DOJ wrong to fight Maryland judge’s court order

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Federal courts, including district courts, courts of appeals and even the Supreme Court, have long claimed the power to preserve the status quo while they decide a case. Not only do courts possess the inherent power to manage their dockets, but Congress has recognized that courts should have such power by enacting statutes like the All Writs Act, which allows courts to issue writs necessary to preserve their jurisdiction.

Normally, courts exercise this power on a case-by-case basis, perhaps by entering temporary restraining orders, preliminary injunctions, or administrative stays. But when courts hear a case against a defendant that might seek to evade a judicial review, they face a problem. Such a defendant might try to act after normal business hours. Consequently, by the time a plaintiff tracks down a federal judge and the judge is able to get up to speed on the matter, any action the judge takes might come too late to preserve the status quo. Justice might be denied simply because the plaintiff could not obtain timely judicial intervention.

In such circumstances, can federal courts use a standing order to preserve the status quo until they can act, rather than ruling on a case-by-case basis? That is the core question posed by the Trump administration‘s suit against the Maryland federal judges, though the courts may not reach it because the case also presents significant justiciability issues and the decision may instead turn on those issues.

We think the answer to that core question, however, must be yes, at least on the facts of this case. The Maryland federal court issued a standing order barring deportation of alien detainees for two days after a detainee filed a petition for a writ of habeas corpus so that the court would have sufficient time to consider the petition. It is hard for us to believe that a delay of two days imposes a significant burden on the federal government, given the importance of judicial review.

Any American government should recognize that our system depends on courts protecting people’s rights and that that protection is more important than any policy goal, except perhaps in the direst of circumstances. Government actors should not attempt to prevent judicial review of their actions, except when fundamental legal doctrines, like the doctrine of standing, insulate those actions from review.

In our view, affording courts a reasonable time to consider court filings serves the interests of both sides in our partisan society. Otherwise, it is easy to imagine a future Democratic administration illegally seizing and destroying guns or other property before a court could intervene.

Hurried decisions are also less likely to be correct decisions. Judges are human beings. Any of us when roused in the middle of the night can be expected to exercise poor judgment. We are all better off if judges can consider issues carefully.

We urge the Department of Justice to withdraw its lawsuit against the Maryland federal court. The Department of Justice should facilitate court determination of rights, not frustrate it.

Editorial Advisory Board Members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.