Justice Department Escalates Fight with Judiciary

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2:03He's also been at the center of the administration's attacks on the federal judiciary. Attorney General Pam Bondi has repeatedly criticized Boasberg. This judge has no right to ask those questions. You have one unelected federal judge trying to control foreign policies, trying to control the Alien Enemies Act, which they have no business presiding over. This judge had no right to do that. They're meddling in foreign affairs. They're meddling in our government. And the question should be, why is a judge trying to protect terrorists who have invaded our country over American citizens? And then, of course, Boesburg trying to control our foreign policy.

2:49These judges are out of control. We are going to fight back and we are going to win. President Trump has called Boesburg a radical left lunatic of a judge, a troublemaker, an agitator, even calling for his impeachment. That led to a rare rebuke from Chief Justice John Roberts in March. Now the Justice Department is escalating its fight with Boesburg. It's filed an ethics complaint accusing the judge of misconduct. My guest is constitutional law expert David Super, a professor at Georgetown Law. David, why has the administration been focusing so much on Judge Boasberg? Cases are assigned to district judges randomly.

3:32Judge Boasberg had the misfortune of drawing the first case involving the Trump administration's bizarre application of the Alien Enemies Act in a non-wartime situation. And he did what any competent judge would do, which is declare it illegal. The complaint focuses on a March session of the Judicial Conference of the United States, a panel of judges led by Chief Justice John Roberts. The Justice Department accused Boesberg of raising, quote, concerns that the administration would disregard rulings of federal courts leading to a constitutional crisis and said his comments violated a section of the Code of Conduct for federal judges, which says that they should not make any public comment on the merits of a matter pending or impending in any court.

4:25if he did, in fact, say this. Is it out of bounds for a judge at a meeting that's supposed to be private to say something like that? No, of course not. This complaint doesn't pass the laugh test. It's not a public statement. It's a statement with only judges present. I would love to attend meetings in this judicial conference, but I'm never invited. I'm sure you would, too. It's a private meeting. By this reasoning, someone should bring a complaint against Justice Alito for indicating that he thought Roe v. Wade should be overruled and circulating his draft opinion in Dobbs, which later became public.

5:03Judge Boasberg is not responsible for other people leaking memos about things he said in private meetings among judges any more than Justice Alito would be responsible for the leak of his draft opinion that he shared with other justices. In the complaint, the Justice Department also says that Judge Boasberg had no basis for saying that because the Trump administration has always complied with court orders. But the administration violated Boasberg's verbal order in this very case. Judge Boasberg's role on the judicial conferences is a representative of district judges in the District of Columbia.

5:41He is responsible for reporting what judges on his court are concerned about, and it would be a dereliction of his duty if he didn't report concerns that they had. Judges on his court had found the administration to be out of compliance with a number of court orders. by administration officials, certainly including the vice president, arguably including the president, had mused about whether they would honor court orders on various topics, even Supreme Court orders, certainly orders of district courts. And the question of how to deal with the administration violating court orders had already been up and down to the Supreme Court by that point.

6:30Obviously, it was something they were concerned about. He was not, as we've been told, expressing his own views, but rather the views of other judges on his bench. I'm sure at other times the chief judge of the District of Columbia may have reported that they feel inundated with fentanyl cases or they feel inundated with crystal meth cases. This is a place where judges talk about the challenges of maintaining the judiciary. He was doing exactly what he was supposed to be doing. Is it concerning that apparently a memo of the meeting was leaked to the conservative website, The Federalist? Well, the judicial conference is representing judges and business about it.

7:16So memos of what happened at this meeting do get circulated to judges. President Trump has made a point of appointing members of the Federalist Society to the judiciary. So many Federalist Society members received this memo, and one of them apparently chose to leak it to the Federalists. It's also in isolation. They just talk about his comment. There must have been some kind of discussion that followed that or some remarks in response, but it's just isolated to this one comment that he made, which is unusual? Well, it is. And they describe his comments as being uncalled for, but they don't give us any context to suggest that they weren't.

8:01And again, Judge Boesberg's role there was to bring to the judicial conference concerns by judges on his court and judges reacting negatively to administration officials and Republican senators suggesting that they disregard court orders would be an obvious thing to discuss. He doesn't indicate what the point of the agenda was, what prompted this, or what anyone else said afterwards. Moreover, the Code of Judicial Conduct prohibits comments on the merits of the case. This is not a merits issue. This is an issue about what does the court do when it has decided the merits and one of the parties doesn't comply.

