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  • Reckoning the legal and practical significance of the United States deportations case 25th March 2025
  • Making sense of the Trump-Roberts exchange about impeachment 19th March 2025
  • Understanding what went on in court yesterday in the US deportations case 18th March 2025
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  • COMING UP 23rd September 2023
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Understanding what went on in court yesterday in the US deportations case

18th March 2025

And how government lawyers found out one cannot play “Oopsie” with Equity.

*

On the face of it, the lawyers for the United States federal government in the deportations case had an uncomfortable time in court yesterday.

(Legal commentators following the hearing.)

*

Indeed, it seemed that the government lawyers were desperate for the hearing not go ahead. They applied for the hearing to be vacated, but that motion was denied. They even made an urgent appeal for the judge to be removed from the case, an hour so before the hearing, an appeal which was not met before the hearing.

And at the hearing itself, the government’s lawyers seemed ill-prepared and ill-informed.

In a way, and as someone pointed out on social media, this was odd.

The political-media build-up to the hearing suggested that there was going to be some grand confrontation between a robust government and the activist and/or obstructive courts: a clash of arms.

But what happened did not indicate the government lawyers had any confidence in their case: it was a whimper, and not a bang.

If so, what can explain this?

*

The starting point is to understand what the hearing and the case generally is about – and what is currently at stake.

The United States government wanted to deport foreign nationals to a third party state.

The (supposed) legal basis for this is this proclamation (no less) of 15th March 2025 from the President of the United States, which in turn cites the Alien Enemies Act of (no less) 1798.

This triggered immediate litigation on behalf of those who could be affected.

(The docket of available court documents is here.)

And so the same day of the proclamation, a federal court made this interim order (a “Temporary Restraining Order”):

MINUTE ORDER: The Court has reviewed Plaintiffs' Complaint and Motion for Temporary Restraining Order. Given the exigent circumstances that it has been made aware of this morning, it has determined that an immediate Order is warranted to maintain the status quo until a hearing can be set. As Plaintiffs have satisfied the four factors governing the issuance of preliminary relief, the Court accordingly ORDERS that: 1) Plaintiffs' 3 Motion for TRO is GRANTED; 2) Defendants shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court; and 3) The parties shall appear for a Zoom hearing on March 17, 2025, at 4:00 p.m. The hearing will proceed by videoconference for the parties and by telephone for members of the public. Toll free number: 833-990-9400. Meeting ID: 049550816. So ORDERED by Chief Judge James E. Boasberg on 3/15/2025. (lcjeb1) Modified to add public access line on 3/15/2025 (znbn). Order on Motion for TRO

The order was made by the chief judge Boasberg of the District of Columbia federal court.

You will see the written order includes the injunction that “Defendants shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court”.

This written injunction was supplemented by this oral command from the judge (copied from here, emphasis added):

“[T]hat you shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”

There is no doubt that this was an oral command from the judge, and it would also seem that is an express order of the court.

The plaintiffs in this case certainly believe it to be an order of the court:

“That oral Order of course carries no less weight than the Court’s written Order.”

But this is one of the many things contested by the federal government. They contend, among other things, that because it was not contained in the minuted Order quoted above, it did not bind the government.

As one person reported from yesterday’s hearing, the judge is somewhat unimpressed with this contention:

*

I am not an American lawyer, but it would seem to me from an English law perspective that it was at least necessarily implicit in the minuted Order that any planes should be turned round – and that the terms of of the minuted Order should be constructed and interpreted accordingly.

And this is distinct from the point as to whether an oral command from the bench itself constituted an Order of the court (which is a point of American law on which I am not able to offer a firm view).

(In England and Wales, the general position is that an order given by a judge in court has effect from the date it is made, regardless of when it is recorded and sealed: CPR 40.7(1).)

If what was orally commanded by the judge from the bench constitutes an Order, regardless of whether it was minuted (which is the express position of the plaintiffs and the apparent position of the judge), then on the face of it, the United States government breached that Order.

*

The crucial question is thereby binary: did the United States government breach a court Order?

There can only be a yes or no answer to that question.

This crucial question, of course, follows the prior question of whether there was, in fact, an Order.

*

But the crucial question is not whether the judge had the jurisdiction to make the Order.

In the United Kingdom the position across all three of our domestic jurisdictions is that an order of the court binds the government until and unless that order is set aside by the court (or, hypothetically, superseded by legislation).

This was unanimously affirmed by the Supreme Court of the United Kingdom as recently as 2021 – I wrote about the case recently at Prospect, suspecting the issue was about to become topical.

