Motion to Dismiss Filed by Judges of the U.S. District Court for the District of Maryland

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The Judges and Clerk of the United States District Court for the District of Maryland filed a “Motion to Dismiss & Opposing Plaintiffs’ Motion for Preliminary Injunction” in USA v. Russell, et al., No. 1:25-cv-2029 (D. Md. Jul. 21, 2025).

This is a lawsuit against all of the Judges of the District of Maryland, the Court itself, and the Clerk of the Court, arising out of a standing order of the Court that briefly stays certain habeas corpus petitions. Plaintiffs are the United States and the Department of Homeland Security.

Defendants’ memorandum states: “Under our system of government, the Executive does not just haul off and sue the Judiciary. Instead, the Executive takes care that the laws are faithfully executed.”

In a different context, it has been said that: “The need for soundness in the result outweighs the need for speed in reaching it.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 937, 938 (1952)(Burton, J., dissenting, and Frankfurter, J., concurring).

The District of Maryland’s Standing Order 2025-01, as amended, permits entry of a stay that lasts only “until 4:00 p.m. on the second business day after” an alien files a habeas corpus petition. It recites that it is designed to preserve the “existing conditions and potential jurisdiction” of the Court, in order to permit the Court to determine the scope of its authority. It bars the Executive “from removing… or altering” the legal status of alien detainees who file a habeas corpus petition for that specific, brief period of time. It states that the Standing Order will: preserve the petitioner’s right to participate in court proceedings and obtain legal counsel; give the Court time to evaluate the claims; and, “ensure the Government has a fulsome opportunity to brief and present arguments in its defense.” In my words, it provides due process.

The Introduction to the defendants’ memorandum states in part:

This unprecedented lawsuit is fundamentally incompatible with the separation of powers… If allowed to proceed, the tensions between the branches produced by such a suit would only escalate, with executive depositions of judicial officers (and vice-versa) and cross-examinations exploring judicial motivations and executive necessities in open court. And if this suit succeeds, it will not be the last – and the next suit could name the [United States Court of Appeals for the] Fourth Circuit[1] and cause greater disruption still. But this suit is unprecedented for good reason: It is neither justiciable nor meritorious.

Perhaps a bit tongue-in-cheek, the memorandum states: “A suit denominated Executive v. Congress or vice-versa would be plainly nonjusticiable; Executive v. Judiciary fares no better.”

The memorandum accepts the “truism” that judges sometimes violate the law. It proceeds with the undoubtedly correct assertion that is “why we allow both appeals and challenges to judicial rules in individual cases….” It suggests that the proper way to challenge the Standing Order is to raise the argument in an individual case.

It adds:

But it is equally true that immigration officers sometimes violate the law. And when they do, the consequences can be stark – and potentially irreversible by the Executive’s own admission [in Abrego Garcia v. Noem].

Thus: “It is little surprise, then, that numerous courts around the county, including the Fourth Circuit, enter automatic temporary stays as a matter of course for a short period when an alien seeks emergency relief from an impending removal.” These orders protect the need for a chance for “meaningful relief” before a court “can make even a preliminary assessment….”

The Judges’ memorandum argues in part that the Standing Order reflects a “commonsense” balancing of the consequences of removing someone incorrectly v. a brief stay to ensure a preliminary “look before it is too late to do so.”

Quoting the Fifth Circuit, the Judges suggest that a federal court “is… not a Denny’s” and “judges need some modicum of time and adverse presentation to properly assess their jurisdiction and make an informed decision, while also giving aliens a reasonable opportunity to request emergency relief.”

And as precedent, it points to “default temporary stays in immigration cases seeking emergency relief… in at least five circuits, including this one.” The memorandum states that this stay of approximately two days is much less than the Fourth Circuit’s stay of 14-days that has been in effect for years, without objection, citing Standing Ord. 19-01 (4^th Cir. Oct. 21, 2019).

