Welcome back, Deadline: Legal Newsletter readers. When we left off, President Donald Trump’s administration had a critical deadline heading into this week. It had until Wednesday to tell U.S. District Judge James Boasberg how it planned to provide due process to the scores of Venezuelan immigrants the government shipped to a Salvadoran mega-prison in March. But in that case and in the California military deployment litigation this week, two separate appellate panels saved the administration from immediate compliance with the law. Five of the six judges on those panels are Trump appointees.
In the first case, Boasberg had said he’d leave it up to the government how to give the men “entombed” in El Salvador’s Center for Terrorism Confinement a chance to challenge their removals. But instead of giving D.C.’s chief federal trial judge its plan, the administration waited until the last minute to ask the appeals court for help. The strategy worked. On Tuesday, a panel of three judges whom Trump had appointed in his first term agreed to put Boasberg’s order on hold.
It’s true that the panel merely granted an “administrative stay,” which technically doesn’t forecast how a court will rule in the end. On that note, Judges Gregory Katsas, Neomi Rao and Justin Walker emphasized that their reprieve “should not be construed in any way as a ruling on the merits.”
But the practical effect is that the men whom Boasberg said were illegally sent to that prison will languish there even longer, while the appellate judges ponder whether to keep the Obama-appointed trial judge’s order on hold, or whether they’ll permit a glimmer of a hope of a shot of a chance for due process.
In the second case, a judge on the other side of the country handed the administration another significant loss at the trial-court level. U.S. District Judge Charles Breyer (brother of retired Supreme Court Justice Stephen Breyer) granted a temporary restraining order against Trump’s takeover of the California National Guard. The Clinton appointee called the president’s actions “illegal” and said control over the Guard would be returned to Democratic Gov. Gavin Newsom at noon Friday in California.
But Trump administration lawyers launched another emergency appeal, and another appellate panel jumped in. On Thursday night, a three-judge panel on the West Coast granted an administrative stay to halt Breyer’s order. It set a hearing for Tuesday to consider a longer-term ruling.
To be sure, the West Coast panel only had two Trump appointees on it, plus a Biden appointee who didn’t note any dissent from the order. But the practical effect is the same as in the first case: the maintenance of a status quo deemed lawless by a veteran trial court judge. While an administrative stay isn’t a formal decision on the merits of an issue, if Trump saw this one as anything but a win, he wouldn’t have responded by writing on social media: “Thank you for the Decision!!!” So, we head into another week with our eyes on the courts, waiting to see if the president will be thanking them again next week. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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