In essence: governments cannot pick and choose with orders they can comply with.

I understand this is also the position in the United States, which is not surprising.

This means that if the United States government genuinely believed the court was in error in making an order the correct course would have been to either appeal the order or to seek to amend it.

It was not open to the federal government to disregard it because they believed it was made in error.

*

The position of the United States government can perhaps be summarised as follows:

– they complied with the minuted Order;

– they were not obliged to comply with the oral command from the bench, as that was not an Order; and

– in any case, the jurisdiction of the court ceased once the plane was in international airspace.

That third point seems to have been in the minds of those in government – including the Secretary of State – who clapped and giggled at the “Oopsie Too Late” tweet (discussed on this blog yesterday).

A thing cannot really be “Too late” if there was no applicable order to begin with.

The fundamental problem with this “Oopsie Too Late” stance – as it must have then dawned on the United States government – is that the reach of a court order is based on equity, which means in this case that it attaches itself to the defendant regardless of where they are.

The judge is fully aware of this – and those reporting on the hearing yesterday all saw when the judge got out his equity light sabre:

There really can be no answer to this point.

One cannot play “Oopsie” with Equity.

The government lawyers no doubt know that they are likely to lose on this point.

If so, this would explain why the American lawyers are not playing the “Oopsie” game and are attempting to say that there was no applicable Order to begin with – or even that national security (ahem) trumps everything.

*

Yesterday’s hearing was, the judge said, about finding out information.

The plaintiffs listed the questions as follows:

This was information the government did not want to give.

The judge yesterday could have “thrown the book” at the defendant lawyers for refusing to provide this information – and issued sanctions there and then.

But he was wise not to do so – as sanctions imposed in haste often can be appealed with ease.

The judge instead has ordered that the answers be provided later today – or a reason given for the answers not to be given:

 

The judge is an experienced chief justice and he can sit in camera to hear sensitive information. If so, the national security excuse will not work for the government.

The judge also – sensibly – has insisted that the reasons be given as sworn statements.

Those who remember the Brexit litigation here in the United Kingdom will recall that Boris Johnson’s prorogation case fell apart when no minister or official would, on pain of perjury, set out in a sworn witness statement the true reasons for the prorogation.

Sworn statements are never to be given lightly: they concentrate the mind wonderfully.

*

Overall, there are two explanations for why the American government lawyers had a bad day in court yesterday.

The first is that what they did is all part of some grand knavish strategy: delay, obstruct, appeal, hinder the court, so that any final judgment or order or sanction is put back and back until it does not matter anymore.

This may well be true – and it is certainly a strategy that has worked on other cases for this President.

But there is also a second possible explanation.

That the legal side of things were not integrated into the initial decision-making for the deportations – and that the lawyers were then told to find some defence, any defence.

And the lawyers know there may be no defence to what has happened. If so, that would certainly explain their desperate attempts to avoid any hearing.

(And as reply guys will no doubt say, there could be a mixture of the two!)

But what does not explain what happened in court yesterday is any robust confrontational approach, a rousing call to arms against the judges.

Perhaps that will now come. Perhaps this case will now get politically weaponised.

But the impression so far is that the federal government has not really thought through their legal strategy – and that their lawyers do not know what to do.

*

“The truth is, these are not very bright guys, and things got out of hand.”

~ All the President’s Men

***

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Posted on 18th March 202518th March 2025Author David Allen GreenCategories Uncategorized

14 thoughts on “Understanding what went on in court yesterday in the US deportations case”

  1. Simon Harries says:
    18th March 2025 at 11:01

    Just wanted to say this kind of analysis is vital to us right now. It is easy to become overwhelmed with the sheer craziness of what is happening. But this at least reminds us that all viewpoints and actions are open to interpretation, analysis and comment. Judges are now both the line of defence against authoritarianism and the principal targets. We shall see how they cope. Good work by DAG again. You are doing a public service- and I truly mean that.

    Reply
  2. Declan Clark says:
    18th March 2025 at 11:25

    Excellent work again, David.

    One thing struck me about the “planes are in international airspace so jurisdiction doesn’t apply”; I recall from Howard Marks’s book that, when he was arrested in Spain, they put him on an American plane and he was told that “an American aircraft is regarded as being on American soil, regardless of where it is”, which was their justification for his being under US jurisdiction at that point.

    Is this the case, and if so, would it not have applied here also, this rendering the “planes were in international airspace” argument moot?

