Can the feds sue judges? Fourth Circuit wrestles with ‘unprecedented’ lawsuit

The unusual case requires the federal appeals court to decide whether the executive branch can sue the judicial branch.RICHMOND, Va. (CN) — The executive branch asked a Fourth Circuit panel on Friday to weigh in on a first-of-its-kind challenge to the judicial branch’s rulemaking authority.​The hearing comes after the federal government took the unusual step of suing the entireU.S. District Court of Maryland bench for issuing two standing orders prohibiting immigration officials from removing or altering a detainee’s legal status until at least two business days after they file a habeas corpus petition. Virginia-based U.S. District Judge Thomas Cullen, a Donald Trump appointee, dismissed the suit, holding that the executive branch lacked the authority to sue the judicial branch.​"Any fair reading of the legal authorities cited by defendants leads to the ineluctable conclusion that this court has no alternative but to dismiss," Cullen said. “To hold otherwise would run counter to overwhelming precedent, depart from longstanding constitutional tradition and offend the rule of law.”​The executive branch would typically challenge local orders by appealing a particular habeas proceeding to the Fourth Circuit. The Maryland judges claimed they implemented the orders in response to a flood of petitions arising from Trump’s push to expedite removals. Attorney Paul Clement of Clement Murphy, representing the judges, emphasized the case’s unprecedented nature.“Judge Cullen was correct to recognize that the executive’s extraordinary effort here to sue an entire judicial district in the name of the United States is a grave threat to the separation of powers,” Clement said. “This is not the first time in American history that the executive branch has been frustrated with the judiciary, but they haven’t resorted to this kind of extraordinary action.”​U.S. Circuit Judge Marvin Quattlebaum, a Trump appointee, seemed less interested in precedent.​"Just because it’s unprecedented doesn’t mean it’s wrong," Quattlebaum said. “We get put in bad spots all the time. I don’t think that’s a reason to rule against the government.”​Clement also pointed to the complications of a judge from a different district ruling on a parallel district as a reason this type of case can’t work.​"A lawsuit like this creates what they call horizontal judicial review," Clement said of the 11th Circuit’s decision in Bolin v. Story. “That’s just contrary to the way our whole judicial system is set up, and it really underscores that there’s something fundamentally problematic about these suits.”​Justice Department attorney Sarah Welch argued the executive branch has a legitimate cause of action through the U.S. Supreme Court’s 1895 ruling in re Debs. She insisted Debsgave the federal government the authority to enjoin any practice that infringes upon a sovereign interest.​U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, pressed Welch on the lack of case law. Thacker also asked whether the executive branch’s argument had a limiting principle.​"Why couldn’t the United States just evade judicial review any time it wanted to and didn’t like a court’s ruling or a court’s orders by suing the entire court as it did here?" Thacker asked. “What’s to stop the executive branch from suing the Fourth Circuit?”​Welch responded that the action isn’t challenging an adverse ruling, which they conceded they couldn’t do, but rather a procedural rule.​Still, Quattlebaum seemed unsure whether Debsstretched to encompass the executive branch suing an equal branch of government. The Debs case concerned the federal government’s dismay with union leader Eugene Debs’ refusal to end a railway strike. Quattlebaum suggested that Debs provided the federal government only with an avenue to sue for equity purposes.​"I’m still trying to figure out if there are any limits to your view of a Debs claim," Quattlebaum said to Welch. “We gotta define what Debsmeans.”​Clement argued the judges also enjoy judicial immunity even if the panel recognizes Debs as a cause of action. U.S. Circuit Judge DeAndrea Gist Benjamin, a Joe Biden appointee, completed the three-judge panel. Clement and the Justice Department did not respond to a request for comment.​Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads