DOJ exploited the "administrative stay" regime that Justice Amy Coney Barrett set into overdrive last year in its effort to keep those sent to CECOT in limbo.
It seems like the odds of getting three R dominated panels in a row, on a 7-4 D court, should be infinitesimal. I’m getting very suspicious. We’ve had Rao Katsas Henderson (all R), R K Pillard (D) and now R K Walker (again all R). WTF???
I get that discussion, and we have it at length on Bluesky — so, trust me, I'm invested. That said, I'm moving on here to "They knew it was a three-R appointee month and acted accordingly."
I think in the past the Chief in the 5th Circuit was accused of manipulating the panels so as to get the majorities he wanted and a public accusation of that was made by one of the minority judges. It all got settled in the cloak room so to speak.
Maybe the whole "You've clearly violated the law multiple times...but before I punish those violations, I'm gonna count to 5 reeeaaaallly slooooooowwwwly" thing was a bad idea! The average citizen who causes this much harm to the people around them don't usually get such a chance to avoid consequences, neither should the DoJ attorneys.
Pardon my naivete, but what actually is the "force", if any, of the April 7 *JGG* decision, and its order to "facilitate", etc., etc.? I can understand the DOJ gaming it to the max, but at what point *must* the latter initiate proceedings for allowing due process for the CECOT prisoners? Surely, when this latest round of appeals has concluded?
First, DOJ is arguing that the April 7 order doesn't apply to the CECOT prisoners. Or, to be more precise, they are arguing that the U.S. no longer has custody of those people and the courts no longer have jurisdiction as to them.
Now, I think they are wrong on that front. The absurdity of that aside, though, the "force" of the April 7 ruling is — at the least — an obligation to provide for the ability of people to seek habeas relief before AEA-based removals. The government appears to be adhering to that going forward, albeit with disputes as to what process is due.
Remember further that the April 7 order did not resolve whether the AEA proclamation properly invoked the AEA. That challenge is part of the habeas actions that can be (and have been) brought since April 7.
Wretched wait for due process..imagine a country where everyone has equal justice
“Circuit panel is going to make those people wait yet longer still to get the process that the Supreme Court unanimously held on April 7 was due to anyone being removed under the AEA”
The “administrative stay” is a gimmick that allows the government to obtain a near permanent stay pending appeal without (1) having to seek a stay in the district and (2) meeting any of the established standards for obtaining a stay pending appeal, probability of success on the merits, balancing of the relative harms, abuse of discretion).
I think it's a little more nuanced than that — and as to 1, they generally do seek a stay in the district court and don't get it — but the rest is certainly a pretty good description of what happens when it is being abused.
I didn't put it in here — and maybe should have — but a key example of when administrative stays are good and necessary is when a person's execution is imminent and there is no stay of execution but there is an application for a stay of execution pending. In that situation, most states will wait on a court ruling to proceed despite there technically being no legal impediment to their carrying out the execution. But, if the state is unwilling to wait on a court ruling on a pending stay application, a Supreme Court justice — even conservative justices like Thomas who will later vote against the stay application — will issue an administrative stay while the court considers the application.
It seems like the odds of getting three R dominated panels in a row, on a 7-4 D court, should be infinitesimal. I’m getting very suspicious. We’ve had Rao Katsas Henderson (all R), R K Pillard (D) and now R K Walker (again all R). WTF???
I get that discussion, and we have it at length on Bluesky — so, trust me, I'm invested. That said, I'm moving on here to "They knew it was a three-R appointee month and acted accordingly."
I wondered the same thing. Aren't those panels memberships rotated?
I think in the past the Chief in the 5th Circuit was accused of manipulating the panels so as to get the majorities he wanted and a public accusation of that was made by one of the minority judges. It all got settled in the cloak room so to speak.
There was also an accusation that a particular CA9 judge kept turning up on abortion cases. It was debunked.
Maybe the whole "You've clearly violated the law multiple times...but before I punish those violations, I'm gonna count to 5 reeeaaaallly slooooooowwwwly" thing was a bad idea! The average citizen who causes this much harm to the people around them don't usually get such a chance to avoid consequences, neither should the DoJ attorneys.
Trump's 4-8 years in office are going to taint the courts for decades.
Well that is unsettling.
Pardon my naivete, but what actually is the "force", if any, of the April 7 *JGG* decision, and its order to "facilitate", etc., etc.? I can understand the DOJ gaming it to the max, but at what point *must* the latter initiate proceedings for allowing due process for the CECOT prisoners? Surely, when this latest round of appeals has concluded?
First, DOJ is arguing that the April 7 order doesn't apply to the CECOT prisoners. Or, to be more precise, they are arguing that the U.S. no longer has custody of those people and the courts no longer have jurisdiction as to them.
Now, I think they are wrong on that front. The absurdity of that aside, though, the "force" of the April 7 ruling is — at the least — an obligation to provide for the ability of people to seek habeas relief before AEA-based removals. The government appears to be adhering to that going forward, albeit with disputes as to what process is due.
Remember further that the April 7 order did not resolve whether the AEA proclamation properly invoked the AEA. That challenge is part of the habeas actions that can be (and have been) brought since April 7.
Good question and I pray Chris responds.
Wretched wait for due process..imagine a country where everyone has equal justice
“Circuit panel is going to make those people wait yet longer still to get the process that the Supreme Court unanimously held on April 7 was due to anyone being removed under the AEA”
Fabian tactics in the courts. Trump is a master at that. I wonder if ACB regrets her comment
The “administrative stay” is a gimmick that allows the government to obtain a near permanent stay pending appeal without (1) having to seek a stay in the district and (2) meeting any of the established standards for obtaining a stay pending appeal, probability of success on the merits, balancing of the relative harms, abuse of discretion).
I think it's a little more nuanced than that — and as to 1, they generally do seek a stay in the district court and don't get it — but the rest is certainly a pretty good description of what happens when it is being abused.
I didn't put it in here — and maybe should have — but a key example of when administrative stays are good and necessary is when a person's execution is imminent and there is no stay of execution but there is an application for a stay of execution pending. In that situation, most states will wait on a court ruling to proceed despite there technically being no legal impediment to their carrying out the execution. But, if the state is unwilling to wait on a court ruling on a pending stay application, a Supreme Court justice — even conservative justices like Thomas who will later vote against the stay application — will issue an administrative stay while the court considers the application.
This is terrifying.
I am going to have to read this again in the morning.