The Supreme Court has delivered a rare setback to the Trump Justice Department, declining to get involved right now in a case challenging a gag order the government had tried to place on its immigration judges.
The justices said Friday the administration hadn’t proved it faced a serious enough legal injury to justify an emergency intervention.
At issue is a Justice Department policy prohibiting immigration judges — who are employees of the Justice Department, not part of the independent federal courts set up in Article III of the Constitution — from speaking publicly about immigration policy without prior approval.
The judges’ association challenged the gag order, but a federal district judge said they needed to take the case to the Merit Systems Protection Board, a tribunal for handling personnel disputes within the Executive Branch.
The 4th U.S. Circuit Court of Appeals overturned that decision, saying that when the MSPB isn’t operating correctly, it upsets the operations under the Civil Service Reform Act, so cases can be brought directly to the regular courts.
“We cannot allow our black robes to insulate us from taking notice of items in the public record, including, relevant here, circumstances that may have undermined the functioning of the CSRA’s adjudicatory scheme,” wrote Circuit Judge Nicole Berner. “We therefore remand to the district court to assess the functionality of the CSRA’s adjudicatory scheme.”
U.S. Solicitor General D. John Sauer had told the high court that the ruling created a perverse loophole that will cause people who want to challenge Trump personnel moves to rush to file their cases in the 4th Circuit, distorting the way the cases are supposed to be fought out.
“If qualms about an agency’s ’independence’ … permit ignoring Congress’s decision to channel claims to that agency, it could be open season on agency-review processes in the 4th Circuit,” Mr. Sauer wrote two weeks ago in asking the justices to step in.
Chief Justice John G. Roberts Jr. had placed a hold on the 4th Circuit ruling to give the justices a chance to take a look.
In an unsigned opinion, they bowed out.
“At this stage, the government has not demonstrated that it will suffer irreparable harm without a stay,” the court said.
But they said the administration will get another bite at the apple with a forthcoming full appeal, expected to be filed by Mr. Sauer.
