This is Bloomberg Law with June Grossel from Bloomberg Radio.
James Boseburg, the chief Judge of the US District Court for the District of Columbia, has been at the center of the Trump administration's.
Efforts to deport accused.
Venezuelan gang members under an eighteenth century wartime law, the Alien Enemies Act. He's also been at the center of the administration's attacks on the federal judiciary. Attorney General Pam Bondi has repeatedly criticized Boseburg.
This judge has no right to ask those questions. You have one unelected federal judge trying to control foreign policies, trying to control the Alien Enemies Act, which they have no business presiding over. This judge had no right to do that. They're meddling in foreign affairs, They're meddling in our government. And the question should be why is a judge trying to protect terrorists who have invaded our country over American citizens, And then, of course Boseburg trying to
control our foreign policy. These judges are out of control. We are going to fight back, and we are going to win.
President Trump has called Boseberg a radical left lunatic of a judge, a troublemaker and agitator, even calling for his impeachment that led to a rear rebuke from Chief Justice John Roberts in March. Now the Justice Department is escalating its fight with Boseburg. It's filed an ethics complaint accusing the judge of misconduct. My guest is constitutional law expert David super, a professor at Georgetown Law. David, why has the administration been focusing so much on Judge Boseburg?
Well cass are assigned to district judges randomly. Judge Boseberg have the misfortune of drawing the first case in involving the Trump administration's bizarre application of the Alien Enemies Act in a non wartime situation, and he did what any component judge would do, which is declared illegal.
The complaint focuses on a March session of the Judicial Conference of the United States, a panel of judges led by Chief Justice John Roberts. The Justice Department accused Boseburg of raising quote concerns that the administration would disregard rulings of federal courts, leading to a constitutional crisis, and said his comments violated a section of the Code of Conduct for federal judges, which says that they should not make any public comment on the merits of a matter pending
or impending in any court. If he did, in fact say this, is it at a bounds for a judge at a meeting that's supposed to be private to say something like that.
No, of course not. This complaint doesn't pass the last test. It's not a public statement if the statement was only judges present. I would love to attend meetings to the Judicial Conference, but I'm never invited. I'm sure you would too.
It's a private meeting. By this reasoning someone should bring a complaint against Justice Alito or indicating that he thought Rovy Wade should be overruled in circulating his draft opinion in Bobbs, which later became public, Judge Boseburg is not responsible for other people leaking memos about things he said in private meetings among judges any more than Justice Alito would be responsible for the leak of his draft opinion that he shared with other justices.
In the complaint, the Justice Department also says that Judge Boseburg had no basis for saying that because the Trump administration has always complied with court orders, but the administration violated Boseberg's verbal order in this very case.
Judge Bozberg's role on the judicial conferences as a representative fative of district judges in the District of Columbia, he is responsible for reporting what judges on his court are concerned about, and it would be at their election of his duty if he didn't report concerns that they had.
Judges on his court had found the administration to be out of compliance with a number of court orders by administration officials, certainly including the Vice President, arguably including the President, had mused about whether they would honor court orders on various topics, even Supreme Court orders, certainly orders of district courts, and the question of how to deal with the administration violating court orders had already been up and down to
the Supreme Court by that point. Obviously it was something they were concerned about. He was not, as we've been told, expressing his own views, but rather the views of other judges on his bench. I'm sure at other times the chief Judge of the District of Columbia may have reported that they feel inundated with bent in all cases where they feel inundated with crystal meth cases. This is a place where judges talk about the challenges of maintaining the judiciary.
He was doing exactly what he was supposed to be doing.
Is it concerning that apparently a memo of the meeting was leaked to the conservative website the Federalist.
Well, the Judicial Conference is representing judges and business about it, so memos of what happened at this meeting do get circulated to judges. President Trump has made a point of appointing members of the Federalist Society to the Judiciary, so many Federalist Society members received this memo and one of them apparently chose to leak it to the Federalist.