The memorandum states that the Maryland Standing Order is a “modest effort to preserve the Judiciary’s ability to perform its constitutionally assigned role….” [Emphasis in original].

It points out that there is no “waiver of the district court’s sovereign immunity or abrogation of judicia immunity….” And, it also suggests that the Complaint does not identify any waiver of sovereign or absolute judicial immunity, and asserts that there is none in circumstances such as this.

The Judicial Defendants’ memorandum suggests that:

This Court should make clear that this lawsuit has no proper place in our constitutional separation of powers, and that the standing order does no more-or less- than preserve the Judiciary’s essential ability to ensure that justice is done to all who seek relief from the courts.

It is argued that “immigration litigation has shifted to district courts” and that increased caseload created “the need for modest measures to assist them in addressing time-sensitive petitions for review,” especially given the administration’s efforts to execute removals “on an extraordinarily expeditious basis….”

The memo states that the Executive identified 12 cases in which it claims that a stay was entered.

It explains that: “In some, the stay lapsed by its own terms after a prompt status conference….” In one, it lapsed due to voluntary dismissal by the alien. In another, the Court extended the stay, without objection by the Government. And, the memorandum states that the order was not even entered in one of those cases.

It is also asserted that, in the stayed cases, the “judges have given them the utmost priority and advanced them with alacrity,” citing examples. In one, the habeas petition was filed on Friday, the Executive moved to dismiss on Monday, the Court held a telephone conference on Tuesday, entered an expedited briefing schedule totaling 10 days, held a hearing the next day, and granted the government’s motion to dismiss two days later.

On the one hand, the Standing Order gives the Judges 48 hours to evaluate a petition. On the other, the executive asserts it “robs the Executive Branch of … time to put its policies in effect,” according to the memo. The Judges, however, respond that standing orders are “routine exercises” of the Judiciary’s common-law inherent power.

It is alleged that the Complaint asserting claims of (1) violation of the requirements for an injunction, (2) violation of alleged jurisdictional bars, and, (3) violation of requirements for Local Rules, “identifies no law creating a cause of action that allows anyone (the United States or otherwise) to file a suit naming the entire judicial district” for this relief. It is argued:

[This lawsuit] is an effort by one branch in its institutional capacity to sue another branch in its institutional capacity seeking what amounts to an advisory opinion unmoored from any specific case or controversy…. [The Executive] does not enjoy any free-floating authority to sue a coordinate branch of government.

It is asserted that: “The Executive’s paramount interest is the same as the Judiciary’s: that justice shall be done.” The Judges argue that this Standing Order is a “modest effort to serve that end” and it fits “comfortably within a long tradition of comparable orders.”

It is also asserted that 42 U.S.C. §2071(c)(1) authorizes the Executive to petition to have standing orders “modified or abrogated” by the Judicial Council if they qualify as Local Rules.[2] Further, 28 U.S.C. §2071(e) authorizes emergency local rules.

However, quoting the Seventh Circuit, the memorandum argues that there is no “Writ of Erasure” to “blot the standing order[s] from the books.”

Finally, the memorandum addresses the United States’ argument that the standing orders “diminish the votes of the citizens who elected” the current President. It replies:

That is a proposition without limits, and with very serious consequences for the rule of law and the separation powers. In reality, it is the enduring text of the Constitution, not the preference of voters at a moment in time, that establishes the powers of the three branches of the federal government. That text gives the Judiciary a critical role in ensuring that the Executive acts within the bounds of the statutes duly enacted by Congress. And the judicial function depends on the ability to preserve the status quo for the brief interval necessary to address those issues in a considered fashion.

There is much more in the Judges’ memorandum than this blog can summarize. It addresses, for example, the irreparable injury argument, the adequate remedy at law, the balance of equities, and many others.

In an entirely different context, Justice Jackson recognized Justice Holmes’ statement that people must “turn square corners” in dealing with the government.

However, Justice Jackson added that: “It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387 (1947)(Jackson, J., and Douglas, J., dissenting).

For some additional context, please see: