Seventh Circuit: 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.

Comments

[Longtobefree]

And the judge involved is suspended for how long?
Fined?
Disbarred?
Oh, business as usual for violating the US Constitution?

[David Nieporent]

The judge did not "violate the US constitution," and said constitution itself does not permit the judge to be "suspended" or "fined" because you don't like her ruling. (Disbarring her is an entirely unrelated matter by unrelated people and in any case would not actually affect her job, since nothing requires a federal judge to be a member of the bar.)

[Bruce Hayden]

“The judge did not "violate the US constitution,"”

“ These two problems are related and lead us to conclude that the order infringes on the separation of powers.”4

David - that was exactly what the 7th Circuit said - that the District Ct judge had violated the Constitution, by violating Separation of Powers.

I understand that you don’t believe that there is any such thing as Separation of Powers, when a Republican is President, and that the Judiciary should be supreme then, and be able to micromanage the Executive. But, luckily, that apparently isn’t the view of the 7th Circuit (and clearly isn’t the view of the Supreme Court).

[JohnSmith97]

So what to make of the circuit court saying that the original ruling violated separation of powers.

Just an "opinion"?

No wonder you support the idea of district judges running the executive branch. They can never be held responsible for being wrong.

[Poxigah146]

Should be removed from office just like the Obama appointed Irish fuck in Rhode Island who ruled he gets to decide how federal money is spent. He's also the piece of shit that held that Rhode Island's magazine and assault weapons bans showed "fealty" to the Constitution.

The judge here is a Canadian of Jamaican descent. Also appointed by Obama, who is the biggest ugly piece of shit to ever be in the White House along with his man looking wife. One thing is for sure, she doesn't belong in America.

[Stupid Government Tricks]

And they complain about the would-be king in DC. Chicago has this judge, a mayor, and 33(?) aldermen who are all corrupt as hell and all are wannabe kings.

[Alpheus W Drinkwater]

And I say the seventh circuit judges are "Corrupt as hell."

This is fun, throwing around unfounded accusations with no support or evidence, but simply because we may disagree with their opinions.

[ikaritenshi]

ouch, that is one of the harsher appellate smackdowns/rebuke of a district court Judge I have read.

[Life of Brian]

This is a welcome breath of fresh air in the recent rash of federal judges getting just a bit too big for their britches and fancying themselves to be an ad hoc head of the Executive branch.

Maybe Mr. "oh, SNAP" will be next?

[Martinned2]

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.

That first objection seems right to me, but I guess the second is based on a "you can't tell Trump what to do" theory of the constitution that is also very popular here in the comments section.

[Riva]

No little troll. This particular "theory" is actually based on the structure of the Constitution and has been acknowledged from the Federalist Papers to Marbury v Madison and essentially every subsequent relevant case since then. Are leftists really this ignorant? Or are they just pretending not to understand that the separation of powers is an inherent aspect of the structure of our government in order to rant against President Trump?

[ReaderY]

The power to say what the law is is the power to tell the executive branch they’ve violated it. And unless you arw claiming the executive branch is above the law, that’s a power to tell the executive branch what to do. Simple as that.

Actualky, you ARE claiming the executive branch is above the law. You’ve repeatedly portrayed our constitution as making Mr. Trump some sort of king-like being whose ass-ring judges are apparently supposed to kiss on pain of you calling them out as ungrateful and disobedient.

[ReaderY]

The district court here indeed went a little too far. But you’re arguing courts can never issue orders to the Executive Branch. Happens all the time.

[KevinP]

Can Trump order the district judge to appear in the office at certain times of the day and week?

[not guilty]

"Can Trump order the district judge to appear in the office at certain times of the day and week?"

No. The district judge is not an agent of a party litigant in a lawsuit over which Trump is presiding. (But I suspect that KevinP knows that.)

[Riva]

The point illustrates the constitutional reality that President Trump cannot manage the judicial branch just as the megalomaniac district court judge in the present case cannot manage the executive branch. (But I suspect that Not Guilty knows that.)

[KevinP]

You and your wife have marital disputes and end up before a judge.

She orders you and your wife to have sex every day at 5:45 pm or later.

Proper order or no?

[wvattorney13]

I think that would be unreasonable and an abuse of discretion for a judge to rule ANY party to do that, let alone a co-equal branch.

Even if the chief had been found in contempt the judge can jail him or fine him to force compliance but can't order him to appear each and every day and justify his actions to her like she is his boss.

