Trump-appointed judges are letting his immigration enforcement blitz continue
By Devan Cole, CNN
(CNN) — As President Donald Trump’s immigration crackdown has whisked through major US cities, trial-level judges attempting to restrain the frenzied actions of federal agents have been repeatedly slapped down by higher courts – sometimes with the help of judges the president put on the bench in his first term.
A series of rulings from the Supreme Court and federal appeals courts have overturned early victories secured by opponents of Trump’s immigration blitzes in California, Chicago and Minnesota.
The administration’s latest win came Monday, when a three-judge federal appeals court panel indefinitely paused a Minneapolis judge’s decision to put tight guardrails on how agents can respond to individuals peacefully protesting Operation Metro Surge, which has sparked intense opposition in the Twin Cities and led to the fatal shooting of two US citizens by federal officers.
The preliminary injunction issued earlier this month by US District Judge Katherine Menendez, the 8th US Circuit Court of Appeals concluded, was overbroad and vague and thus could not remain in effect for now. The two judges that voted to fully grant the administration’s request to shelve Menendez’s ruling were Trump-appointee David Stras and Bobby Shepherd, who was appointed by former President George W. Bush.
Trump and his allies have long complained that lower court judges have acted out of bounds in cases challenging his agenda, particularly in the immigration context, over which they argue he has broad, unreviewable authority.
Seizing on the appeals court ruling Monday, Attorney General Pam Bondi attacked Menendez, an appointee of former President Joe Biden, as a “liberal” judge who “tried to handcuff our federal law enforcement officers, restrict their actions, and put their safety at risk when responding to violent agitators.”
“The 8th Circuit has fully agreed that this reckless attempt to undermine law enforcement cannot stand,” she said.
(The third judge on the panel, Bush-appointee Raymond Gruender, partially dissented, saying he would have kept intact part of Menendez’s ruling that barred federal agents from using pepper spray and other non-lethal munitions against peaceful protesters.)
The appellate court rulings reflect a basic legal reality: Losers can quickly become winners – if even in the short-term – as cases are reviewed by higher courts. But they also underscore the tricky position federal judges sifting through a variety of challenges to Trump’s aggressive immigration enforcement efforts have found themselves in.
“District judges, both historically and just by practice, tend to be much more practical and functional in how they approach legal questions. A district judge thinks of him or herself oftentimes as a problem-solver,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
“Circuit judges tend to be more removed from the ground and more removed from the urgency of a situation and really approach these cases more as legal abstractions in a context in which there aren’t really clear precedent because most of what the federal government’s doing is so unprecedented,” he added.
Trump’s imprint on the federal judiciary during his first term is also part of the equation. With the help of a GOP-controlled Senate, the president several years ago was able to appoint scores of conservative judges to the nation’s appeals courts – a key priority for former Senate Majority Leader Mitch McConnell, who noted in an interview last year the “lasting impact” the slew of appointments would have on the country.
“The 8th Circuit is a deeply right-leaning – if not right-fixed – appellate court that is full of judges who are both appointed by President Trump and probably sympathetic to a lot of what he’s doing,” Vladeck said.
Staying in their lane?
With its five Trump appointees, the Chicago-based 7th US Circuit Court of Appeals has taken a similar approach to the 8th.
The court twice intervened on the administration’s behalf last year after a judge tried to curtail the actions of immigration agents in the Windy City and closely monitor compliance of an earlier order that limited the use of force against journalists and protesters.
An emergency order issued in early October by US District Judge Sara Ellis, an appointee of former President Barack Obama, came as confrontations between local protesters and agents who had descended on the city resulted in dramatic episodes involving tear gas and pepper balls. Ellis said agents could not use such non-lethal projectiles and chemical irritants, or force “such as pulling or shoving a person to the ground, tackling, or body slamming an individual.”
Amid reports by the protesters, journalists and clergy who brought the case that Ellis’ order was being violated, the judge later ordered Greg Bovino, a top Border Patrol chief who was at the time overseeing the enforcement operation in Chicago, to appear before her daily so she can receive updates on how his agents were complying with it.
“I know my lane and I will stay in my lane,” Ellis said last year. “I’m not going to tie the agents’ hands because I’m not out there and that’s not my job. But I am going to expect that they know and understand their responsibilities on the use of force.”
But days later, following a swift appeal by the administration, the 7th Circuit determined Ellis had indeed stepped out of her lane.
The appeals court wiped away Ellis’ order requiring Bovino’s daily check-ins, concluding that it wrongly set the district court up as “a supervisor of Chief Bovino’s activities, intruding into personnel management decisions of the Executive Branch.”
“The order infringes on the separation of powers,” the appeals court said in the brief, unsigned ruling.
Weeks later, after Ellis issued a more durable ruling restricting the activity of federal agents in Chicago, the appeals court again sided with the administration, ruling that her preliminary injunction swept up too many defendants, was “too prescriptive” and infringed too much on Executive Branch prerogatives.
“For example, it enumerates and proscribes the use of scores of riot control weapons and other devices in a way that resembles a federal regulation,” the panel, comprised of Trump-appointees Michael Brennan and Michael Scudder, and Ronald Reagan-nominee Frank Easterbrook, concluded.
At the Supreme Court
In what was perhaps the most high-profile district court reversal, the Supreme Court, without offering any explanation for its decision, in September lifted a California judge’s order that limited federal agents’ ability to make immigration stops based largely on a person’s apparent ethnicity, language or their presence at a particular location, such as a farm or bus stop.
Trump helped cement a conservative super-majority on the high court during his first term with the appointment of three justices. One of them, Brett Kavanaugh, wrote a lengthy concurrence in the California case to explain that the factors the agents were leaning on for stops “taken together can constitute at least reasonable suspicion of illegal presence in the United States.”
“If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter,” Kavanaugh wrote.
That September decision, which came over the public dissent of the court’s three liberal justices, effectively blessed what critics describe as “roving patrols” and gave the administration a major win as it sought to continue an aggressive immigration enforcement operation in the Golden State.
“This is a win for the safety of Californians and the rule of law,” Department of Homeland Security spokesperson Tricia McLaughlin said at the time. “DHS law enforcement will not be slowed down and will continue to arrest and remove the murderers, rapists, gang members, and other criminal illegal aliens.”
As Trump’s operation in Minnesota continues, such potential higher court reversals are looming large over Menendez, who is considering a joint request from the state and the Twin Cities to end Operation Metro Surge, which they claim is unconstitutional.
Menendez appeared wary earlier this week of overstepping her authority in the matter, noting during a critical hearing that “not all crises have a fix from a district court.”
“It must be that work is being done elsewhere to try to bring an end to what’s described here, not just counting on a single district court issuing a single injunction, which would inevitably and very quickly go to the Eighth Circuit,” she said.
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