Judge Skeptical of Trump Suit Against All Federal Judges in Maryland

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1:44This is Bloomberg Law with June Grosso from Bloomberg Radio. Attorney General Pam Bondi has repeatedly criticized federal judges who've held back President Trump's agenda, calling them liberal, activist and out of control. Judges have used these injunctions to block virtually all of President Trump's policies. To put this in perspective, there are 94 federal judicial districts. Five of those districts throughout this country held 35 of the nationwide injunctions. Think about that. 94 districts. And 35 out of the 40 opinions with nationwide injunctions came from five liberal districts in this country.

2:35And one of those so-called liberal districts where nationwide injunctions have been issued is the District of Maryland. And the Justice Department has picked that district to file an unprecedented lawsuit against all the sitting federal judges in the district. It's over a standing order that blocks for two days the deportation of detained immigrants who file habeas petitions. Of course, Maryland is also the district that drew national attention in the case of Kilmar Abrego Garcia, who was wrongfully deported to El Salvador. Joining me is constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law.

3:19How this lawsuit is unprecedented, how much is this a ratcheting up of the Trump administration's power struggle with the judiciary? The Department of Justice had options here. They could have easily chosen one of the 12 cases in which the automatic stay had been imposed to file an appeal, and they would have been able to obtain in an orderly fashion appellate review of the propriety of the District of Maryland standing order, which imposed the automatic stay in an immigration habeas context. They chose not to do that. They ratcheted up detention by filing a parallel lawsuit against all members of the District of Maryland individually as judges.

4:02And that sets the framework for a very important separation of powers challenge, namely whether the executive branch can sue judges, get information about them, depositions, because they don't like a standing order. So the procedural posture itself is what is the most troubling aspect of this case, not the only one, but certainly the most troubling. The government says that two-day pause in deportations in cases where detained immigrants are challenging their detainment by habeas corpus, they say that that inhibits the president's ability to enforce federal immigration laws and that the chief judge has no authority to issue such a blanket order.

4:47Yeah, so many courts of appeals, and in the case I think they cited five courts of appeals, have automatic stays in certain contexts in order to preserve the jurisdiction of the court. And so the District of Maryland is the site which famously gave rise to the Kilmer Abrego Garcia case, where the government shipped Garcia out of the country surreptitiously while a challenge was going on. And so because they had been burned and the Department of Justice had interfered with the jurisdiction of the court previously, that's what led to this standing order being promulgated. So, I mean, the Department of Justice is right in the sense that an automatic stay does interfere with cases in which the individual has no claim whatsoever not to be deported.

5:37But, you know, the delay is only for two days. And given what's happened before in terms of the due process violation that the government has committed by transporting Garcia and others away without any kind of chance for hearing, the court followed the lead of other courts' appeals, which said, look, just give us two days to see if there's any substance here. And if there's no substance, we'll say, go ahead, ship the person out. So the Department of Justice has taken a very unusual stance in this context to, again, increase the pressure on judges by suing them, which is unparalleled. And in the hearing that we had just a couple of days ago, the Trump appointee seemed very dubious as to the validity of the Department of Justice's challenge.

6:23So Judge Cullen, who, by the way, normally sits in Roanoke, Virginia, but the Fourth Circuit assigned him to hear this case because all the Maryland judges were conflicted out. And he is a Trump appointee. And he said, one of the things about me is I don't have a very good poker face, he said to the government lawyer. And I think you've probably picked up on the fact that I have some skepticism. He had a lot of skepticism if you look at what happened at the hearing. Also, he questioned whether this could lead to other executive branch litigation against federal benches all the way up to the Supreme Court.

7:03Yeah, I mean, we don't want the specter of DOJ suing judges and having other judges then sitting to judge the lawsuit against judges. And that comes with, you know, subpoenas, depositions, discovery. not only is it unseemly, it was certainly chill, independent judging. So the very fact of rummaging around in a judge's files to determine what lay behind in this case, the standing order, kind of correspondence there was, would inhibit judicial freedom and really compromise the independence of the judiciary as we know it. So I think that Judge Colm was right on in saying that even if there were some kind of issue on the merits here, and that there's something of a case, that the Department of Justice has.