It's also in isolation. They just took about his comment. There must have been some kind of discussion that followed that, or some remarks and response, but it's just isolated to this one comment that he made, which is unusual.
Well, it is, and they describe his comments as being uncalled for, but they don't give us any context to suggest.
That they weren't.
And again, Judge Bosberg's role there was to bring to the Judicial Conference concerns by judges on his court and judges reacting negatively to administration officials and Republican senators suggesting that they disregard court orders would be an obvious thing to discuss. He doesn't indicate what the point of the agenda was, what prompted this, or what anyone else said afterwards. Moreover, the Code of Judicial Conduct prohibits comments on the merits
of the case. This is not a merit issue. This is an issue about what does the court do when it has decided the merits and one of the parties doesn't comply.
The Justice Department also complains about his handling of the case involving the alleged Venezuelan gang members, saying he rushed the government through complex litigation, sometimes giving the Trump administration less than forty eight hours to respond.
Well, the rushing was by the administration. The administration could have agreed to suspend flights until this matter was litigated, and the parties could have submitted their papers in due time. The administration was in physical control of all of these people.
It had no need to send them to Alfalvadore. It chose to do it in a great hurry, and that led to a quick response from Judge Bosebury, many judges would not have given the administration any operatity to respond at all when enjoining a crisis that was entirely of that party's making. Judge Boseburg bend over backwards to be considerate of the administration and to accommodate the schedule, which they insisted was very urgent, even though they never explained why.
If you have a problem with the judge handling your case, does a litigan file a misconduct complaint or wait for the appeal.
If what the judge does is sufficiently egregious, you can file a misconduct complaint. It's not out now then appropriate. But what Judge boseverg here did doesn't mean any of the requirements of an improper act. It wasn't public, it wasn't on the merits, and wasn't prejudicial. So the normal procedure would be either to appeal or in some instances,
to move for the judge to be recused. But the standard even for recusal and for appeal is much much higher than this, and the standard judicial misconduct is higher still.
You said doesn't pass the left test. What do you expect to happen here?
In a normal world? The Chief judge of the DC Circuit would dismiss this outright, because this comes from the Justice Department and from an administration that has been exceedingly vindictive and is cost lines that none of its predecessors have in criticizing sitting judges. The chief Judge may refer it to a panel, but those judges would then dismiss it.
We've talked before about this.
This is the latest in a string of confrontations of the Trump administration with the federal courts. They filed a misconduct complaint in Fbruary against another DC federal judge, Anna Reyes, accusing her of hostile and egregious misconduct for her sharp questioning of government lawyers in the case on the Pentagon's
attempts to ban transgender people from military service. And last month they suit every judge in Maryland over a standing order that blocked the immediate deportation of migrants, challenging their removal for two days.
Is there a strategy here?
Well, certainly, the strategies to intimidate federal judges the public criticisms of them, which have led reportedly to spikes and death threats, is part of this. A suggestion that they don't have to follow them, the characterization of them as radical leftists. Some of the judges they've called radical leftists
were appointed by Ronald Reagan, but no mind. So this is all part of a broader strategy to delegitimate the courts, to have people not believe that the courts can determine the law, and they have people do entirely what the government says. That's the path of the dictatorship.
How unusual is it for the Justice Department to file a complaint against a federal judge? In the past, under other presidents have justice departments taken this course.
Almost never, and a good example of that is the behavior of Judge Cannon in one of President Trump's criminal cases. A number of her rulings were very strange, sometimes self initiated, rulings in favor of mister Trump, and the Justice Department, though it.
Had plenty of grounds.
Didn't even move to recuse her, much less vile a judicial misconduct complaint. The ordinary views of the Justice Department has a strong interest in public respect for the judiciary and doesn't want to undermine it. This administration obviously feels differently, and tell us.
A little about Judge Bosberg's reputation.
