There has been an ongoing struggle between district court judges and the Trump Administration over a variety of policies. In the first year, some district court judges issued nationwide injunctions that were largely rejected by the Supreme Court and appellate courts. These conflicts have continued and the intracourt tensions have increased. That was evident with the recent decision of the United States Court of Appeals for the Seventh Circuit, which delivered a virtual haymaker in reversing Judge Sara Ellis, an Obama nominee. The panel criticized Ellis for limiting the operation of federal officers in Chicago, saying that she “effectively established the district court as the supervisor of all Executive Branch activity in the city of Chicago.”

Protesters and journalists went to Ellis to restrain “Operation Midway Blitz.”  They challenged the conduct of Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Department of Homeland Security (DHS) under the First and Fourth Amendments, specifically raising  the use of tear gas and other chemical agents. Judge Ellis issued a preliminary injunction described by the panel as “sweeping”:  “It enjoined all law enforcement officers in the Northern District of Illinois, as well as federal agencies and the Secretary of the DHS, from using certain crowd control tactics and tools. It also required the defendants to regularly inform the court of its efforts at implementing the injunction.”

That included requirements that U.S. Border Patrol Commander Gregory Bovino report to her daily to brief her on his activities. The panel found that her order  “impermissibly infringes on separation of powers principles.”

Notably, this order came after various district courts were reversed on such orders, but Judge Ellis went forward with another attempt at a sweeping injunction. She reinforced her order by certifying a class action and then including 170 pages of fact-finding in her long order.

After the operations ended, the plaintiffs were not eager to have the case reviewed on appeal. While the plaintiffs asked for dismissal with prejudice, Judge Ellis refused. She instead dismissed without prejudice and departed from standard rules on such dismissals. This was meant to allow a resumption of litigation.

That led to an interesting (and telling) issue for the Seventh Circuit. Ordinarily, the court would have simply declared the case moot (as Judge Frank Easterbrook would have in dissent). However, two judges clearly felt that Judge Ellis needed a corrective measure on appeal for her future handling of such cases:

“The district court’s order may also spawn adverse legal consequences. Because the district court dismissed this case without prejudice—against the plaintiffs’ unopposed request for a dismissal with prejudice—any class members or the lead plaintiffs could refile these claims tomorrow. They could ask the district court to reinstate a near-identical preliminary injunction, adopting the facts and legal reasoning from the district court’s order.”

It reaffirmed that Judge Ellis’s order was  “overbroad” and “constitutionally suspect.”

It made clear that “federal courts do not exercise general oversight of the Executive Branch” and that the district court “likely abused its discretion by issuing such a sweeping injunction.”

The decision not to simply dismiss this case was clearly meant to send a message not only to Judge Ellis but also to other such judges who are exceeding their authority in seeking to limit Trump policies and programs.

Here is the opinion: Chicago Headline Club v. Noem