The Administration sued the District of Maryland and every judge, challenging standing orders imposing automatic administrative stays on habeas actions by alien detainees. I questioned using offensive litigation (as opposed to appealing the imposition of a stay in a particular case). Judge Thomas Cullen (W.D. Va.), designated to hear the case because all D Md. judges recused, agreed. The path is appeal (or mandamus) of application in a given habeas case or a petition to the district’s rulemaking body to repeal the orders (to the extent they are local rules rather than orders).
How Cullen got there is interesting:
• No standing because no redressability because–citing CASA–federal courts cannot enjoin other federal judges because English Chancery Courts lacked such power. The Court distinguished Pulliam v. Allen, which allowed injunctions (and thus attorney’s fees) against state judges under § 1983, as involving injunctions of inferior judges under a congressionally created cause of action (§ 1983). Cullen also found standing for a declaratory judgment, because Congress authorized that remedy. I am not sure standing–to the extent it is jurisdictional (which it should not be)–can turn on the existence of congressional remedies.
• The judges have judicial immunity for the same reason–Pulliam is a § 1983 case authorizing federal judges to enjoin “inferior” state judges, not to enjoin judges on the same level. He also notes that it would mean that a federal district court would have the power to enjoin a higher court judge.
• No cause of action. In re Debs does not authorize the executive to sue a coordinate branch of government solely to stop violations of law (as he can with state, local, and private conduct). Cullen cites to recent Bivens cases to insist that he lacks the power to find a new cause of action or to “extend” Debs to this point.
The logic of this should extend to Trumps’ threatened suit against the Senate over blue slips–a combination of Speech or Debate immunity and Debs not authorizing a suit against Congress.
Posted by Howard Wasserman on August 27, 2025 at 07:26 AM