7:50This is not the way to challenge it. Take it normally and challenge it up to the Fourth Circuit. And if you need to, the Supreme Court, don't sue the judges themselves. Representing the judges was Paul Clement, a top conservative litigator and a former solicitor general in the George W. Bush administration, who's been appearing in many cases challenging the Trump administration. He warned about a nightmare scenario in which judges could be deposed, other internal judiciary documents could be reviewed by the government, executive branch lawyers cross-examining judges, and lawyers for the judges grilling White House officials in open court.

8:32And again, this is not how these disputes should be resolved. I think the Department of Justice needlessly fanned the flames of conflict here. I think they'll be repudiated by the courts. This was a needless exercise. It was a thoughtless exercise. And I think it will be resolved in the court system. And the question always on these cases is, will the government comply? Will they not deport people for at least that two-day period to give judges a sneak peek at the merits to say, well, we need to have a hearing here, or to say, no, go ahead and deport the individual. We'll have to see whether they comply.

9:10And the Justice Department's lawyer refused to commit to not filing similar lawsuits against federal courts in the future. And they will be reputed, I predict. I think that's the only way I think judges can react to this provocation. But if they do file, again, we are entering into a very tumultuous period of even more intense conflict between the Trump Justice Department and the judges. You know, at the end of the day, that's even going to frighten the Supreme Court, which is obviously ruled strongly in President Trump's favor in most cases. They're not going to like this either. And I think that the Department of Justice is very short-sighted in filing these kind of lawsuits because at the end of the day, I think the Supreme Court is the one that can try to trim the president's sales and largely been on his side.

10:02But this may push a couple to the other side. Clement mentioned a few different grounds for dismissing the suit, that the government failed to state a claim through which they could seek to block the standing order or that the court could dismiss the case on judicial immunity grounds. I mean, it seems to me that this is just an improvident jurisdictional channel, that the DOJ should be able to sue the standing order, but not by directly challenging judges themselves. And so the court could, you know, I don't know if you want to call it judicial immunity to say that judges could never be sued, because I think they probably can be in some context.

10:42So without going down that route, I think the more limited route would just be saying that in this particular context, there was a jurisdictional error made by the court, and that to have jurisdiction over the standing order, there should be an appeal in a concrete case. I mean, maybe there was a standing order that would give rise to a case of controversy, but there's no sort of immediate chill to the standing order. And since it can be challenging in a case of controversy, I think the court might just stay his hand and say, as a prudential manner, he's going to wait for that context. And the judge also asked why they didn't take this up to the Supreme Court, saying it would have been decided quicker.

11:26And that's the path they've taken before. And I wonder why they didn't bring it to the Supreme Court. You know, I think, as you said, it's not a matter of them not wanting the Supreme Court to hear this. They simply either negligently or intentionally tried to fan the flames of the conflict between judges and the Department of Justice by choosing this procedural route. And so I think it's well within the court's power to say, you chose the wrong route. We're not saying you can't challenge us, you should be able to challenge us, but just not by suing judges directly, but rather by appealing in a context of a particular case or controversy.

12:01This illustrates the Trump administration's offensive against the federal judiciary. There's the inflammatory rhetoric, allegations that the administration has ignored court orders, and they filed ethics complaints against two federal judges for things that they said in the courtroom. What's the administration's strategy? Are they expecting that judges will be intimidated? Certainly part of the rationale of the Trump administration is to receive a softer reception in the courts. So the theory, I guess, is that you have a broadside here and a broadside there, that judges down the road will be more receptive to their arguments and treat their claims with greater receptivity.

12:50But it could backfire. And as I mentioned before, my thought is that this kind of action will boomerang because it will scare even judges who would otherwise be sympathetic with the Trump administration. because if we want to have any kind of independent judging left in this country, we can't have the executive branch suing and deposing and seeking private correspondence from judges in particular cases. So that's the specter of what we have through this lawsuit. And again, I don't think the separate administration will achieve their ends, at least through this means. Hal, you're going to come back a little later in the show to talk about our next topic, the D.C.

