The government’s failure to comply with court orders has been a theme of Donald Trump’s second term as president. The question has been what judges can do about it.
The answer may be to hold government officials and lawyers in contempt — or at least threaten to do so.
Underscoring the dire state of the rule of law in this country, Minnesota’s chief federal district judge last month set a hearing for the acting head of U.S. Immigration and Customs Enforcement to explain why he shouldn’t be held in contempt, after the government failed to comply with an order to provide an immigrant a bond hearing or release them from custody.
The judge, Patrick Schiltz, acknowledged that he was taking an “extraordinary step” in the case of Juan Hugo Tobay Robles. But he explained why he felt the need to do so: The “extent of ICE’s violation of court orders is likewise extraordinary, and lesser measures have been tried and failed.”
Yet, the acting ICE chief, Todd Lyons, was never held in contempt. The government complied with the judge’s order before the hearing, thus rendering his appearance moot.
An extraordinary order shouldn’t have been needed to make the government comply with the law, as ordinary people must do, but apparently that’s what it took.
Highlighting the scope of the problem, Schiltz, who is a George W. Bush appointee and former Antonin Scalia clerk, wrote that the government’s eventual compliance in that one case didn’t eliminate his concern, because ICE had just violated a whopping 96 court orders in 74 cases.
The judge wrote that the list of violations, which he noted likely was incomplete, “should give pause to anyone — no matter his or her political beliefs — who cares about the rule of law.”
Yet the government continues to violate the law it’s tasked with enforcing.
The latest bold judicial response in Minnesota came this week, when a judge ordered a Trump government lawyer to be held in civil contempt. Such contempt is used to force compliance, whereas criminal contempt punishes violations.
The civil contempt order came in yet another immigration-related case, with U.S. District Judge Laura Provinzino saying Wednesday that, starting Friday, Special Assistant U.S. Attorney Matthew Isihara would have to pay $500 for each day that Rigoberto Soto Jimenez is not in possession of his identification documents. “For avoidance of doubt, the coercive fine will continue until the certification of compliance is filed on the docket,” the Biden-appointed judge’s order said.
Earlier this month, the judge had ordered the government to release Soto Jimenez from custody in Minnesota and return all his property to him. Then on Tuesday, she set a Wednesday hearing for the government to explain why it shouldn’t be held in contempt for violating her order, including for its failure to return his property. It was after that hearing that the judge issued her civil contempt order, which focused on the return of identification documents.
Later Wednesday, Paul Blume of Fox 9 in Minneapolis reported that Soto Jimenez’s lawyer said the government had given her client an overnight delivery tracking number and that the lawyer believed his identification papers would arrive on Thursday, nullifying any fines.
If that’s how this one ends, then it will have been another instance of the government doing what it had to do all along but only in the face of contempt consequences. That shouldn’t be necessary to run a legal system, but the contempt tool is there for a reason — and this administration is giving judges every reason to use it.
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