You don't have to believe the unitary executive theory to believe that judges do not have the power to supervise executive branch officials. They can order and compel things only to cause compliance with a law or ruling, but not supervise.

[Riva]

Even the most basic aspects of the constitution can be denied if they get in the way of Trump derangement. Which is why, I suppose TDS is a mental illness not a legal theory. But so it seems is modern liberalism.

[David Nieporent]

I think that would be unreasonable and an abuse of discretion for a judge to rule ANY party to do that, let alone a co-equal branch.

Setting aside the verbal tic about "co-equal branches" for the moment, why do you think a judge could not order a litigant to personally appear in court, and/or to make regular reports to a court, if the court found it necessary to do so in order to enforce compliance with an otherwise valid court order?

[Riva]

A better illustration of your complete inability to grasp separation of powers could not have been written. We're not talking about any civil litigant in any civil litigation. The issue in the present case concerns the abuse of judicial power to manage the executive branch. This is not within the power of the federal judiciary.

[David Nieporent]

The bot once again is providing a preprogrammed response rather than addressing the actual comment to which it is responding. The entire point of the part of wvattorney's post which I quoted and to which I responded was that he was claiming it would be impermissible for a judge to do that with respect to "ANY party," not just wrt an executive branch official.

But of course an executive branch official is just a civil litigant.

[Riva]

What can I say? you just keep double down on stupid. Separation of powers concerns come into play because the separate, co-equal coordinate branches of government acting through their officials are NOT just any civil litigants, you fucking abysmally stupid asshole.

[ReaderY]

President Clinton made exactly the argument you making, and the Supreme Court rejected it, in Clinton v. Jonesargument. The President has no special immunity from civil litigation arising out of separation of powers.

As usual, you’re just making stuff up and then baselessly accusing everyone who disagrees with your made-up stuff of being ignorant.

[Riva]

That is most emphatically wrong. Clinton v Jones is completely inapposite. There were no separation of powers concerns because the case concerned private, unofficial conduct unrelated to the duties of the office and the proceeding did not interfere with the President's constitutional functions.

What is it with you leftists and the inability to understand separation of powers? As noted above, are you just pretending or are you honestly this ignorant?

[wvattorney13]

Putting aside the separation of powers issue, it would be highly unusual for a judge to require daily personal presence of anyone in court. That should require an extraordinary amount of contempt. Here there was no such finding.

Even in a simple divorce action or a criminal case, people have other stuff to do.

[David Nieporent]

If you're just saying that the record here didn't support that order, that's fine. I read your quote as saying that a judge could never do that to a litigant.

[John F. Carr]

So instead the judge has to wait for a violation of the order to be pointed out, call the violation criminal contempt, and watch Trump pardon everybody in CBP.

[not guilty]

The plaintiffs could seek civil contempt sanctions, to which the pardon power does not apply.

[Bruce Hayden]

And then what? He could maybe fine the USG, or the Officer involved. And if it is for costs, the plaintiff might get paid. But that is about it. He can’t really fine the USG, since the USG is the USG, and Officers of the USG acting doing their job, within the scope of their duties as such typically get reimbursed, so we are back to the USG fining the USG.

[Bruce Hayden]

Or just refuse to enforce the judge’s contempt order. The court can hold someone in contempt, and if he is before the court, hold them there. But if the party found in contempt is not physically in court at the time, the court must depend on the Executive to arrest and detain that party. Which in cases like this isn’t likely to happen. The AG brings it up at a Cabinet meeting, or in a phone call, and Sec Naomi says that she’s too busy right now. So are her people. End of story.

What must be remembered is that the Judiciary operates with soft power. The Executive has hard power. They have almost all the guns and jails. The Judiciary thus depends on the Executive to enforce its will. Ignoring the Judiciary has a political cost to the Executive, esp after roughly 230 years of it mostly acceding to the will of the Judiciary.

But activist judges have likely pushed Trump to the edge, esp these last several months, and esp in regards to execution of his sworn obligation to enforce those laws. And we are probably closer to that point now, than we have been for quite some time. And when the President does ignore the Judiciary, and they can’t really do anything about it, everyone will see that the emperor has no clothes. CJ Roberts, along with probably at least 6 other Justices, understand this, even though a lot of districts court judges appear not to.

[not guilty]

The district judge has an interest in seeing that her order is complied with. The Court of Appeals did not discuss whether the district court's authority under 28 U.S.C. § 1651(a) would apply here:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

I don't see a problem with ordering a managing agent of a party litigant to appear before the Court. If the order in fact is not being complied with, he could decline to answer questions which would tend to incriminate him by asserting his Fifth Amendment privilege.

