cleaned up). These constitutional concerns render mandamus—an extraordinary writ—wholly inappropriate in these removal cases.

If only William Marbury had asked the federal trial court in the District Court for mandamus against President Jefferson! I'm sure that would have gone over well.

Judge Rao has to be correct on this point. Moreover, under Mississippi v. Johnson, I don't think the Court could issue any type of injunction against the President concerning reinstatement. The D.C. Circuit seems to rely on the "fiction" that an injunction could run against other officers in the executive branch. But this fiction simply doesn't work.

I remain concerned that the Supreme Court will punt on the merits question and simply hold that the district court's remedy was improper. That would leave open the legal question about whether the removals were valid. That may seem like a way to duck the question, but it would create even more chaos down the road. Stop kicking the can down the road.

Judge Henderson's pithy dissent argues that the Supreme Court should decide this issue sooner rather than later:

We do the parties (especially a functioning executive branch) no favors by unnecessarily delaying Supreme Court review of this significant and surprisingly controversial aspect of Article II authority. Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.

I agree. The Court has a rendezvous with Humphrey.

The post Can A Federal Court Issue Mandamus Against The President? appeared first on Reason.com.

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.