8:46The Justice Department also complains about his handling of the case involving the alleged Venezuelan gang members, saying he rushed the government through complex litigation, sometimes giving the Trump administration less than 48 hours to respond. Well, the rushing was by the administration. The administration could have agreed to suspend flights until this matter was litigated and the parties could have submitted their papers in due time. The administration was in physical control of all of these people. It had no need to send them to El Salvador. It chose to do it in a great hurry, and that led to a quick response from Judge Bozeman.

9:30Many judges would not have given the administration any opportunity to respond at all when enjoining a crisis that was entirely of that party's making. Judge Bosberg bent over backwards to be considerate of the administration and to accommodate the schedule, which they insisted was very urgent, even though they never explained why. If you have a problem with the judge handling your case, does a litigant file a misconduct complaint or wait for the appeal? If what the judge does is sufficiently egregious, you can file a misconduct complaint. It's not out now than appropriate. But what Judge Boseberg here did doesn't meet any of the requirements of an improper act.

10:18It wasn't public. It wasn't on the merits. It wasn't prejudicial. So the normal procedure would be either to appeal or, in some instances, to move for the judge to be recused. But the standard even for recusal and for appeal is much, much higher than this, and the standard for judicial misconduct is higher still. You said it doesn't pass the laugh test. What do you expect to happen here? In a normal world, the chief judge of the D.C. Circuit would dismiss this outright. Because this comes from the Justice Department and from an administration that has been exceedingly vindictive and has crossed lines that none of its predecessors have in criticizing sitting judges, the chief judge may refer it to a panel, but those judges would then dismiss it.

11:12We've talked before about this. This is the latest in a string of confrontations of the Trump administration with the federal courts. They filed a misconduct complaint in February against another D.C. federal judge, Anna Reyes, accusing her of hostile and egregious misconduct for her sharp questioning of government lawyers in the case on the Pentagon's attempts to ban transgender people from military service. And last month, they sued every judge in Maryland over a standing order that blocked the immediate deportation of migrants challenging their removal for two days. Is there a strategy here?

11:49Well, certainly the strategy is to intimidate federal judges. The public criticisms of them, which have led reportedly to spikes in death threats, is part of this. The suggestion that they don't have to follow them, the characterization of them as radical leftists. Some of the judges they've called radical leftists were appointed by Ronald Reagan, but no mind. So this is all part of a broader strategy to delegitimate the courts, to have people not believe that the courts can determine the law, and to have people do entirely what the government says. That's the path to a dictatorship. How unusual is it for the Justice Department to file a complaint against a federal judge?

12:32In the past, under other presidents, have Justice Departments taken this course? Almost never. And a good example of that is the behavior of Judge Cannon in one of President Trump's criminal cases. A number of her rulings were very strange, sometimes self-initiated rulings in favor of Mr. Trump. And the Justice Department, though it had plenty of grounds, didn't even move to recuse her, much less file a judicial misconduct complaint. The ordinary views of the Justice Department has a strong interest in public respect for the judiciary and doesn't want to undermine it. This administration obviously feels differently.

13:14And tell us a little about Judge Boesberg's reputation. Judge Boesberg is an extremely thorough, extremely smart judge. He basically gives you what you get. If you give him a serious argument, he'll either rule in your favor or give you a careful and a political reason why he won't. If you give him a silly argument, he will say so and not dignify it with a lot of extra words. He's very hardworking, very attentive to the law. He has ruled in the Trump administration's favor on a number of matters, including involving the Alien Enemies Act, because he felt the law was in their favor. He's not a partisan.

13:53And by the way, the D.C. appellate court has not yet addressed the complaint against Judge Reyes for her sharp questioning of government lawyers. I will point out that the standard was that lawyers shouldn't be sharply questioned. There are only about two judges I ever practiced in front of that I couldn't have filed misconduct complaints against. You have to have a tough skin if you're going to be a litigator. Always a pleasure, David. Thank you. That's Professor David Super of Georgetown Law. Coming up next, a blow to labor judges. This is Bloomberg. Quick one before you jump back in. You're listening for ways to help teams move faster, make sharper decisions, and turn scattered context into work they can use.

