- The Washington Times - Tuesday, January 1, 2019

Judge Rudolph Contreras says the issues at stake in an immigration detention case before him are too important to let something like a partial government shutdown ruin his schedule.

He ordered the Justice Department this week to stay on the case, despite the department having run out of money as of Dec. 22, forcing the lawyers who remain on the job to do so without pay.

Judge Contreras said that if the government can continue to detain illegal immigrants during the partial shutdown, it can find a way to keep lawyers on the job to argue over policies about who should be detained.

“In seeking several delays to date, the government has at times seemed to forget what this case is about: the allegedly unnecessary and illegal detention of young adults in restrictive detention facilities,” the Obama appointee scolded in a ruling Monday.

In an otherwise relatively painless shutdown, the court cases have emerged as one of the weirder quirks.

The federal courts say they have enough leftover money to keep running through Jan. 11, which means judges are working. But that’s not true of the country’s biggest law firm, the Justice Department, which has had to ask for stays of action in civil cases across the country, on everything from Obamacare to big immigration matters.

Most judges have been accommodating — but a few have gotten testy, insisting their cases are so serious that they need to plow ahead.

One of those big cases is in California, where a trial is slated to start next week on state and city challenges to the Commerce Department’s move to add a question on citizenship to the 2020 census.

“DENIED,” Judge Richard Seeborg, an Obama appointee, stamped in block letters on the request the Justice Department lawyers filed.

Justice said it hasn’t tracked how many times it has asked judges for a shutdown stay, nor does it have a batting average for how it’s doing with those requests.

The department also declined to comment on the requests, judges’ rulings or how it will staff the cases for which stays have been refused.

The Obama administration took a similar approach in 2013, during the last major shutdown. That one lasted 16 days, and it saw the Justice Department urge lawyers to “curtail or postpone” every civil case possible.

Then, as now, criminal cases proceeded without interruption.

In boilerplate language submitted to judges across the country, the Justice Department says it has no choice. Spending money outside of congressional appropriations violates the Anti-Deficiency Act. That law allows for an exception for “emergencies involving the safety of human life or the protection of property,” which is why Border Patrol agents, airport baggage screeners and FBI agents remain on the job even though their agencies lost money.

“Absent an appropriation, Department of Justice attorneys and employees of [the Department of Homeland Security] are prohibited from working, even on a voluntary basis, except in very limited circumstances,” the government petitioned in one immigration case.

That wasn’t good enough for Judge Randolph Moss, another Obama appointee in Washington, D.C., who like Judge Contreras has refused to stay an asylum policy case.

While saying he was “mindful” of the shutdown, he scoured the Justice Department’s own shutdown guidance and said 48 percent of employees in the Executive Office for Immigration Review remain on duty during a shutdown, as do 81 percent of Immigration and Customs Enforcement personnel and 91 percent of Customs and Border Protection staff.

Government lawyers dispute Judge Moss’s reading, saying in a filing in a separate case that Justice Department lawyers involved in civil matters are on furlough and are simply not allowed to work the cases.

Obama-appointed judges appear to be particular hurdles for the Trump Justice Department.

In addition to Judges Contreras, Seeborg and Moss, Judge Haywood Gilliam in California demanded an Obamacare contraceptives policy case keep on track, and Judge James Bredar in Maryland said a case involving federal oversight of Baltimore’s police department must meet its existing deadlines. Both are Obama appointees.

Other judges have been quick to grant stays, including the Democratic appointee-laden 4th Circuit Court of Appeals, which halted action in a major case involving President Trump’s business empire.

The appeals court is trying to decide whether to allow to stand a number of subpoenas issued to Mr. Trump’s business empire and to key federal agencies that have relationships or dealings with the Trump Organization, as part of a lawsuit arguing those business ties violate the Constitution’s emoluments clauses.

Stays also have been granted in cases involving the government’s new bump-stock gun rules, separation of children from parents of illegal immigrants at the border, and a number of open-records requests of major agencies.

That some departments and agencies did receive full-year funding, and are open, also has complicated matters.

Judge John D. Bates, a Bush appointee to the federal district court in Washington, D.C., rejected a stay request in a case in which New York is leading a challenge to the Trump administration’s plans to expand the use of association health plans to give Americans a choice other than Obamacare.

The rule was issued by the Labor Department, which is one of the agencies fully funded for 2019, and Judge Bates said given the current posture of the case, most of the work currently sits with staffers at Labor. He also said he read the Justice Department’s contingency plans and figures enough lawyers are still working that they can handle his case.

“The court recognizes and is sympathetic to the impact of the lapse in appropriations on the government’s operations. But where, as here, there is a ‘reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property,’ government functions may continue,” he wrote.

He did not say what the life-threatening or property interests are.

He did, though, grant a one-week delay for the government to compile an appendix in the case.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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