52 Orders And Counting

District of New Jersey Judge Michael E. Farbiarz directed the government to do something novel: Provide a list of every court order in the district since December 5th the government violated. The very notion of this would have been unimaginable, if not unappreciated, a year ago. But here we are.

In a response last week, Jordan Fox, the chief of staff to the deputy attorney general, filed an 11-page declaration describing 52 separate violations across 547 cases, describing them as accidental.

She wrote that detainees were transferred 17 times despite court orders prohibiting them from being moved. The moves took place “inadvertently due to logistical delays,” she wrote.

To be clear, had any party other than the government violated a court order, there would be hell to pay. From sanctions to contempt, with a heaping side of discipline or disbarment, there would be consequences.

But it was “inadvertent”? Why no, that’s not an option. When a court orders you to do something, you do it. It’s not a request. It’s an order. It’s not something you do unless you made an oopsie. It is your duty to comply with the order. You don’t get to make a mistake, assuming it was a mistake.

In the case of the government here, the likelihood of ignoring orders inadvertently is slim to none. It’s not that one hand might not know what the other hand is doing. No doubt that happens with some regularity, particularly with a government in disarray and lacking the personnel that knows how to do its job rather than knows how to bend the knee. But that too isn’t inadvertence. It’s making a choice not to effectuate orders because they aren’t important enough to take precedence over whatever else the administration demands.

Judges have repeatedly charged, however, that the administration hasn’t taken court orders seriously since the first weeks of President Trump’s second term. A recent flood of challenges to Mr. Trump’s effort to detain immigrants who entered the country illegally years ago has tested the courts’ capacity, the Justice Department’s bandwidth — and the administration’s respect for the judicial branch.

When court orders aren’t considered a priority, particularly over the need to rid the country of bodies as quickly and painfully as possible, the cracks into which the orders fall exist because the orders are deemed too insignificant to fill the cracks. But that doesn’t make noncompliance inadvertent. It’s simply a cost of doing business.

So the government, by its own admission, failed to comply with the orders of the court. You’ll never guess what consequences the government suffered as a result of its failure.

Ms. Fox’s recent filing wasn’t enough to fully satisfy Judge Farbiarz, who on Tuesday responded with an order praising Ms. Fox for being “careful” and thorough” but finding that the government’s compliance “falls below the relevant standards.”

“Judicial orders should never be violated,” he wrote. “And they very rarely are, especially not by government officials.” He gave the government until next Wednesday to detail what it was doing “to ensure 100 percent compliance.”

He proposed that the government commit to stop transferring any detainee who had filed a habeas petition, instead of waiting for a judge to rule.

And if they do it again, Judge Farbiarz will write another sternly worded decision ordering the government to come up with a way to “ensure 100 percent compliance.”

No doubt the courts are extremely reluctant to up the ante by imposing sanctions or holding someone in contempt. thus raising the stakes to facial refusal to comply with a court order. Any sanction will almost certainly be appealed and, given the reluctance of circuit courts to take a stand against the administration only to find itself hung out to dry by the Supremes, there is a strong possibility that any effort to enforce an order will end badly.

Or as President Jackson is believed to have muttered about Chief Justice John Marshall, “now let him enforce it.”

But one thing is certain. If there are no consequences for the government ignoring court orders, whether deliberately or inadvertently, there is no incentive beyond good faith to do as the judicial branch of government directs. While there are many things to be said about the Trump administration, having an abundance of good faith toward the judicial branch is not one of them.


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5 thoughts on “52 Orders And Counting

  1. Hal

    Per Fox, “A federal judge in Colorado has questioned whether the Trump administration is complying with his order barring warrantless ICE arrests in the state, according to Colorado Public Radio.

    Senior U.S. District Judge R. Brooke Jackson, who was appointed by former President Barack Obama, said during a hearing Wednesday that the Department of Justice appeared to be falling short of his November injunction requiring flight-risk assessments and warrants before detaining people, CPR News reported.

    “These things shouldn’t be that difficult… The policy of ICE was a good policy and all they have to do is comply with their own policies, and we’re good,” he added. “But, for whatever reason, they insisted on not agreeing to that … and here we are sitting here today. I don’t get that.”

    Is there a reason a judge can’t find the attorneys representing ICE in contempt?

    Like Napoleon hanging an admiral, “Pour encourager les sutres”, I think this would have a salubrious effect.

    1. Oregon Lawhobbit

      Because the attorneys are representing a client? Now … finding that CLIENT in contempt, that’s a whole different ball of wax.

      Client control and management during trial can get … interestingly spicy.

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