In a move more characteristic of a 17th-century English king than a 21st-century American president, the Trump administration last week filed a lawsuit against every sitting federal judge in the state of Maryland.
The charge? That one judge’s attempt to preserve due process for individuals challenging their deportations is disrupting the president’s immigration policies. This unprecedented lawsuit is a dangerous attack on an independent judiciary and escalates the ongoing struggle between the executive and judicial branches. And it brings America one step closer to a constitutional crisis.
On Tuesday, the Justice Department filed a federal lawsuit on behalf of the U.S. government and the Department of Homeland Security in U.S. District Court in Maryland against all 15 active and senior-status judges in that district, as well as the district’s clerk of court. The suit challenges a May 28 order issued by the district’s chief judge concerning the handling of habeas corpus petitions — legal actions that contest the government’s detention of individuals as unlawful.
The May 28 order expressly addresses the “recent influx” of habeas petitions concerning people subject to deportation, an influx triggered by the administration’s aggressive immigration policies.
The May 28 order expressly addresses the “recent influx” of habeas petitions concerning people subject to deportation, an influx triggered by the administration’s aggressive immigration policies. DHS is trying to move quickly to deport people whom it has identified as illegal aliens; in response, many detainees are filing lawsuits to block those deportations. DHS is proceeding with deportation before courts can hear the cases, and judges are scrambling to manage what the May 28 order describes as “hurried and frustrated hearings” in which “clear and concrete information about the location and status of the [detainees] is elusive.” To ensure that detainees are afforded due process — the U.S. Constitution guarantees due process to all “persons” in the United States, not just “citizens” — the May 28 order prohibits the government from deporting a prisoner for two days after a habeas petition is filed, giving the presiding judge time to review the case.
The District of Maryland order is not unprecedented. Several appellate courts have similar standing orders. For example, the 4th U.S. Circuit Court of Appeals, whose jurisdiction includes the District of Maryland, issued an order in 2019 that automatically grants a 14-day pause in deportation cases when requested, allowing time for judicial review.
The administration’s lawsuit raises complex legal questions involving the president’s core constitutional powers to enforce immigration laws, courts’ jurisdiction over habeas petitions and the distinction between formal judicial rulemaking, which must follow a prescribed process, and informal case-management directives, which do not. These types of issues are routinely addressed as they arise in particular cases and resolved through the appellate process.
But here, the administration has taken the extraordinary step, apparently for the first time in our nation’s history, of pre-emptively suing all the judges responsible for implementing a ruling it claims is unlawful.
This lawsuit is not about immigration policy. It is a frontal assault on judicial authority, raising separation of powers principles that predate the ratification of the U.S. Constitution.
King James I, who ruled England from 1603 to 1625, believed that kings, as the makers of the law, were not bound by the laws they made. The Founding Fathers rejected that notion. They deliberately designed the judiciary as a third, co-equal branch of government empowered to determine the constitutionality of actions taken by the executive and legislative branches. As Alexander Hamilton wrote in Federalist No. 78: “The complete independence of the courts of justice is peculiarly essential … whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” This is not the first clash between the executive and judicial branches. From the landmark Marbury v. Madison case in 1803, which confirmed the courts’ inherent power to strike down unconstitutional laws, to FDR’s court-packing plan to the Watergate showdown over Nixon’s tapes, the judiciary has played a critical role in maintaining the constitutional balance. In each of those conflicts, the executive vigorously defended its policies, as the Trump administration has done. But the dispute was always about the constitutionality of the action, not the authority of the courts to rule on it. This lawsuit crosses that line, directly challenging judicial legitimacy. The lawsuit complains that courts are using their authority to “interfere with the prerogatives of the Executive Branch.” But that is exactly what courts are supposed to do when executive actions violate the Constitution. The lawsuit complains that courts are using their authority to “interfere with the prerogatives of the Executive Branch.” But that is exactly what courts are supposed to do when executive actions violate the Constitution. Portraying the judiciary as a mere obstacle to executive power reflects a fundamental misunderstanding of our system of government. Predictably, the suit argues that the court order is “undermining the democratic process” by “diminish[ing] the votes of citizens who elected” the president. While it is true that presidents are elected and federal judges are not, judges are appointed by an elected president and confirmed by an elected Senate to insulate them from political pressure and empower them to defend constitutional principles even in the face of political backlash. That insulation is not a flaw in our system to be exploited; it is one of our government’s greatest strengths. President Donald Trump has never hidden his admiration for autocrats. But this suit goes beyond denigrating judges, musing about being a dictator for a day or praising the idea of being president for life. It is a step toward making the president legally infallible — putting him above the law — and granting him unchecked power to violate the Constitution under the guise of enforcing immigration policy, protecting public safety or preserving national security. If successful, this theory would fracture the system of checks and balances and trigger a full-blown constitutional crisis. This attempted power grab should alarm anyone who values our constitutional framework. But somewhere, King James I presumably is smiling.
Andrew Warren
Andrew Warren is senior counsel at Democracy Defenders Action. He previously was a prosecutor with the U.S. Justice Department and the elected district attorney in Tampa, Florida. 
