In a jaw-dropping opinion issued by the 7th U.S. Circuit Court of Appeals in Chicago on January 23, Judge Frank Easterbrook—a longtime speaker for the conservative Federalist Society and someone whom the late Justice Antonin Scalia favored to replace him on the U.S. Supreme Court—rebuked Attorney General William Barr for declaring in a letter that the court’s decision in an immigration case was “incorrect” and thus dispensable. Barr’s letter was used as justification by the Board of Immigration Appeals (the federal agency that applies immigration laws) to ignore the court’s ruling not to deport a man who had applied for a visa to remain in the country. [...]
“We have never before encountered defiance of a remand order, and we hope never to see it again,” Easterbrook wrote. “Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.” [...]
If Trump continues on the path of upending the authority of federal courts (as can be expected), Easterbrook’s contempt threat will necessarily become a reality. Federal judges will have to use their contempt powers to protect the constitutional prerogative of the judicial branch of government. But contempt against the government can be tricky. A judge can impose a monetary fine, but fines raise legal questions of sovereign immunity. A judge can alternatively put someone in prison. But imprisonment raises the question of who would go behind bars for defying a court order on behalf of the president. In normal times, an order declaring that the president’s staff is guilty of contempt could as a third option trigger enough shame to prompt compliance. But with Trump in the White House, we are not in normal times.
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