[KevinP]

A one time appearance is reasonable. Daily appearances are not.

[pdshaw]

As the Seventh Circuit pointed out, the video that led the Judge to believe her TRO wasn't being obeyed did not involve any plaintiffs. The TRO was brought by a group of journalist to protect 1st Amendment rights from being violated by 4th Amendment violations. The protected class are journalists (who wear identifying badges), protestors and religious practitioners. This 1st/4th Amendment combo might avoid the block on 4th Amendment injunctions that followed from City of Los Angeles v. Lyons (1983), or it might not.

But it retains the basic problem with 4th Amendment injunctions pointed to by Prof. Orin Kerr at this site:

"Fourth Amendment law is just too fact-specific. What the police can and can't do is so dependent on the facts that it's hard for courts to carve out ahead of time a class of things the Fourth Amendment will not allow. This creates a problem for courts wanting to impose broad injunctive relief to prevent Fourth Amendment violations. It forces courts to either say something generic like "don't violate the Fourth Amendment" —something the Fourth Amendment already covers—or to try to come up with prophylactic rules to protect the underlying Fourth Amendment values even if it means enjoining some constitutional acts to prevent other unconstitutional ones."

The original TRO was conservatively drafted to essentially restate standard 4th amendment law in a manner that mainly bent 4th Amendment protections towards a protected class (and possibly away from nonprotected classes she saw in the video).

Plaintiffs have alleged that Bovino violated the TRO by personally throwing a tear gas cannister at protestors on another occassion. There is ongoing discovery to determine if a violation had occurred which will ultimately be adjudicated by the judge on the totality of facts. That sounds like the proper judicial role, not requiring a field officer for a multi-state region to appear in a downtown Chicago courtroom every weekday to report on what happened that day.

[Bruce Hayden]

Then we can get into the issue of whether a district court judge can micromanage Executive Branch employees to the extent of forbidding them from using non-lethal munitions (such as tear gas) that their agency feels are necessary, in certain situations, in carrying out their duties.

Non-lethal munitions are a step before the use of lethal munitions. They have their place. Very often, when utilized, lethal munitions could have been legally justified. Non-lethal munitions can sometimes prevent the necessity of using lethal force. So what this judge attempted to do was remove the use of non-lethal alternatives from the arsenal of tools available, regardless of the situations faced on the ground, in real life.

Ask yourself this. Why was the judge requested to issue this order? Was it to have people die, either from the use of lethal munitions when non-lethal munitions would have prevented those deaths of the rioters (thus creating martyrs for the cause), or death or great bodily injury to the federal employees being endangered?

[David Nieporent]

Then we can get into the issue of whether a district court judge can micromanage Executive Branch employees to the extent of forbidding them from using non-lethal munitions (such as tear gas) that their agency feels are necessary, in certain situations, in carrying out their duties.

Yes, of course. Since the constitution itself does not leave to executive branch agencies the discretion to do whatever they "feels are necessary," (See, e.g., Graham v. Connor, which held that the 4th amendment requires objective reasonableness) a court can enjoin the ones that go beyond constitutional strictures, assuming the other grounds for an injunction are met.

Why was the judge requested to issue this order? Was it to have people die, either from the use of lethal munitions when non-lethal munitions would have prevented those deaths of the rioters (thus creating martyrs for the cause), or death or great bodily injury to the federal employees being endangered?

No. It was because there was no justification for the use of force at all.

[thesafesurfer]

There was no justification of force at all.

Goebbels celebrates your repeating this lie from his grave David.

[David Nieporent]

This 1st/4th Amendment combo might avoid the block on 4th Amendment injunctions that followed from City of Los Angeles v. Lyons (1983), or it might not.

It's sort of ironic to cite Orin's point that 4th amendment cases are generally fact specific (I don't question Orin's statement at all, of course; pretty much nobody should ever do so wrt the 4th amendment) in support of a categorical position against 4th amendment injunctions. Because Lyons did not rule that courts could not issue 4th amendment injunctions. The holding of Lyons was that the plaintiff lacked standing under those particular facts because he could not show it was likely he'd be subject to (illegal) chokeholds in the future. After all, in that case there was no police policy of choking everyone they encountered, and the plaintiff could not establish that he was imminently likely to be arrested again and that the particular cops who happened to stop him on that occasion would apply a chokehold if he was.

The factual difference between that and illegal activity by Trump's ICE against classes of people should be glaring.

