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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.)
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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?
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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”):
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:
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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.
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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.
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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.
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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.
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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.
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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.
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“The truth is, these are not very bright guys, and things got out of hand.”
~ All the President’s Men
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