Rules for thee but not for me?

“We seem to have forgotten that this is a district court—not a Denny’s.”

Judge James C. Ho of the 5^th Circuit Court of Appeals made that pithy observation after the Supreme Court remanded the case of A.A.R.P., et al, vs Donald J Trump, et al to his court for further proceedings. At one level, the issue they are to decide is what process is due several hundred Venezuelans held in an ICE detention facility in Texas.

Amid the arguments about whether we are in a Constitutional crisis, all of the attention so far has focused on President Trump’s actions. The progressive left claims he created the crisis by issuing plainly unconstitutional Executive Orders or he seemingly equivocates when asked if he is bound by the Constitution. Each of these claims, of course, blithely ignore the court rulings that uphold part or all of his orders, his apparent acquiescence in the adverse rulings or issues as fundamental and Constitutional as the separation of powers.

Oddly, we heard nary a peep from the left when President Biden explicitly ignored the Supreme Court’s ruling that he lacked authority to change the terms of student loans.

There is a more direct and easily understood source of Constitutional stress. The context arises in the now fraught realm of immigration.

There is no legitimate dispute that the Biden administration ignored the Southern Border to enable the inflow of over 10 million immigrants and released them in all corners of the country sometimes in the dark of the middle of the night, all in violation of US law. I practiced in the immigration court before I retired, and the law requires immigrants be detained until a judge rules on the application for asylum. To begin to undo the damage done, the Trump administration has undertaken several approaches.

In one case, Trump declared that elements of the government of Venezuela have undertaken to invade the US. He invoked a 1789 law known as the Alien Enemies Act, and he declared a Venezuelan gang known as Tren de Aragua are a foreign terrorist organization. Its members have entered the US illegally, and the Act allows the deportation of invaders.

At 12:48 am on Good Friday, lawyers for the Venezuelans held in Texas filed pleadings asking for immediate relief to stop Trump from flying their clients out of the country. Did you catch that timing? They filed their claim just after midnight, when it is likely the court and its clerks would be fast asleep. When I still practiced law, we called that sharp practice: lawful, but calculated to catch the other side off guard.

Parties are able to file pleadings at that hour because in Federal Court all pleadings are filed electronically.

According to Judge Ho, the same lawyers had filed a similar case, and they knew this judge would ask the government to respond and file a response within 24 hours. I practiced in Federal Court for 40 years and every judge I’ve encountered would ask for at least as much; it is essential due process that the defendant has a right to respond and a reasonable time to submit the response.

According to Judge Ho, the trial judge told them he planned to rule by noon Saturday after receiving a government response. But at 12:48 p.m. that Friday the Venezuelans’ lawyers “suddenly informed the court that they would file an appeal if the District Court did not act within 42 minutes.” I’d like to know what the judge said when the lawyers issued that demand on him. When the trial court did not meet that deadline, the lawyers filed a Notice of Appeal to the Fifth Circuit.

As an aside, why are these lawyers still admitted to practice in these courts?

The trial court had not ruled on the application for emergency relief and when the lawyers filed the notice of appeal, the Federal Rules of Appellate Procedure say the trial court loses its jurisdiction over the case. And because there was no ruling on the application for emergency relief, the court of appeals where Judge Ho sits denied the appeal the night it was filed for lack of jurisdiction because the rules bar an appeal where there is no ruling to appeal. That makes sense to me.

Undeterred by these details, the lawyers filed an appeal to the Supreme Court. Similarly undeterred, the Supreme Court granted the appeal and reversed over the dissent of Justices Alito and Thomas who complained in part about the lack of jurisdiction and due process. Such sticklers for detail, they.

Judge Ho’s complaint that the Supreme Court saw no problem in requiring a local court to be prepared to rule on a case filed in the middle of the night and before the defendants had a chance to submit a response, i.e. to be heard, because the courts are not – like Dennys – open for business all night is well founded.

We were taught in our first-year civil procedure class in law school that due process includes, at least, notice of the claim, a reasonable opportunity to submit a response, i.e. to be heard, and basic compliance with the rules of procedure, all of which make us a nation of laws and not men. Due process; the Constitutional order requires no less.

The Supreme Court created a Constitutional crisis by disregarding these basic rules of due process. Is it rules for thee but not for me? And there is no end to the irony of doing so while demanding Trump accord due process to those members of a foreign terrorist organization who entered the US illegally and have no business being here.