A new ruling on the Alien Enemies Act provides a snapshot of the “presumption of regularity” that previous administrations have enjoyed.
https://www.msnbc.com/deadline-white-house/deadline-legal-blog/trump-justice-department-lost-benefit-doubt-judges-rcna228763
The “presumption of regularity” is a boring-sounding but important phrase in the law. It signals the deference that courts have historically given the government. One of the Trump Justice Department’s latest legal losses highlights how his DOJ has lost that good faith from the judiciary — or some of the judiciary, anyway.
The latest defeat came late Tuesday from a divided panel of judges on the U.S. Court of Appeals for the 5th Circuit. The topic was the Alien Enemies Act, the 18th-century law that President Donald Trump invoked to deport alleged Venezuelan gang members. The panel majority granted a preliminary injunction against the administration’s use of the law for deportations in Northern Texas......
In granting the injunction Tuesday, the 5th Circuit majority had to analyze the likelihood that the plaintiffs would suffer irreparable harm without preliminary legal relief. Siding with the plaintiffs, the majority cited (among other things) previous litigation at the Supreme Court where the justices sided with plaintiffs despite the government’s assurances. The two judges in the majority on the 5th Circuit panel were George W. Bush appointee Leslie Southwick and Joe Biden appointee Irma Ramirez.
In a lengthy dissent, Trump appointee Andrew Oldham was bothered by (among other things) the majority refusing to give greater deference to the government. More dramatically, Oldham accused the majority of suggesting that DOJ lawyers are lying. “If they are, I suppose they should be sanctioned. But it is astounding to say that lawyers from the United States Department of Justice are lying,” wrote the judge, who’s a contender for any Supreme Court vacancy that emerges under Trump......
Oldham’s complaint calls to mind Supreme Court Justice Ketanji Brown Jackson’s recent complaint that her colleagues invariably find a way to side with the administration, lamenting that the high court is playing a version of “Calvinball” in which “this Administration always wins.”
If this latest Alien Enemies Act litigation makes it to the justices, it can provide the latest test of whether Oldham’s or Jackson’s views are vindicated.
This is a decision from the 5th Circuit which surprised me. If the trump administration loses the presumption of regularity, then you will see more decisions like this
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