Judge Boseburg's an extremely thorough, extremely smart judge. He basically gives you what you get. If you give him a serious argument, he'll either ruin your favor or give you a careful, analytical reason why he won't. If you give him a silly argument, he will say so and not dignify it with a lot of extra words. He's very
hard working, very attentive to the law. He's ruled in the Trump administration's favor on a number of matters, including involving the Alien Enemies Act, because he felt the law was in their favor. He's not a partisan.
And by the way, the DC Appellate Court has not yet addressed the complaint against Judge rey As for her sharp questioning of government lawyers.
I will point out that the standard was that lawyers shouldn't be sharply questioned. They are only about two judges I ever practiced in front of that. I couldn't have filed misconduct complaints.
Again, you have to have a tough skin if you're going to be a litigator. Always a pleasure, David, thank you. That's Professor David super of Georgetown Law. Coming up next. A bload to labor judges. This is Bloomberg. The Third Circuit Court of Appeals has found that the Labor Department's internal agency judges don't have the power to hear enforcement disputes over the H two A visa program for seasonal
farm workers. It ruled in favor of a New Jersey farm that was trying to overturn more than a half million dollars in penalties by arguing that the Labor Department's judicial system was unconstitutional under Supreme Court precedent, the decision could have broad ramifications. Joining me is constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law, hel tell us about the challenge to the fines here.
The tourture case concerned administration of the H to A visa worker program, which is designed to bring in seasonal workers from out of the country to help with orchards in this case, or farms, or it could be entertainment complexes where there's not enough US domestic workers. And the
program is a win win. It helps US industries and it helps people from outside the borders get a little taste of the United States and earn some money at the same time, and so In this case, the Department Labor alleged that Sun Valley Orchards had violated the requirements of the program in many ways, requiring twelve hour working days, providing inadequate water supplies, inadequate bathroom breaks, and so far.
And so they decided to bring an enforcement action, which ended up being hundreds of thousands of dollars in fines, as a way to punish Sun Orchards, also to give some kind of compensation back to the workers, and at the same time send a signal to others who were using seasonal workers through the H two A program. And so this case raised the question then of could this
enforcement action be brought within the agency itself. And this comes on the heels of the Supreme Court's decision in the JERKXI case, which surprisingly limited the types of cases that can be brought before agency tribunals. And all the court appeals are struggling with these cases now because the Supreme Court did not make a very clear distinction of what type of enforcement claims can be brought before the agency and which have to go to court with a jury.
And that's a huge consequence because if you have an enforcement action before court with a jury, it's slower, it's more expensive, and as a result, agencies can bring fewer enforcement actions and they will have to pick and choose. So this case comes on the heels of many now across the country struggling with challenges to agency enforcement actions, trying to figure out which side of line do they
fall on. Can they be brought before the agency or does the agency have to go to court with the jury trial and bring the action there.
As you mentioned, going a trial is expensive. Why do employers prefer going a trial to having an administrative law judge decide the case?
Well, there are several reasons. I mean, one is they think that with some credibility, they think that the ALJ and the agency which will then decide the case may well be biased against them. Some limited data bears us out not conclusive.
But there's some data.
But on the other hand, they think that the agency won't be as likely to bring the action if they have to spend so much money on enforcement. So in any given case, the goal would be to go to court because it takes longer and the agency may not be able to expend the resources to see it through.
Here, the oral arguments hinged on a public rights exception in the Jocracy case.
So what the the people held in Charcracy was that it limited what we understood to be the public rights doctrine. The public rights doctrine suggested that the Seventh Amendment and those kind of key rights that everybody enjoys in terms of going to trial and having a jury of your peers be a protection doesn't apply if the issues between
the government and a private individual. That was our old understanding of the public rightstock and so that if Congress set up an administrative scheme with penalties for dangerous workplace or in this case, you don't treat your employees right, or another case it's dangerous chemical storage or privacy violations of the Congress sets up that scheme, it can choose whether to have enforcement in an administrative agency if it wanted to, because it had to do with a non
common law right of action that Congress has created, and therefore can decide to use the instrumentality or mechanism of an administrative agency to adjudicate it. That was the prior understanding. The Supreme Court in Geocracy cut that back, but we don't know exactly how far they really said. Two different
things difficult to reconcile. The first they said, if there is a close common law analog to the action, even if Congress has created a new one, if it looks like a common law action, then the jury trial right remains. And so in the Chocracy case itself, it was a fraud action against people who had tried to swindle people under the securities laws, and so the court there said, this looks like a common law fraud action. It has
to go to a court. And most of the courts of appeals that have been resting with this look at that line and try to see how close to a common law action does this particular issue exist in terms of whether or not the enforcement can be placed in a court or in an administrative agency.