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16:27Wasabi Hot Cloud Storage, proud partner of iHeart Podcast Network. The Third Circuit Court of Appeals has found that the Labor Department's internal agency judges don't have the power to hear enforcement disputes over the H-2A visa program for seasonal farm workers. It ruled in favor of a New Jersey farm that was trying to overturn more than a half million dollars in penalties by arguing that the Labor Department's judicial system was unconstitutional under Supreme Court precedent. The decision could have broad ramifications. Joining me is constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law.

17:10Hal, tell us about the challenge to the fines here. The Third Circuit case concerned administration of the H-2A visa worker program, which is designed to bring in seasonal workers from out of the country to help with orchards, as in this case, or farms, or it could be entertainment complexes when there's not enough U.S. domestic workers. And the program is a win-win. It helps U.S. industries, and it helps people from outside the borders get a little taste of the United States and earn some money at the same time. And so in this case, the Department of Labor alleged that Sun Valley Orchards had violated the requirements of the program in many ways, requiring 12-hour working days, providing inadequate water supplies, inadequate bathroom breaks, and so forth.

18:01And so they decided to bring an enforcement action, which ended up being hundreds of thousands of dollars in fines as a way to punish Sun Orchards, also to give some kind of compensation back to the workers, and at the same time send a signal to others who were using seasonal workers through the H-2A program. And so this case raised the question then of could this enforcement action be brought within the agency itself? And this comes on the heels of the Supreme Court's decision in the JARCSE case, which surprisingly limited the types of cases that can be brought before agency tribunals. And all the courts of appeals are struggling with these cases now because the Supreme Court did not make a very clear distinction of what type of enforcement claims can be brought before the agency and which have to go to court with a jury.

18:59And that's a huge consequence because if you have an enforcement action before a court with a jury, it's slower, it's more expensive. And as a result, agencies can bring fewer enforcement actions and they will have to pick and choose. So this case comes on the heels of many now across the country struggling with challenges to agency enforcement actions, trying to figure out which side of the line do they fall on. Can they be brought before the agency, or does the agency have to go to court with the jury trial and bring the action there? As you mentioned, going to trial is expensive. Why do employers prefer going to trial to having an administrative law judge decide the case?

19:43Well, there are several reasons. I mean, one is they think that with some, you know, credibility, they think that the ALJ and the agency, which will then decide the case, may well be biased against them. Some limited data bears this out, not conclusive, but there's some data. But on the other hand, they think that the agency won't be as likely to bring the action if they have to spend so much money on enforcement. So in any given case, the goal would be to go to court because it takes longer, and the agency may not be able to expend the resources to see it through. Here, the oral arguments hinged on a public rights exception in the Jarkisi case?

20:26So what the Supreme Court held in Jarkisi was that it limited what we understood to be the public rights doctrine. The public rights document suggested that the Seventh Amendment and those kind of key rights that everybody enjoys in terms of going to trial and having a jury of your peers be a protection doesn't apply if the issue is between the government and a private individual. That was our old understanding of the public rights doctrine, so that if Congress set up an administrative scheme with penalties for dangerous workplace, or in this case, you don't treat your employees right, or in another case, it's dangerous chemical storage or privacy violations, if Congress sets up that scheme, it can choose whether to have enforcement in an administrative agency if it wanted to because it had to do with a non-construction.

21:21common law right of action that Congress has created and therefore can decide to use the instrumentality or mechanism of an administrative agency to adjudicate it. That was the prior understanding. The Supreme Court in Jarvissey cut that back, but we don't know exactly how far. They really said two different things difficult to reconcile. The first, they said, if there is a close common law analog to the action, even if Congress has created a new one, if it looks like a common law action, then the jury trial right remains. And so in the Charker C. case itself, it was a fraud action against people who had tried to swindle people under the securities laws.

22:03And so the court there said, this looks like a common law fraud action. It has to go to a court. And most of the courts of appeals that have been wrestling with this, look at that line and try to see how close to a common law action does this particular issue exist in terms of whether or not the enforcement can be placed in a court or in an administrative agency. So Rob Johnson, a senior attorney at the Institute for Justice and Counsel for Sun Valley, told Bloomberg, this decision means that employers facing penalties for H-2A violations can now demand a jury trial in federal court. Is that true for all violations or certain violations?

