The Great Writ

The steps taken by the Federal Courts in Maryland resulted in the unprecedented lawsuit filed against the entire Maryland Federal judiciary by the Trump administration in United States of America v. Russell, et. al. On August 26, the Fourth Circuit Court of Appeals threw out that lawsuit. The post below, published on May 23, describes the precipitating event.

On Wednesday, Chief Judge George L. Russell III of the United States District Court for the District of Maryland issued a “standing order” effectively enjoining the Government from deporting any individual who files a habeas corpus petition pursuant to 28 U.S.C. § 2241 for approximately 48 hours after filing. The media has described this order as “unprecedented,” and it represents a novel use of the All Writs Act and the inherent authority of federal courts to establish standing orders applicable to cases filed in their jurisdictions. It is worth examining the scope of the All Writs Act (28 U.S.C. § 1651) and its applicability in this case.

The All Writs Act permits federal courts to issue writs that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Three requirements must be satisfied under this statute. First, the court must possess an independent basis for jurisdiction in the case; the writ cannot itself create jurisdiction. By limiting the order to habeas petitions filed pursuant to § 2241, the Court has, by definition, met this requirement. Second, the order must be “agreeable to the usages and principles of law,” meaning it must not contradict existing statutes or rules. Section 2241 neither permits nor prohibits the deportation of a habeas petitioner within 48 hours of filing. The narrow scope of the order makes it unlikely to conflict with any broader statutes or rules governing the deportation of noncitizens. Those statutes generally do not reference the filing of habeas petitions or set timelines for deportation relative to such filings.

Third, the order must be “necessary or appropriate in aid of the court’s jurisdiction.” In an amicus brief filed in the recent Supreme Court case Shoop v. Twyford, the amici explained this requirement by stating that “[t]he All Writs Act applies as a grant of supplemental power where some particularized statute fails to address the problem.” The problem identified by Judge Russell is the risk that a habeas petitioner might be deported before the Court has had an opportunity to “determine the scope of its authority to grant the requested relief.” Such a writ, he reasoned, is necessary to “ensure Petitioners are able to participate in the adjudication of their requests for habeas relief, including participation in court proceedings and access to legal counsel; to ensure the Court is able to evaluate their respective claims for relief based on in-court testimony that may be offered; [and] to ensure the Government has a fulsome opportunity to brief and present arguments in its defense.” Whether a writ is “necessary or appropriate” is typically left to the “sound judgment” of the court. As the Supreme Court noted in Syngenta Crop Protection, Inc. v. Henson, “[the] Act empowers federal courts to fashion extraordinary remedies when the need arises.” It can certainly be argued that such injunctive relief is warranted here.

Practically speaking, this order provides attorneys filing habeas petitions in Maryland under these circumstances a short window of time to prepare a motion for a temporary restraining order prohibiting the deportation of the petitioner before it is too late. As recent cases have shown, once a petitioner leaves U.S. airspace they are not coming back. Currently, most cases involve the simultaneous filing of a habeas petition and a motion for a temporary restraining order. However, if multiple individual petitions are filed at once, it may be difficult for attorneys handling these matters to continue this practice. It remains to be seen whether this standing order will be challenged—or simply ignored.