At Politico, legal affairs reporter Kyle Cheney writes about the enormous number of cases in which federal judges, representing appointees of both Republican and Democratic presidents and Senate majorities, have found that Donald Trump and his regime have violated the law, “sometimes flagrantly,” in their unserious immigration enforcement efforts. Cheney quotes one of those judges, leftist firebrand Patrick Schiltz, noting “the defiance of several court orders by ICE, and the illegal detention of many detainees by ICE.” Despite my general view that social media are a sewer and that the country would be vastly better off if people eschewed the attention economy in all its variants and stuck with longer, slower, better, less exciting and immediate, and more professional print news outlets, I must commend to readers this social media thread by Cheney.
Cheney suggests that “[t]he judges’ alarm has formed the backdrop to a broader clash between the Trump administration and Minnesota’s elected leaders” over paramilitary operations in the region. Maybe so. But going forward, it will certainly form a backdrop to that district’s judges’ evaluation of claims and promises made by the executive branch’s officials and lawyers, at least where immigration enforcement is involved. (Although it seems to me that when an executive regime insists on the seamlessly unified nature of that branch, it would be more proper to treat an untrustworthy agency–especially one carrying out what that branch says is its president’s signature policy, with the ongoing oversight and involvement of that president–as strong evidence that all of the executive branch is untrustworthy.) And not just that district, as Cheney’s links and yesterday’s post about the Central District of California suggest.
And rightly so. Trust is a well that can be filled or emptied. Presumptions of good faith and conformity to law are ultimately cumulatively as well as individually defeasible. And judges are not potted plants; they’re obliged to be impartial, not ignorant. As one scholar argued in a related context, “Courts should hesitate before rewarding maladministration with obeisance. Indeed, deference encourages further abuses of the administrative process.” Judges who are repeatedly exposed to abuses, evasions, questionable conduct, and excess both should and inevitably will respond with “heightened scrutiny.”