[thesafesurfer]

Classes of people=Illegal aliens

David is outraged that the police go after criminals.

[David Nieporent]

Classes of people=Illegal aliens

Um, no. Please try to keep up. The injunction here had nothing to do with illegal aliens. As pdshaw wrote above, "The protected class are journalists (who wear identifying badges), protestors and religious practitioners."

David is outraged that the police go after criminals.

I'm not the one having a tantrum about "Arctic Frost."

[JohnSmith97]

We know that you have no problem with the executive spying on the legislature - as long as it is (D) party members doing the spying. Flip it around and it would be an impeachable offense.

[pdshaw]

I was paraphrasing Kerr's explanation further on in the same piece:

"The Supreme Court has in the past interpreted limits on Article III to basically block these options. The key case is City of Los Angeles v. Lyons (1983). To get an injunction, a plaintiff has to show that the specific unconstitutional practice to be enjoined has happened to him before and will likely happen to him again. When that happens, the injunction will be specific and not prophylactic; it will specify a clearly unconstitutional practice. But that's a high bar, as it requires a situation in which a plaintiff who had his Fourth Amendment rights violated in a specific way before to have good reason to think his rights will be violated in that same specific way in the future. It means that injunctive relief in Fourth Amendment cases is uncommon. For more, see my short article The Limits of Fourth Amendment Injunctions (2009)."

https://reason.com/volokh/2025/09/08/supreme-court-lifts-injunction-in-los-angeles-immigration-enforcement-case/

[wvattorney13]

The blueprint here is easy to follow. I know you don't want to see it because you like Trump getting his, but it is very clear.

First, the injunction was improper. "I order you to follow the law." That isn't appropriate. But it gives the court jurisdiction.

Next, if there are reports that any officer is not following the law, the judge orders the executive official in charge, say the local sheriff or police chief, to report daily to the court and file reports.

Bingo. You have judicial supervision of every executive function. To say it illustrates the absurdity. And if this was a Trump appointed judge doing this to President Kamala Harris, you would be leading the charge against the imperial judiciary.

[Mark In Florida]

Jeez, no wonder! She looks just like Kamala Harris (also with Jamaican ancestry) and apparently thinks like her too!

[santamonica811]

Has Harris given a lot of opinions about separation of powers, or about the scope of authority of federal judges??? I'm curious about how this particular judge's thought-process reminds you so much of Harris? You obviously have some specific examples in mind. Mind sharing them with us?

[janap31621]

like harris, this judge is a piece of nigger shit. she belongs in the so called democratic republic of the congo eating a banana, not sitting on the federal bench.

[Alpheus W Drinkwater]

"And you look like a bucket of shit!"

[Kenneth Almquist]

I suppose the time limitations prevented the appellate court from writing a detailed opinion, but what they did write is not very convincing. It offers two justifications for issuing the write. First, it states that the court should be a “neutral adjudicator of the parties’ adversarial presentations,” which if taken as an absolute rule would mean that it’s never appropriate for a judge to issue a sua sponte order. Second, it states that the order “[intrudes] into personnel management decisions of the Executive Branch,” but any order requiring government personnel to obey the law does that. The ruling doesn’t suggest any alternative, less intrusive, approaches the district court could have taken to enforce its order.

Perhaps there is a case to be made that the appellate court acted correctly in issuing the writ, but any such case would require a lot more nuance than the court provides.

[Bruce Hayden]

The district court doesn’t deserve anything more. He was trying to micromanage the agency, and that violates Separation of Powers.

[David Nieporent]

It does not. Since the executive branch has no power of any sort to violate the constitution or statutes, it cannot violate the so-called separation of powers to make sure that the executive branch does not do so. If the judge's actions in this case went too far, it's because she did not tailor her order (about his appearance) to anything specific.
​
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Oh, and "the district court" here is a she, not a "he"; doesn't do much for the credibility of your analysis of a case when you don't know basic facts that can be found in a three paragraph order.

[janap31621]

and whether the executive branch violated the constitution or statutes is in the eye of the beholder, in this case, the simian nigger piece of shit judge sara ellis

[David Nieporent]

MAGA, folks!

[Sarcastr0]

For those who dismiss this guy as not *really* with them, I'd point out that 1) he votes precisely like you do, and 2) Young Republicans on the Internet sound like him only more antisemitic.

[JohnSmith97]

More clownshow vibes from gaslighto.

Can't find any leftist in here that wouldn't vote for The (D) candidate for AG in VA - because the (D) is sacred.

Clearly the VA (D) party doesn't care, why should their voters?

