If left standing, a ruling from judges appointed by President Donald Trump would let his administration “escape scrutiny and accountability for a transparently deliberate attempt to evade judicial review of its unconstitutional actions and then ignore a judicial order.”
That’s what lawyers from the American Civil Liberties Union told Washington’s federal appeals court, while urging the court’s full slate of judges to rehear a case decided last month by a three-judge panel. That divided panel ruling, with two Trump appointees in the majority and a Biden appointee dissenting, granted the government’s extraordinary request to terminate contempt proceedings stemming from last year’s deportation flights to El Salvador.
According to D.C. Circuit Judge Neomi Rao’s majority opinion, it wasn’t Trump officials who might be faulted for possibly ignoring U.S. District Judge James Boasberg’s orders in their quest to hurry migrants to El Salvador under the president’s legally dubious invocation of the 18th-century Alien Enemies Act. Rather, per Rao and fellow Trump appointee Justin Walker, it was Boasberg’s attempt to understand what happened that risks upending the constitutional order.
Rao’s ruling bemoaned the “widening gyre” of the Obama-appointed Boasberg’s “inquest,” as she put it, calling his fact-finding effort “a clear abuse of discretion.” She said the administration already cooperated enough with the judge by naming now-former Homeland Security Secretary Kristi Noem as the official responsible for the transfer of migrants to the notorious Salvadoran prison known as CECOT.
“The panel’s ruling undermining the district court’s authority to enforce its orders will have implications well beyond this case, as the Executive Branch has continued to violate court orders,” ACLU lawyers wrote in their rehearing petition.
“Judges around the country have followed Chief Judge Boasberg’s courageous lead and refused to allow the Executive Branch to thumb its nose at the Judiciary,” they added, citing several examples of such order violations.
The lawyers said the panel’s ruling “sends a dangerous message that the Executive Branch can escape judicial orders by asserting ‘spurious, post hoc rationalizations [that] manufacture ambiguity where there is none’ and ‘vaguely sketched,’ ‘illusory’ separation of powers concerns.”
The case could be headed to the Supreme Court either way, but the next step will be learning how dangerous of a message Washington’s federal appeals court thinks the panel ruling sends, and what the court will do about it if a majority of its judges are likewise alarmed.
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