So Rob Johnson, a senior attorney at the Institute for Justice and counsel for Sun Valley, told Bloomberg this decision means that employers facing penalties for H TWOA violations can now demand a jury trial in federal court. Is that true for all violations or certain violations.
Probably all violations of the H two A program. This doesn't cover, of course, other administrative mechanisms. And indeed, the Third Circuit has gone the other way in a separate case, but he's right with respect to this particular mechanism for
seasonal workers. The court held that the particular enforcement looked like a common law contract action because of the fact that under the program, in essence, the Department of Labor enforces employers to provide certain contractual services to these seasonal workers.
And so the court held that even though interestingly enough, this arises in an immigration type of context, because we of this pseudocontractual underlying requirement that all infractions have to go to court, and you know, turning the lens the other way, we know that, in fact, the Supreme Court in indocracy itself said the immigration context is different and therefore the Congress should have more plenary authority decide where
immigration violations should be brought. But the Third Circuit decided, even though this arose in an immigration type context, the real essence of it is a kind of pseudocontractual relationship between in this case, the orchard and the seasonal workers, and therefore that any infraction had to be brought before a jury trial in the Federal District court.
The implications of this case, how far reaching are they? I mean, could it potentially impact other agencies that handle enforcement actions.
Well, there's a number of cases now that are percolating around the country in the wake of darctracy, just to see where the line should be brought. We know that much of the mechanism of agency enforcement has been crippled now because of the jocracy decision that instead there'll be fewer cases because they have to be brought in just a courts. And the question is how to figure out which cases had to be brought in court in which
cases have to be blought before the agency. So to show the other side of the coin, the Third Circuit itself, in a different case just a couple of months ago, decided that finds for not storing hazardous materials correctly, that that could be fines could be blought before the agency.
They're a paint company allegedly had not stored dangerous materials carefully enough, and the court in that case under the Federal Aviation Administration had decided to bring again the action before its own agency, and there was a challenge to it.
But the Third Circuit said that this civil penalty action is okay to proceed before an agency because hazardous waste regulations didn't exist of common law, and even though in some ways all this was was a super negligence action, the court in that case, again the same Third Circuit as in the Orchard case, decided that an enforcement nation
before an agency could go ahead. So these two cases within one circuit illustrates how the line suggested by the Supreme Court intocracy is almost impossible to apply evenly, and so all the courts of appeals are in disarray in how to limit the ability of the public rights doctum to exist, and which case is the funnel to the sederal district courts and which can continue on before the agency tribunals.
The panel consisted of three judges, all appointed by Republican presidents.
Do you think that made a difference.
And should they try to appeal to the full circuit, which is more evenly balanced the full third Circuit?
You raise a great point. I mean, I think that this is a politicized issue, not in most people's minds, but it is in terms of certain kinds of sort of judges with an anti regulatory bias, and even members of the Supreme Court have held that there should be no agent see enforcement tribunals at all. I mean people like justice course such in particular, and judges with that kind of bias, and they could be Republicans, maybe some Democrats.
Mostly Republicans would tend to find almost no case appropriate to be brought before an agency tribunal, with probably some exceptions as for immigration, foreign affairs, et cetera. So to a certain extent, they supolicized. I don't think it's exactly the same fault lines as we think of in terms of pro Trump or anti Trump, but certainly it is in terms of anti regulatory Republicans versus others with a
different bet. So this case, because of the split in the third Circuit of one of these cases that we've discussed, may go to the Supreme Court, because the Supreme Court really does need to clarify the extent of jocracy and when the stem of amendment, in other words, eclipses an agency's ability to have an enforcement action.