13:34Circuit Court allowing the Trump administration to block billions of dollars in foreign aid. This is Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work. I'm Carol Masser. DoorDash, the largest food delivery company in the U.S., is building its own delivery drones and has gained the necessary FAA approvals to operate them commercially, the latest in its effort to delegate more orders to robots as a way of cutting delivery times. Bloomberg's Natalie Lung reports the company says it has been conducting pilot programs with various restaurants, some of which have seen their order volume grow during the test period.

14:13The effort marks an expansion of DoorDash's in-house robotics efforts to reduce reliance on human couriers for some orders, as their wages constitute a key expense to the business. Drones are also a way for DoorDash to cut delivery times on orders from more remote locations that some dashers may not want. That's the Bloomberg Tech Minute, brought to you by ChatGPT. Put ChatGPT to work on your most ambitious ideas and projects. Get started at ChachiPT.com today by selecting Work Mode, available on Plus and Pro Plans. Let's talk about healthcare for a second. It doesn't always work the way people expect it to.

14:53If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers. Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together.

15:27Technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. It's time to plan ahead and make sure your brand is showing up in ways that can have an impact. That's where 4imprint comes in. 4imprint have promotional products that work as hard as you do. Durable, useful, and designed to make a lasting impression. Think quality apparel your team will wear again and again, including popular and exclusive brands.

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16:42For certain.

16:46It's a significant win for President Trump in his efforts to dissolve the U.S. Agency for International Development and withhold funding from programs that have fallen out of favor with his administration. The D.C. Circuit Court of Appeals has ruled that the administration can cut billions of dollars in foreign assistance funds approved by Congress for this year. The nonprofits and businesses that sued argued that the president and agency leaders couldn't defy Congress's spending mandates and didn't have discretion to decide that only some, let alone none, of the money appropriated by Congress should be paid out.

17:27Joining me is Zoe Tillman, Bloomberg News senior reporter. A lower court had found that the administration was violating the separation of powers by not authorizing the money to be paid in line with what Congress had approved. Why did the appellate court reverse? So the 2-1 majority of this D.C. Circuit panel basically said that the challengers in this case, which included nonprofits, businesses, private contractors that do foreign aid work, that they don't have their own separate constitutional challenge path for something like this. That if the president wants to refuse to spend money that Congress has appropriated, which is known as impoundment, there's a U.S.

18:11law that says that's not allowed. And the only party that can enforce that basically is Congress, that an official called the Comptroller General can sue to enforce that impoundment control law, but that there isn't a separate private cause of action for anyone else to bring a claim like the one brought in this case saying there was a separation of powers violation. So the court basically said, you know, we're not going to reach the question of whether what Trump is doing in refusing to spend this money is constitutional or is not constitutional. The court said this type of lawsuit just isn't allowed.

18:49I mean, is it the government accountability office that has to Sue? Right. So the majority said that under the Impoundment Control Act, the Government Accountability Office and the Comptroller General have separate roles to play that they have to send. There's a notice that goes to Congress that says there's a violation. And then within statutorily prescribed period of time, I think it's maybe 25 days after that, then the Comptroller General can bring a lawsuit against the administration to enforce the appropriation that Congress approved. And, you know, the odds of that happening, very unclear if that's a thing that could happen or would happen.

19:29Republicans control Congress. And it's not a situation where Congress has at all been adversarial to the administration, even when this administration has really tried to, you know, exercise more control over things that have been traditionally and constitutionally the role of Congress, like deciding how federal money is spent. The Government Accountability Office has found that the Trump administration illegally impounded funds authorized by Congress a few times, but they've never sued over it. That's true. They've played that oversight role. It just would be really an escalation between the two branches to sue.

20:08It's not that kind of dynamic so far. There have been a lot of lawsuits over Trump failing to use funds as directed by Congress. Has this type of analysis been done before? We certainly have not had a ruling like this, and definitely not from a circuit court, let alone the D.C. Circuit, which sets precedent for the nation's capital and where the majority of cases against the administration over everything from funding to firing have played out. Now, it's important to say that this is about impoundment. It doesn't automatically knock out from court parties that are suing over other ways the administration has sought to cut funding.

