Apr.01

electoral-vote.com

Dem 47

   

GOP 53

Will the Shadow Docket Be Used for Shady Things?

As Donald Trump has ramped up his rule by executive order, the laws and the Constitution be damned, the courts have proven to be a rather large wrench in the works. Enter the shadow docket. Trump made liberal use (no pun intended) of this party trick in his first term and now he's just gone hog-wild as the lower courts continue to enjoin his illegal actions and the federal appellate courts are mostly ignoring his entreaties. Following is a summary of his efforts to get SCOTUS to stop those big meanies from making him follow the law—it's not fair!

1. Trump v. J.G.G.: Trump has filed an application for an emergency stay of a district court's injunction against Trump's invocation of the Alien and Enemies Act to unilaterally designate and deport, without due process, people it says are undocumented and members of a Venezuelan gang. Trump is arguing to the Supreme Court that he alone decides whether the U.S. is at war, a prerequisite to invoking the Act, and, likewise, whether anyone in the U.S. is a threat to national security. The administration is also arguing that the plaintiffs should have filed habeas corpus petitions in Texas where they were/are being held.
   
   A 3-judge panel on the D.C. Circuit Court of Appeals rejected those arguments by a 2-1 vote. Chief Justice John Roberts gave the plaintiffs until April 1 to submit a brief in opposition. The temporary restraining order (TRO) applies to anyone subject to Trump's order, including the more than 200 people removed to El Salvador on midnight flights. Meanwhile, the Department of Justice has invoked the state-secrets privilege in response to Judge James Boasberg's order for details about the commercial flights (details revealed publicly by Secretary of State Marco Rubio) and whether the government violated the TRO in continuing the flights to El Salvador. AG Pam Bondi has argued the privilege applies despite arguing in a different case, in front of the same judge, that texting detailed attack plans does not involve state secrets.
   
   
2. Birthright Citizenship: Trump has attempted, via XO, to end the Fourteenth Amendment's guarantee of citizenship to anyone born in the U.S. Three different district courts said, "Uh, no," and enjoined the XO. Trump applied for an emergency stay arguing, among other things, that the nationwide injunction issued by Judge Leo T. Sorokin in Massachusetts "compromise[s] the Executive Branch's [sic] ability to carry out its functions." The Ninth, Fourth and First Circuit Courts of Appeal denied Trump's requests for a stay of the lower courts' orders.
   
   
3. Mass Firings of Probationary Federal Workers: On March 14, District Judge William Alsup issued a preliminary injunction ordering Trump to immediately reinstate more than 16,000 probationary workers summarily fired in February. The order is directed at the Departments of Veterans Affairs, Agriculture, Defense, Energy, Interior and Treasury. The case was brought by nonprofit groups whose members are impacted by the reduced services that result from the mass firings. Alsup found that the Office of Personnel Management, which directed the firings, has no authority to hire and fire employees at another agency. The Ninth Circuit then denied Trump's request for an administrative stay and has not yet ruled on its request for an emergency stay. On March 24, Trump went to SCOTUS for both. The Supremes have called for a response to Trump's requests by noon on April 3. In another case involving probationary employees, on March 26, District Judge Bredar in Maryland extended a temporary restraining order, which requires the reinstatement of 24,000 probationary employees, finding the administration did not follow the laws for mass layoffs and reductions-in-force in terminating the employees. The Fourth Circuit Court of Appeals denied Trump's request for an administrative stay, but so far they have not added this case to their growing list of SCOTUS petitions for an emergency or administrative stay.
   
   
4. Cuts to Funds for Teacher Training: A district court judge out of Boston granted a TRO requiring the Department of Education to restore grants to two programs for teacher recruitment, training and professional development. The DOE abruptly canceled the programs after finding some materials related to—say it with us—the boogeyman du jour, "DEI" (pause for collective gasp). The Court limited the order to those eight states who had brought the case, California, Massachusetts, New Jersey, Colorado, Illinois, Maryland, New York, and Wisconsin. The federal appeals court denied Trump's request for a stay pending appeal, so on Friday the administration went whining to SCOTUS... er, petitioned the Court for an emergency stay. The Court has yet to respond to this latest appeal.

To put some of this into context, in the 16 years of the Barack Obama and George W. Bush administrations, they asked for emergency relief from SCOTUS only eight times.

But Trump has increasingly relied on the so-called shadow docket because it short-circuits the normal processing time, keeps opponents on their heels, and allows for some shenanigans at the high court that wouldn't pass muster if the case proceeded in the regular course of business. The Court is supposed to intervene at such an early stage of a case only on the very rarest of occasions, and only when the stakes are so high that failing to step in could lead to catastrophic results. But Trump has learned that this Court will be only too happy to accommodate his requests when it suits their own political agenda, and he had a pretty good track record in his first term. He filed 41 emergency appeals in his first term and won all or part of them 28 times, so why wouldn't he routinely file such appeals and clog the system to his heart's content? Only the Court can put a stop to this kind of abuse of process, but it's anyone's guess how far they'll let Trump go in his second term. We'll know soon enough, though. (L)