22:47Probably all violations of the H-2A program. This doesn't cover, of course, other administrative mechanisms. And indeed, the Third Circuit has gone the other way in a separate case. But he's right with respect to this particular mechanism for seasonal workers. The court held that the particular enforcement looked like a common law contract action because of the fact that under the program, in essence, the Department of Labor enforces employers to provide certain contractual services to these seasonal workers. And so the court held that even though, interestingly enough, this arises in an immigration type context because of this pseudo contractual underlying requirement that all infractions have to go to court.

23:41And, you know, turning the lens the other way, we know that, in fact, the Supreme Court in Dracracy itself said that an immigration context is different, and therefore the Congress should have more plenary authority to decide where immigration violations should be brought. But the Third Circuit decided even though this arose in an immigration-type context, the real essence of it is a kind of pseudo-contractual relationship between, in this case, the orchard and the seasonal workers, and therefore that any infraction had to be brought before a jury trial in the federal district court. The implications of this case, how far reaching are they?

24:19I mean, could it potentially impact other agencies that handle enforcement actions? Well, there's a number of cases now that are percolating around the country in the wake of just to see where the line should be brought. We know that much of the mechanism of agency enforcement has been crippled now because of the advocacy decision, that instead there'll be fewer cases because they have to be brought in district courts. And the question is how to figure out which cases have to be brought in court and which cases have to be brought before the agency. So to show the other side of the coin, the Third Circuit itself in a different case just a couple months ago, decided that fines for not storing hazardous materials correctly, that fines could be brought before the agency.

25:08They're a paint company, allegedly had not stored dangerous materials carefully enough. And the court in that case, under the Federal Aviation Administration, had decided to bring again the action before its own agency, and there was a challenge to it. But the Third Circuit said that this civil penalty action is okay to proceed before an agency because hazardous waste regulations didn't exist of common law. And even though in some ways all this was was a super negligence action, the court in that case, again the same Third Circuit as in the Orchard case, decided that an enforcement action before an agency could go ahead.

25:50So these two cases within one circuit illustrates how the line suggested by the Supreme Court in Charcot-Ce is almost impossible to apply evenly. And so all the courts of appeals are in disarray in how to limit the ability of the public rights doctrine to exist and which cases to funnel to the federal district courts and which can continue on before the agency tribunals. The panel consisted of three judges, all appointed by Republican presidents. Do you think that made a difference? And should they try to appeal to the full circuit, which is more evenly balanced, the full third circuit? You raise a great point.

26:30I mean, I think that this is a politicized issue, not in most people's minds, but it is in terms of certain kinds of sort of judges with an anti-regulatory bias. And even members of the Supreme Court have held that there should be no agency enforcement tribunals at all. I mean, people like Justice Gorsuch in particular, and judges with that kind of bias, and they could be Republicans, maybe some Democrats, mostly Republicans, would tend to find almost no case appropriate to be brought before an agency tribunal, with probably some exceptions as for immigration, foreign affairs, etc. So to a certain extent this is politicized.

27:09I don't think it's exactly the same fault lines as we think of in terms of pro-Trump or anti-Trump, but certainly it is in terms of anti-regulatory Republicans versus others with a different bent. So this case, because of the split in the Third Circuit, one of these cases that we've discussed may go to the Supreme Court because the Supreme Court really does need to clarify the extent of democracy and when the Seventh Amendment, In other words, eclipses an agency's ability to have an enforcement action. If you're in favor of agency actions and power, do you really want this to go to the Supreme Court again?

27:48Do you really want this to go to the Supreme Court? I think within the Trump administration itself, there has not been a clear signal of what the Trump administration's position will be. So the Solicitor General will have to sift through these cases and decide what their position is. They've made announcements about other administrative law issues, principally with respect to removal of officers, but they've been silent with respect to the breadth of draccy. So we don't exactly know their position. One would think they might decide to strip their own agencies of power, but they haven't done that.

28:22So they're obviously probably a little bit ambivalent about sapping their own agency's power to have these enforcement actions before their own agencies. So that's the decision they'll have to make, and they haven't sent a clear signal yet. I guess your priorities can change depending on whether you're the one in charge of the agency or not. Thanks so much, Hal. That's Professor Harold Krent of the Chicago-Kent College of Law. Coming up next on the Bloomberg Law Show, a controversial Trump nominee wins a lifetime appointment to the Third Circuit. I'm June Grosso, and you're listening to Bloomberg.