It’s not every day that a federal judge threatens to hold the US government in contempt. But yesterday it happened three times.
“The Court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt—again and again and again—to force the United States government to comply with court orders,” wrote Chief Judge Patrick Schiltz of the District of Minnesota, adding ominously that “This Court will continue to do whatever is required to protect the rule of law, including, if necessary, moving to the use of criminal contempt.”
The proximate cause of this chaos is an ICE memo issued in July which wrenched a clause out of 8 U.S.C. § 1225(b) to justify mandatory detention of virtually every immigrant without permanent legal residence. In reality, the statute deals with asylum seekers at the border, who can be detained for up to nine days pending a credible fear hearing. But DHS is using it to justify arresting people who were paroled into the country years, or even decades, ago and interning them indefinitely.
Outside the Fifth Circuit, judges have uniformly rejected this contrived interpretation. But ICE continues to snatch up longterm residents and intern them, provoking an avalanche of habeas cases which have to be dealt with immediately. This is stretching US Attorney’s Offices past the breaking point, and they were already short-staffed because working for Pam Bondi sucks. To make matters worse, ICE keeps doing horrible shit when judges inevitably grant the habeas petitions. There’s a reason grants now include instructions to release the petitioner in his home town, with all his belongings (particularly his winter coat and ID), and with no additional restrictions on his liberty (like an ankle monitor). And on top of this, ICE routinely disregards court orders entirely.
A month ago, Judge Schiltz published a list of 96 orders violated in his district in January alone. Apparently this offended the US Attorney for Minnesota, Daniel Rosen, who took issue with Judge Schiltz’s math and wrote to him, saying “your order was far beyond the pale of accuracy for an order that would be wielded so publicly and so sharply. The lawyers in my civil division didn’t deserve it.”
This was a bold move just days after a JAG lawyer seconded to Rosen’s office as a special assistant US Attorney got held in contempt for blowing off an entire habeas case and failing to even enter an appearance.
“The judges of this District have been extraordinarily patient with the government attorneys, recognizing that they have been put in an impossible position by Rosen and his superiors in the Department of Justice,” Judge Schiltz fumed. “What those attorneys ‘didn’t deserve’ was the Administration sending 3000 ICE agents to Minnesota to detain people without making any provision for handling the hundreds of lawsuits that were sure to follow.”
Then he attached another list of 113 more violations this month. And he’s not the only one preparing to make it very unpleasant for supervising lawyers when ICE flips judges the bird.
Judge Jeffrey Bryan, also in Minnesota, ordered Rosen and David Fuller, chief of the Civil Division in Minnesota, to show up for a contempt hearing on Tuesday along with someone from ICE “who had notice of the Court’s previous Orders in each of the above-captioned cases concerning return of property and documentation of that fact, and was (or were) directly or indirectly responsible for Petitioners’ custody, transportation, and release.” They can explain under oath why 28 habeas petitioners haven’t gotten their “personal belongings such as cash, cellphones, jewelry, driver’s licenses, work permits, passports, clothing, and other identification and immigration documents” returned.
And in New Jersey, things aren’t going much better. After granting the habeas petition of a Salvadoran woman who’d been paroled into the country in 2016 and then picked up last month, Judge Zahid Quraishi called the government’s continued reliance on its crackpot interpretation of § 1225(b) “manifest recklessness.”
“The undersigned will not stand idly by and allow this intentional misconduct to go on. It ends today,” he warned. “The U.S. Attorney’s Office and the Department of Homeland Security are cautioned that further arrests and detentions under § 1225(b) that come before the undersigned will likely trigger the issuance of an Order to Show Cause and the scheduling of an in-person hearing requiring individuals with personal knowledge from the Office and the Department to testify under oath as to the specific facts and legal positions associated with the detention at issue.”
Clearly things are coming to a head between the judiciary and the Trump administration. Either DOJ is going to get control over its client, or US Attorneys are going to have to start coming to court with a toothbrush. That will hardly make it easier for DOJ to recruit prosecutors. But at least Kristi Noem will get to preside over a national network of concentration camps.
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
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