    Reply
  3. Dan L says:
    18th March 2025 at 12:03

    A minor point. 3 UK jurisdictions? Doesn’t the Sennedd in Cardiff have law-making powers in some, devolved, matters. Joining Scotland, Northern Ireland and the UK as jurisdictions. Notwithstanding that there aren’t separate courts.

    A more important one. As you have set out elsewhere, the Trump administration doesn’t recognise the power of the judiciary over the executive. It is a category error to think that law applies. It doesn’t matter to Trump and his henchmen if the court tells them they are acting unlawfully. The government’s legal representatives just haven’t been told not to use legal arguments yet – but they are gaming playing for appearances’ sake.

    Reply
    1. David Allen Green says:
      18th March 2025 at 14:20

      Dan, I am afraid your minor point is an incorrect one. Wales does not have its own jurisdiction. That Wales can make its own law makes no difference to jurisdiction, which remains that of England and Wales. You are perhaps confusing “choice of law” and jurisdiction.

      Reply
      1. Dan L says:
        18th March 2025 at 17:25

        Every day is a learning day. Thank you.

        Reply
        1. David Allen Green says:
          19th March 2025 at 10:56

          My initial response to this was intended to be good humoured, but I now have had two rather upsetting and unpleasant comments, so I have deleted my original comment.

          I obviously got both the tone and content wrong, and I apologise. It was not intended, let alone “spiteful”.

          Reply
    2. Harry Smart says:
      18th March 2025 at 20:17

      I think the ‘Trump and his henchmen’ thing is interesting. There are the henchmen (from the German ‘Henker’, executioner), and there are those who say ‘No’, as quite a few honourable members of the judiciary have done, along with other public servants.
      Court orders are ultimately, enforced, executed, by state-authorised agents. Those agents are being required to choose, whether to enforce the orders of courts, or to obey Trump’s orders. So far, ICE at least are complying with the Trump crew, but these proceedings may focus some ICE officers’ minds, and a whole swathe of people, police, military, etc. may be having their minds focused too. I can’t imagine Trump’s team have endeared themselves to career military people, for instance. All of those agencies are lawyered up and there must be some fascinating conversations going on behind closed doors.
      Let’s hope the cadre of ‘henchmen’ diminishes and that of honourable state agents increases.

      Reply
      1. Matt Flaherty says:
        19th March 2025 at 09:09

        If you work in the executive and disobey the Trump White House, then you either resign or “You’re Fired”. These honourable state agents are then simply replaced with more pliant ones. Those pliant ones need not fear the judiciary. Trump will pardon them if it comes to it. They may have cause to worry about their future careers though. Lawyers should be concerned about reputational damage at least, and perhaps disbarment.

        Reply
  4. Anthony says:
    18th March 2025 at 12:13

    Thank you David. I always value your dedication to distilling the essence of an issue into clear and easy to understand terms. I would like to add another perspective though, not necessarily a legal one, that this whole circus was a deliberate test. More specifically, it’s was a test to see how things went down in the court of public opinion, to help inform the longer term strategy to introduce extra judicial ‘justice’ and authoritarianism; to give the current regime a free hand to do what they want unshackled by the rule of law.

    They are adept at using technological tools (think Cambridge Analytica) to analyse how particular messaging or events play out with different groups, then tweaking the message and strategy over time. This was a big part of their election success, and I see no reason why they wouldn’t use the same tools to cement and increase their power.

    I suspect that at some point within the next couple of years there will be similar tests around removal of the two term presidential limit, full immunity and/or discharging of previous convictions for the president, that those disagreeing with, or investigating the president are subject to criminal sanction and so on. Speculation, of course, but should it happen, somewhat unsurprising.

    Reply
  5. Eric Marcus says:
    18th March 2025 at 12:34

    I’m sure I’m not alone in thinking the quote from “All the President’s Men” is applicable and appropriate to most political disasters.

    Reply
  6. Matt Flaherty says:
    18th March 2025 at 12:49

    The King hath no prerogative, but that which the law of the land allows him.

    Reply
  7. Christopher Nimmo says:
    18th March 2025 at 16:22

    Trump is playing games with the judiciary with a view to seeing how far he can push things to suit his agenda. This should be viewed as part of a wider strategy to subvert democratic rule in the USA, in my opinion.

    Reply
  8. Jonathan Irons says:
    18th March 2025 at 16:40

    Thank you for this analysis.

    They got their headline though, and I fear it will be quoted more often than the legal details, just as “activist lawyers” were so derided in the UK.

    Reply
  9. Rob Grayson says:
    18th March 2025 at 20:42

    Thank you, as ever, for this superb analysis.

    Reply

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