A federal judge in the nation’s capital blocked agents from making warrantless civil immigration arrests without first finding the person poses a flight risk.
In her 88-page ruling on Tuesday, U.S. District Judge Beryl Howell said the immigrant plaintiffs were likely to succeed in their claim that the government has been illegally conducting such arrests without probable cause.
While rejecting one of the Trump administration’s arguments, Howell shined a light on the Supreme Court’s shadow docket, where the justices sometimes issue contentious decisions without explanation.
One of those decisions came up in Howell’s ruling — a case from September called Noem v. Perdomo. There, the high court’s Republican-appointed majority refused to explain itself when it lifted a judge’s order that had curbed racial profiling by agents in Los Angeles. The only member of the majority to publish their thoughts in defense of the move was Justice Brett Kavanaugh (leading to the so-called Kavanaugh stops permitted by the high court).
In the D.C. case decided Tuesday, the federal government had invoked Kavanaugh’s September concurrence, noting his suggestion that the plaintiffs in that case lacked legal standing to bring their lawsuit under Supreme Court precedent.
Yet, Howell pointed out that even the government conceded the Trump-appointed justice’s opinion didn’t constitute binding precedent. “The Court majority merely issued a one-paragraph order granting a stay without any explanation for its holding,” the Obama appointee wrote.
“Bluntly put, why the Court ruled as it did remains unclear — and without reasoning, this order cannot even be considered as persuasive,” she wrote of the Perdomo decision.
In any event, Howell sought to distinguish the Perdomo case from the one before her. She wrote that the latter “concerns an entirely different context, namely, civil immigration arrests rather than immigration stops, which were at issue in Perdomo, and a different type of challenge. Specifically, plaintiffs are not arguing which factors [government] defendants may consider in their application of a legal standard, but rather contend that defendants have abandoned the proper legal standard entirely.”
But any lower court ruling against the administration, particularly in the realm of immigration enforcement, raises the question of how the high court would handle it on appeal. Would the majority agree with Howell’s reasoning if her injunction becomes the latest subject of an emergency appeal to the justices?
It’s hard to assume so, especially when the court doesn’t have to explain its reasons for disagreement.
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