The Mechanics of Irreparable Harm

A judge signs an order granting a temporary restraining order against governmental action, plus some other things like granting access to lawyers, and BOOM, the magic happens, right? Well, as the roll-out weekend of Trump’s Executive Order banning immigrants and visa holders from seven countries shows, not so much. And that’s causing no end of screams for impeachment.

What lawyers pondered, watching this happen, was why there was no enforcement action sought. Where was the application for sanctions, contempt? Where was the order directing the United States Marshals service to escort lawyers into the holding area to confer with those being detained?

Government doesn’t just happen, much as people imagine it does. It’s a bureaucracy, and like all bureaucracies, it’s run by grocery clerks with lists. At Politico, Josh Gerstein, perhaps inadvertently, makes this plain.

The CBP officers at airports were not rogue individual actors, according to the documents obtained and people interviewed by POLITICO. Rather, the agents on the ground were following orders from high in their chain of command.

“Since the court orders related to the executive order were issued over the weekend, CBP immediately began taking immediately began taking steps to be in compliance,” Homeland Security Secretary John Kelly said in a Tuesday press conference. “We are and will remain in compliance with judicial orders.”

Acting CBP Commissioner Kevin McAleenan said at the press conference that his agency is “responding immediately to any court orders.”

See? They were “responding immediately.” We know, because they say so. Bear in mind before everybody gets crazy that these aren’t officials handpicked by Trump from the ranks of the alt-right to thwart your rights and ruin your world. These are the same people at CBP who were there a month ago, a year ago. Even Trump’s Homeland Security Secretary, John Kelly, who was a Marine General with 40 years of service, wasn’t plucked from the bowels of Breitbart.

So how could this go so wrong, since the boots on the ground announced that the CBP was not giving them access?

Soon after Judge Brinkema issued her temporary restraining order around 9:30 p.m. last Saturday, lawyers at Dulles brandished copies of the order to demand entry to the secure area where CBP was questioning immigrants, including green card holders. The lawyers at the scene established whom CBP was holding by talking to family members waiting for them.

They had the order, “brandished” it, and . . . were ignored. Consider how this works. Who is this person claiming to be a lawyer? It’s not like the old days, before lawyers had identification cards to prove their guild membership, but it’s also not like it’s part of a CBP agent’s duties to ascertain who is really a lawyer.

And what of this order? Is it real? Did someone type it up in their basement, forge a judge’s name to it, and, poof, magically create a right? It’s not part of a CBP agent’s duties to ascertain whether an order is legit or not.

And what does this order mean? Judge Brinkema’s order provided:

Respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.

Seems clear enough, but nothing in government is as clear as one would assume.

In court papers Thursday, the Justice Department said no green card holders were deported or forced to withdraw after Brinkema’s order. The government lawyers argued her order did not specify physical access rather than phone calls and it would be unsafe to let the lawyers meet travelers in person.

At Friday’s hearing, Justice Department lawyer Erez Reuveni said travelers don’t have a right to an attorney while they’re being screened, and the government would object to any order sending lawyers into that area.

There’s a bunch of weirdness built into the response, some of which is caused by the nature of the system, other by the government’s reaction to it. People detained by CBP in airports are in secure areas, a netherworld of being physically on United States soil while legally not in the United States. It’s one of those law things.

And while Judge Brinkema’s order expressly provides that lawyers be given access, it doesn’t say how. One might well argue the spirit of the order is clear as can be, but this is government which can obfuscate anything. And this didn’t start January 20th, for those of you inclined to leap to the obvious and obviously wrong conclusion.

Then there were the legislators, who rushed to airports to get their pictures taken with the virtue twitterers to show how much they care.

When an aide to Booker asked, through an airport police officer, to speak to the CBP shift commander, the commander declined, saying he only took orders from his superior.

Booker himself came to the airport close to midnight and asked to speak to CBP officials. An airport police officer prevented him from entering CBP’s area but agreed to pass notes back and forth. The CBP accepted a paper copy of Brinkema’s order and assured Booker the people who were being questioned would be released.

But Cory Booker is a United States Senator. And there were others, many others, in Congress who went to airports to demand something. How can that be? While senators and representatives are critical players in the scheme of American government, they do not get to give orders to executive branch personnel. They get to enact laws. They get to hold congressional hearings. They do not get access to secure areas at airports. And they know this. Their appearance in support of the detained may be laudable, even if a bit of silly grandstanding, but still.

When you add up the million things people demand government should do, all the laws, rules, regulations that apply to you, and everyone you like and don’t, and consider how the mechanics of all of this works, you realize how we’ve created the Rube Goldberg machine that is simultaneously so difficult to maneuver, so easily abused, so unnecessarily complicated and yet never complicated enough to meet everyone’s demands that government fix everything.

Lawyers are now, finally, in court trying to make the mechanics crafted on the fly happen. Sitting all night in an airport eating donated pizza, or wearing an ACLU Legal Observer vest, doesn’t give you special authority to make the CBP any more compliant, or less of a bureaucracy, then it was a month ago, when it was abusing people trying to enter the country.

Should the United States government, or some subdivision, or the president, be held in contempt and sanctioned for its failure to abide an order, we may yet have a constitutional crisis on our hands. But it is never quite as simple as it seems, and it’s rarely as clear as the crap dished out in the media to inflame your anger.

This government machine was not invented overnight, and now we’re dealing with the monster we so dearly demanded. Pogo was right.

16 thoughts on “The Mechanics of Irreparable Harm

  1. Allen

    Goldberg built the hardware and Murphy wrote the software. People seem to assume that government employees should just use common sense and not follow legal directives, no matter how asinine they may be. That’s a good way to end up selling pencils on the street corner to try and feed your family.

    1. SHG Post author

      When people have a beef with something, they demand law and rules. When they have a beef the other way, they decry law and rules. And everyone wonders how it got so screwed up.

  2. B. McLeod

    Whenever you need to serve an order on any business or governmental entity, you just “brandish” it at whatever front desk staffers you can find, right? Maybe this comes with ACLU having to take so many of its volunteers from BigLaw.

      1. JimEd

        Tell me you don’t brandish your leather briefcase and outdated suit as you approach that table thing.

      2. B. McLeod

        The feds could have simplified this by having the lawyers fill out a check box form disclosing whether they were actually there to assist a client, or to only get on television to prop up their “activist” credentials. Then they could have routed most of the herd to a special media area for order brandishing, and helped the two or three other guys set up teleconferences with their clients.

        1. SHG Post author

          It remains unclear to me what representation the lawyers had to offer at the airport. I’m not an immigration lawyer, and can’t say, but beyond advising them not to sign an I-107, it’s unclear what more they could have done at that stage. Other than bask in the adulation of others for being there.

  3. Nemo

    Perhaps I’m reading-impaired today, but WRT “This government machine was invented overnight”, don’t you mean “was not created overnight”?

    If I’m wrong, would you be so kind as to inform me of the date of the night in question? Somehow I have the suspicion that a google search involving everything with the government going to hell overnight would be long on claims, but short on definitive answers. 😉

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