[pdshaw]

The first issue wasn't about a sua sponte order. Requiring an executive officer to appear in person daily before the judge at a set time to brief the judge on the day's activities places the court in position of an inquisitor. The 7th Circuit order cites its relevant legal precedent: In re Commodity Futures Trading Commission, 941 F.3d 869 (7th Cir. 2019), which states:

"Cheney [v. United States District Court, 542 U.S. 367 (2004)] holds that mandamus is the appropriate remedy when a district court has authorized an inquest into the internal deliberations of the Executive Branch’s senior officials. See also, e.g., In re United States , 398 F.3d 615 (7th Cir. 2005). That’s a good description of the order requiring the Chairman and two Commissioners, appointed by the President on advice and consent of the Senate, to appear and reveal what lies behind their published words. Many decisions hold that mandamus is appropriate when a district judge inappropriately compels a ranking federal official to appear personally rather than by counsel. See, e.g., In re United States , 624 F.3d 1368, 1372 (11th Cir. 2010) ; In re Cheney , 544 F.3d 311, 314 (D.C. Cir. 2008) ; In re United States , 197 F.3d 310, 313–14 (8th Cir. 1999) ; In re FDIC , 58 F.3d 1055, 1060 (5th Cir. 1995) ; In re United States , 985 F.2d 510, 512 (11th Cir. 1993) ; United States Board of Parole v. Merhige , 487 F.2d 25, 29 (4th Cir. 1973)."

That the Court came up with the order on it's own just reveals that she was not well-advised of the legal issues with such an order. I believe the hearing was initially intended to address the Court's desire to require body cameras as part of the TRO (something the judge came up with on her own), but when that didn't seem doable, she pivoted to daily briefings.

[wvattorney13]

From my read the problem wasn't the judge entering a sua sponte order, but that the remedy would involve the judge overseeing the executive branch agency in these daily sessions and in THAT context acting as a party.

To your second point, the general nature of the order IS the problem. Every local judge could order the local sheriff to follow the law, and once one deputy arguably does not, could order the sheriff to have a daily meeting with the judge. You no longer have a sheriff. You have a judge acting as sheriff.

[DDHarriman]

The fascist actions taken by all these Democrat judges clearly undermines their claims about everyone else is the real fascist.

[David Nieporent]

The thing fascists are most historically known for is protecting citizens from illegal law enforcement!

[thesafesurfer]

"No justification for the use of force at all."

A blatant falsehood. Your specialty David.

[JoeFromtheBronx]

The government repeatedly has been shown to have lied and violate court orders. The abuses in this particular general context have been spelled out in detail. Brett Kavanaugh's assurances aside.

The judge had reason to believe her order was violated. The need for special reactions to extraordinary actions is not surprising.

https://abc7chicago.com/post/ice-chicago-news-border-patrol-chief-greg-bovino-appear-federal-court-immigration-operations/18079810/

The court of appeals order is fatuous in its lack of context and perspective though it might be validly following the spirit of current SCOTUS shadow docket decisions. Shouldn't be how this works but don't want to make Gorsuch mad, do we?

[wvattorney13]

"The judge had reason to believe her order was violated." Then she sets an evidentiary hearing and determines if this is true. If it is, then she takes remedial action to address the violation going forward.

Taking over the whole department is grossly disproportionate, especially prior to any finding of wrongdoing. The courts didn't go that far in response to massive resistance to desegregation in the south.

[David Nieporent]

The courts didn't go that far in response to massive resistance to desegregation in the south.

The courts in fact took over entire school districts, for years and sometimes decades.

[NvEric]

Amazing system we have here. Judges can make law - reach a decision which has the effect of law backed with fines or imprisonment - where a counter suit is required so that an officer of the federal government can resume their official duties.
Judicial Tyranny !
Of course, to enforce a law or ruling or decision, other people must act too. This is the heart of POWER - Power derives its force, not from what's written, but by the many people who carry out the enforcement. Enforcement along a chain of people is the only where POWER resides. Power is an action. Thoughts and words have no power by themselves.

[Kazinski]

Be an interesting experiment:

Have a bureaucracy and executive branch, but no executive or Congress, and just have 600 district court court judges exercising the legislative, executive and judicial functions.

No Congress to appropriate SNAP funding? No problem, a district judge will do it.

Have an executive branch wants to enforce the law? No problem, a district court judge will enjoin them.

An Salvadoran who briefly resided in the US is jailed in El Salvador? No problem a district court judge will supervise state departments negotiations to bring them back.