The Seventh Circuit (members of panel not identified) issued a writ of mandamus reversing Judge Ellis’ order that Greg Bovino, Chief Patrol Agent for ICE, appear daily to report on the use of force in the Chicago area. The panel said the order infringes on separation of powers by placing the judge in the role of “inquisitor rather than that of a neutral adjudicator of the parties’ adversarial presentations” and by allowing the judge to engage in personnel management by supervising an executive officer.
This is facile reasoning. By its nature, equity is more inquisitorial, empowering the court to do justice, less purely reactive to the parties’ competing arguments. The judge issued a TRO that she believed the defendant and her agents within DHS and ICE (including Bovino) were violating, likely at Bovino’s urging or approval. The executive’s ordinary freedom and discretion to perform its functions stops when those functions run afoul of an unstayed (and thus valid) order. And the judge must enjoy greater power to protect her judgments, including acting sua sponte against executive officials who ignore and undermine those orders.
The court’s order as to Bovino might be the wrong way to protect the underlying order. But adversariness-and-separation-of-powers simpliciter cannot justify this decision.