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Frimpong crimping ICE | Power Line

Last month This past California Federal District Judge Maame Ewusi-Mensah Frimpong issued a temporary restraining order more or less preventing ICE from operating in California’s Central District — the covering the seven counties of Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura. The counties’ population of nearly 20 million people is the largest of any federal judicial district in the country. I wrote about Judge Frimpong’s crimping of ICE in posts that are accessible here.

Heather Mac Donald takes up the case and the mysteries of Judge Frimpong herself in the City Journal column “Using a Double Standard on Race to Handicap ICE.” Subhead: “A federal judge ruled that agents impermissibly used race in questioning suspected illegal aliens—but she’s hardly color-blind in her own courtroom.” As one would expect from Ms. Mac Donald, it is an excellent column.

Mac Donald links to what she calls the government’s “emergency appeal” to the Supreme Court. The linked document is actually styled an application for a stay. The procedural background is addressed at pages 8-14. The government discusses the Ninth Circuit’s disposition of its request for relief, but it’s not clear to me that the Ninth Circuit even had appellate jurisdiction over Judge Frimpong’s temporary restraining order.

As a temporary restraining order, Judge Frimpong’s order is not appealable. Under 28 U.S.C. § 1292(a), a preliminary injunction would be appealable, but the defendants appear not to have formally responded to the pending complaints or to the application for a temporary restraining order. Temporary restraining orders are so preliminary in nature that Congress has not vested the federal courts of appeal with jurisdiction to hear appeals from them.

In its Supreme Court stay application the government refers to the TRO as an injunction and invokes the jurisdiction of the Supreme Court under the All Writs Act, 28 U.S.C. § 1651. The three-judge D.C. Circuit panel in the Boasberg case recognized the jurisdictional issue under similar circumstances. The three judges held unanimously that they lacked appellate jurisdiction over the TRO and granted the appellees’ motion to dismiss the appeal. The panel majority proceeded to take up the issues under under the All Writs Act and granted extraordinary relief (i.e., mandamus) to restrain Judge Boasberg himself. Judge Pillard challenges the propriety of the panel majority’s disposition under the All Writs Act in in her lengthy dissent.

The Supreme Court needs to exert control over an out-of-control district judge. Judge Frimpong herself needs to be restrained. The government’s stay application makes that clear. Judge Frimpong herself needs to be restrained. That is the issue raised by the stay application. How the Supreme Court will resolve it is not clear to me.

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