What does “the law” require, though? A number of these judges are liberals who adhere to the notion that the law can be found in “emanations from penumbras” of the constitutional text. But I saw little effort to look at the “emanations from penumbras” of the INA, which is a decidedly pro-deportation document.
And some of the actions have been simply lawless. For example, after the Supreme Court ruled that Judge Boasberg lacked jurisdiction in the deportation flights case, the proper course would have been to dismiss. Instead, he initiated contempt proceedings based on failure to follow an order that was void ab initio, citing case law that applies to private litigants but makes no sense in a case where a district court exceeds its jurisdiction to compel a co-equal branch of government to act. Sanity prevailed and the DC Circuit administratively stayed those contempt proceedings. Judge Howell, in one of the law firm EO cases, asserted that firms had a first amendment right to pursue “progressive employment policies”—even though the first amendment obviously doesn’t apply to race-conscious employment policies. Other courts are insisting that Trump can’t revoke temporary authorizations by executive fiat that Biden granted by executive fiat.
More generally, courts are abusing their injunction powers. Read Marbury v. Madison again. The court goes out of its way to avoid enjoining the secretary of state even to perform the “ministerial” task of delivering a letter the president had already signed. Marbury makes clear that, while courts have the power to declare the law, and overturn Congress’s laws, its power to compel the executive branch to act is extremely limited.
The Supreme Court correctly ruled in the deportation flights case that the administration must allow detainees to file habeas petitions in the districts where they’re detained. That’s a proper exercise of district courts’ jurisdiction to adjudicate alleged deprivations of individual rights. It’s not proper for the courts to try and use that authority to enjoin entire executive policies that offend a judge’s sensibilities.
And some of the actions have been simply lawless. For example, after the Supreme Court ruled that Judge Boasberg lacked jurisdiction in the deportation flights case, the proper course would have been to dismiss. Instead, he initiated contempt proceedings based on failure to follow an order that was void ab initio, citing case law that applies to private litigants but makes no sense in a case where a district court exceeds its jurisdiction to compel a co-equal branch of government to act. Sanity prevailed and the DC Circuit administratively stayed those contempt proceedings. Judge Howell, in one of the law firm EO cases, asserted that firms had a first amendment right to pursue “progressive employment policies”—even though the first amendment obviously doesn’t apply to race-conscious employment policies. Other courts are insisting that Trump can’t revoke temporary authorizations by executive fiat that Biden granted by executive fiat.
More generally, courts are abusing their injunction powers. Read Marbury v. Madison again. The court goes out of its way to avoid enjoining the secretary of state even to perform the “ministerial” task of delivering a letter the president had already signed. Marbury makes clear that, while courts have the power to declare the law, and overturn Congress’s laws, its power to compel the executive branch to act is extremely limited.
The Supreme Court correctly ruled in the deportation flights case that the administration must allow detainees to file habeas petitions in the districts where they’re detained. That’s a proper exercise of district courts’ jurisdiction to adjudicate alleged deprivations of individual rights. It’s not proper for the courts to try and use that authority to enjoin entire executive policies that offend a judge’s sensibilities.