If President Trump needed an ulterior motive to keep his partial government shutdown alive for the foreseeable future, this is it. Since the shutdown began, Trump has argued that federal courts should not be exempt – which means the many legal challenges to Trump administration policies should be frozen for the time being.
But according to Bloomberg, federal judges are pushing back, arguing that some of the court challenges involve issues of public safety – or are otherwise finding excuses to keep the challenges moving forward in spite of the administration’s wishes.
In one case, a district judge is refusing the administration’s request to delay briefings in a challenge to Trump’s new asylum policy, which requires asylum applicants to present themselves at legal points of entry to have their claims heard.
“Government functions may continue” when they relate to “the safety of human life or the protection of property,” Moss wrote Thursday. The judge cited a government report indicating that a large proportion of the federal government’s immigration employees, including 91 percent of Customs and Border Protection workers, should continue working during shutdowns.
The government is also pushing to move ahead with a case filed in San Diego challenging its family separation policy.
“Although we greatly regret any disruption caused to the court and the other litigants, the government hereby moves for a stay of all deadlines” until funding resumes, the U.S. said in a typical request filed Dec. 26 in a suit in San Diego challenging the administration’s family separation policy.
A federal case involving the implementation of a federal monitor for the Baltimore Police Department is also moving ahead despite the adminstration’s attempt to shut it down.
But a high-profile Maryland lawsuit involving the implementation of a consent decree for civilian oversight of the Baltimore Police Department won’t stop. Chief U.S. District Judge James Bredar in Baltimore called the shutdown a “dispute internal to one party” and directed Justice Department attorneys “to find the means by which to continue their participation in this litigation on a timely basis regardless of their client’s internal issues.”
“Deeply serious matters involving the safety and well-being of the citizens of Baltimore are at issue in this case, and the court is determined that implementation of the previously entered consent decree will not be impaired or delayed by this sort of collateral issue,” Bredar wrote in a Dec. 26 order.
The administration had better luck in Washington and San Francisco. In SF, the administration’s appeal of a decision throwing out its asylum restrictions along the Mexican border will move ahead.
The government had better luck in Washington before U.S. District Judge Emmet Sullivan, who granted a request to put a case on hold in a two-sentence ruling on Dec. 26. The judge directed the Justice Department to notify the court “when appropriations are restored or if a continuing resolution is enacted.”
The U.S. is pressing ahead in at least one instance. The Trump administration on Dec. 26 filed a notice in an appeals court in San Francisco that it will seek to reverse a judge’s order blocking it from implementing asylum restrictions on the Mexico border.
State AGs are also pushing for a challenge to an administration policy that they say would undermine (recently gutted) ObamaCare (though appeals to a Texas judge’s ruling will need to wait).
A coalition of a dozen state attorneys general also opposed a government request to delay a Jan. 2 deadline for a crucial joint filing in an Obamacare-related lawsuit. The attorneys general challenged a Trump administration plan that would allow small businesses to join together to offer cheaper health-insurance plans — a move the states say undermines some of the protections required under Obamacare.
The states said there’s a “reasonable likelihood” that the “protection of property would be compromised” as a result of the financial harm the new rule will cause to their group and individual health insurance markets.
“Indeed, that disruption was both the anticipated and the intended purpose of defendants’ rule-making,” the states said. The Department of Labor, the defendant, “should not be delayed in moving forward with their litigation of this critical case,” they said.
Unfortunately for Trump, the DOJ has already declared that the shutdown won’t delay the Mueller probe.
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