District Court Order to Federal Immigration Official “Infringes on the Separation of Powers”

From today’s order in In re Noem (7th Cir.):

After the district court issued a temporary restraining order affecting some aspects of immigration-law enforcement in the Chicago area, the judge on her own motion entered a further order requiring Gregory Bovino, a Chief Patrol Agent at U.S. Customs and Border Protection, to appear in court at 5:45 p.m. every weekday “to report on the use of force activities for each day.” The judge justified this order by stating that she had seen videos that led her to question whether the TRO was being obeyed. The order was not, however, a response to any motion by counsel for the plaintiffs (and the videos to which the judge referred apparently do not deal with behavior involving any of the plaintiffs).

The federal defendants seek a writ of mandamus with respect to this aspect (and only this aspect) of the district court’s rulings. We issued a stay of the order requiring Chief Bovino to appear and report daily, and we now GRANT the petition for mandamus.

While this litigation presents very challenging circumstances, the district court’s order has two principal failings. First, it puts the court in the position of an inquisitor rather than that of a neutral adjudicator of the parties’ adversarial presentations. Second, it sets the court up as a supervisor of Chief Bovino’s activities, intruding into personnel management decisions of the Executive Branch.

These two problems are related and lead us to conclude that the order infringes on the separation of powers. Review by appeal at the end of the case would not solve the problems created in the interim, which justifies review by a prerogative writ. See In re Commodity Futures Trading Commission, 941 F.3d 869 (7th Cir. 2019). Cf. Cheney v. United States District Court, 542 U.S. 367 (2004).

Thanks to Glenn Reynolds (Instapundit) for the pointer.