A significant defeat for the Trump government in the federal court of appeal
The US presidency is not getting its own way - even with Republican-nominated appeals judges
Overnight the judgment for the federal court of appeal in the deportations case was handed down - and it was a 2-1 defeat for the Trump presidency.
*
The issue decided in this appeal was whether the “temporary restraining order” (TRO) - a form of interim injunction - should stay in place. This TRO, which was granted by the federal court in Washington D.C., prevents the federal government from removing alleged “enemy aliens” under the Trump proclamation of earlier this month.
In practical terms, of course, it is preventing the US government from placing currently detained Venezuelans - including those against whom there is no actual evidence - on planes to be sent to a El Salvador mega-prison under a commercial agreement between the US and El Salvador.
The TRO is not intended to be a permanent injunction - the key is the word “temporary” - but “to hold the ring” (as lawyers say) until there can be a proper hearing on the substantive case, after which it seems it can either be discharged or be converted into a firmer “preliminary” injunction.
*
The US government really do not like this TRO - for it is a powerful legal weapon and it applies across all the United States at the federal level. The government wants this TRO to be somehow vacated, so that they can go back to the business of mass deportations under the Trump proclamation.
But.
The US government failed to get the judge at first instance to vacate his own order - in a sterling (and highly readable) judgment, Chief Justice Boasberg rejected the US government’s application.
The US government appealed - and you can hear the audio of the appeal hearing here.
The appeal court comprised three judges - two of whom were nominated by Republican presidents (one by Bush the other by Trump) and one nominated by a Democrat president.
And in the appeal judgment now published, the TRO was upheld by a 2-1 majority, with only the Trump-nominated judge dissenting.
And even his dissent admits that the individuals can use habeas corpus to challenge removals, but they have to do it (if they can) in the state they are being detained, if they somehow get notice.
(This is, of course, on par with saying the detainees’ access to justice is via “the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard.'”)
That said, that is still a move from saying that the individuals can have no absolute access to justice at all, which was the US government’s initial view.
The majority also gave a wide-ranging ruling, going against the government on point after point, and not just going against the government on a technical narrow basis.
*
And so the TRO stands - for now.
The US government may now seek to appeal to the Supreme Court - where there is also a majority of Republican-nominated judges.
But if the US government cannot win over the more moderate Republican judge at the court of appeal, it is an open question whether they will win over Chief Justice Roberts and Justice Barrett who, although conservatives, are independently minded and less prone to slavishly follow a party line in such political cases than their conservative colleagues.
Had the court of appeal gone the other way, with a 1-2 majority against the TRO that may have indicated that the detainee plaintiffs would have a harder time at the Supreme Court.
*
So this is good news for liberals - for now.
There has been a win in another court skirmish.
But a win in a skirmish is not a win in a battle, and still less a win in a war.
The broader, longer battles - and the war itself - may still be lost.
The US government may eventually get its legal act together - rather than the amateur hour antics they have exhibited so far - and they have at least another four years to do so.
But.
If the tide was to turn, this appeal win also would be an early sign.
What the appeals win signifies beyond doubt is that the US government is not getting its own way - and that its improvised “shock and awe” “move fast and break things” tactics can become undone.
Even if the Supreme Court side with the dissenting judge here (and somehow also insist that detainees can challenge their removals via “the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'”) the losses so far for the government at first instance and on appeal on the TRO issue means they have not (and will not) have an easy legal time with other such measures.
The US government will not be happy today.
*
'This must be Thursday,' said Arthur to himself, sinking low. 'I never could get the hang of Thursdays.'
***
Just a reminder - posts like these take considerable time and resources to put together (reading any judgment properly is not a quick job), and I do not like imposing a paywall. So please do become a paying subscriber if you really want independently minded, original and specialist commentary like this on the unfolding law and policy events in the United States and elsewhere. Thank you.