20:54You know, it doesn't apply to cases regarding certain types of grant cancellations or suspensions. It doesn't deal with cases we've seen over new conditions that the administration has placed on grants and contracts and how it wants to direct federal dollars. But to the extent there are cases that broadly challenge what they say are a legal move by the president to simply unilaterally refuse to spend money or obligate it once Congress has appropriated it. If this D.C. Circuit decision stands, and that's a very big if, given things we expect to come soon, it would really complicate efforts to bring those types of cases, at least in Washington, going forward.

21:39It was a two to one decision, as you mentioned, with judges appointed by George H.W. Bush and Donald Trump in the majority and a Biden appointee dissenting. If they ask the full D.C. Circuit to hear the case on bank there, there are more judges appointed by Democrats than judges appointed by Republicans. Is there any indication that they might ask for an on-bank panel? Yes, we've gotten, you know, statements from groups involved in this litigation saying that they're going to pursue options to review, which we understand to mean they're going to ask the full D.C. circuit to reconsider the panel's decision.

22:23And, you know, it's interesting this year because of just coincidence, the ways that the wheel has spun in D.C., even though there are a majority of more liberal leaning Democrat appointed judges on the circuit, there have been a number of panels and consequential cases with majority of Republican appointees who are more conservative leaning, like Judge Henderson, who was an H.W. Bush appointee, and Judge Cassis, who was a Trump appointee. So it's not a guarantee. The court is supposed to set a very high bar for when it takes cases en banc. It's not just supposed to be, you know, whoever loses gets that next step of review.

23:03It's supposed to be reserved for extraordinary situations, situations where the court, you know, is a need to step in and really set new precedent for the circuit. But, you know, given the stakes here, it seems like at least a contender for the judges to vote to take this up and reconsider what the panel did. Is this case one of the few where the Supreme Court refused to step in, where the administration lost that motion before the Supreme Court? That's right. Very early on. And this case also has a number of different claims in it. And some of the early orders that were at issue involved sort of related but separate issues on a more emergency, temporary restraining order type basis.

23:56So, you know, there were sort of claims related to the government's refusal to pay money for work that had already been done pursuant to contracts, different from the sort of sweeping constitutional claims that were at issue in this latest opinion. But early on, yes, there was a situation where the judge entered orders that said the government could not just simply refuse to pay money, especially for this work that had been done early in the administration. And the Supreme Court had refused to step in and disturb that initial order that, you know, required the government to keep paying out the money that it was supposed to.

24:33But, you know, it's not a merits decision. It was on the emergency docket, also known as the shadow docket. And if this case went back up again now on a merits basis, that's certainly not a guarantee that the government would fail to sway a majority of the justices this time around. So, I mean, does this mean that the Trump administration can use that money for something else right away? Or is there an injunction in place? Right now, the circuit's opinion, I believe, has not formally taken effect yet. they haven't issued the mandate, which would be sort of making it official. There's this time window where the plaintiffs, the nonprofits and the contractors and the businesses could ask the full court to reconsider.

25:18So sort of nothing immediately changes for the next few weeks, at least. You know, when money is impounded, my understanding is that, you know, it goes back to the Treasury. It's not that the administration is free to do whatever it wants with it. It's just that it doesn't have to spend it in the way that Congress approved it to be spent for the fiscal year. Thanks so much for joining me, Zoe. That's Bloomberg News senior reporter Zoe Tillman. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. DoorDash, the largest food delivery company in the U.S., is building its own delivery drones and has gained the necessary FAA approvals to operate them commercially, the latest in its effort to delegate more orders to robots as a way of cutting delivery times.

26:11Bloomberg's Natalie Lung reports the company says it has been conducting pilot programs with various restaurants, some of which have seen their order volume grow during the test period. The effort marks an expansion of DoorDash's in-house robotics efforts to reduce reliance on human couriers for some orders, as their wages constitute a key expense to the business. Drones are also a way for DoorDash to cut delivery times on orders from more remote locations that some dashers may not want. That's the Bloomberg Tech Minute brought to you by ChachiPT. Put ChachiPT to work on your most ambitious ideas and projects.

26:45Get started at ChachiPT.com today by selecting Work Mode, available on Plus and Pro Plans. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated. for patients and providers.