Process Formalism In Texas But Not At SCOTUS
For much of the last five years, the fine federal judges of Texas were slandered and maligned. They were called rogue, partisan hacks. Egged on by pundits on social media, these judges were targeted for non-stop attacks. Their chambers were blitzed with calls. They received countless misconduct complaints. Billboards were plastered with their faces. They were subject to repeated death threats, which led to criminal indictments. This conduct was far worse than any pizzas delivered to judges. How did the federal judiciary respond to these actions? By trying to ram down an illegal rule to take away their cases. And the threats were met with silence.
The reality is very different. For sure, plaintiffs forum shopped, but the Biden Administration never argued that venue was improper. And when these judges issued national injunctions or vacaturs, they stayed their rulings to permit the government to take a timely appeal. The Fifth Circuit moved promptly, and decided cases on its emergency docket to permit a timely appeal to the Supreme Court. It is fair to criticize these rulings on their substance, but over the four years of the Biden Administration, I think Texas judges largely followed fair procedures.
The second Trump administration has brought on a different wave of problems. District judges have permitted suits against the federal government for damages that should clearly have been brought in the Court of Federal Claims. Habeas actions brought on the east coast should have clearly been brought in Texas where the prisoners were confined. Actions seeking reinstatement of federal employees should have clearly been brought in the MSPB and other civil service forums. Judges have certified class actions during ex parte TRO hearings without any regard for Rule 23. And so on.
At every instance, judges in these cases abandoned any pretense of process formalism. Even as they denied Trump the presumption of substantive regularity, courts themselves abandoned any preseumption of procedural regularity. Judge Boasberg is perhaps the most egregious repeat offender. On a Saturday afternoon hearing, he told the ACLU lawyers to restyle their habeas case as an APA case to avoid venue problems, and immediately certified a class, and ordered the executive branch to turn around planes. Even after the Supreme Court gave him an easy out by finding he lacked venue, he is still going down the road to appoint a truly independent special prosecutor who can assert absolute authority over the executive branch. Again, Boasberg may be right or wrong about the substance, but procedurally, he is way out of his lane. The D.C. Circuit administratively stayed Boasberg’s order by a 2-1 vote (Katsas and Rao, with Pillard dissenting). Let’s see if that holds up.
By any procedural measure, the judges of Texas have behaved far better than the judges on the Amtrak Corridor. This background brings me to the latest installment of the emergency docket, A.A.R.P. v. Trump.
Judge Hendrix cannot be faulted. He moved with remarkable dispatch on a compressed timeline with a very complex case. The ACLU only gave him forty-two minutes to rule, even as he promisd to rule by the following day. You mig
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