If you're in favor of agency actions and power, do you really want to go to the Supreme Court? Again, we want this to go to the Supreme Court.
I think within the Trump administration itself, there has not been a clear signal of what the Trump administration's position will be, So the Soitser General will have to sift through these cases and decide what their position is. And they've made announcements about other administrative law issues, you know, principally with the respect to removal of officers, but they've been silent with respect to the breadth of dracracy, So
we don't exactly know their position. One would think they might decide to strip their own agencies of power, but they haven't done that. So they're obviously probably a little bit ambivalent about stapping their own agency's power to have these enforcement actions before their own agencies. So that's the decision they'll have to make, and they haven't sent a clear signal yet.
I guess your priorities can change depending on whether you're the one in charge of the agency you're not, thanks so much, how that's Professor Harold Krent of the Chicago Kent College of Law. Coming up next on the Bloomberg Law Show. A controversial Trump nominee wins a lifetime appointment to the Third Circuit. I'm June Grosso and you're listening to Bloomberg the Tenth Circuit Court of Appeals. Here's cases
from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Currently seven judges sit on the Tenth Circuit, seven appointees of Democratic presidents and five appointees of Republican presidents. But the US Judicial Conference apparently thinks that's too many judges for the circuit. Joining me is an expert in the federal judiciary, Carl Tobias, a professor at the University of Richmond Law School.
Carl Inner report the Judicial Conference agreed to recommend that the President and the Senate do nothing next time a seat opens up on that Denver based tenth Circuit. Why did they make that recommendation.
They do this biennial survey of judge ship needs, and they look at workloads in appellate district courts with consistently low per judge ship caseloads to see whether they can make this recommendation. And here I guess they found that the tenth should not do that fill that judge ship and some other district courts too, and they, you know, they promise it on very conservative estimates of caseload and workload.
But I think in the past, actually the President and the Senate have ignored those requests from the Judicial Conference, even though the data show that they don't need all the judges just because they don't want to pass up the opportunity to fill a vacancy.
In his first term, President Trump ignored this, and President Biden also ignored this. I mean, the way judicial appointments have become so much more political recently, it seems unlikely that any president is going to pass up a chance to appoint any circuit court judges.
That's right exactly. I think there's no question about it. And the presidents believe that most of the policy is made at the appellate level for multiple states within a particular appeals court, and so it's a lost opportunity if you don't capitalize on it. So I have every expectation that this will be ignored.
Don't the workloads of circuit court judges change over the years. I mean, if you take it away this time, might you have to put it back another time?
Well? You might, But again, I think they're pretty conservative about their estimates, and they've been doing it over a long period of time, so generally they're pretty accurate about that. And there aren't huge swings in the appellate case loads. I don't believe, And you know, increasingly in the appeals courts, you're not getting full dressed opinions, they're not providing oral arguments. All of those are fewer and fewer, and the staff
does a lot of the work. There are many people who you know, clerks and other people who to look at the cases rather than give them full treatment. You know, they just had to do trioze because they need more resources. But Congress is not going to provide more judge ships.
It doesn't look like it. You know, they have the bill I think came out of committee in March, the one that you know was on the floor in twenty twenty four, but Biden said he wouldn't sign it because it was after Trump's election, and so it was reintroduced on the House side and it has I think passed there, but no action in the Senate. So it may be that that Trump will get twenty two more district seats in the first tranch if it passes, and they may push it.
That doesn't need just a simple majority or more best the Senate.
That's a good point. In the Senate, I believe it would need sixty votes to get cloture, and so not clear that they would have that that was the beauty of the Senate passing it last time was before anybody knew who was going to have a Senate majority and who would be the president. And so that's the time to strike, you know, in the election year, like in twenty twenty eight, because then no one can predict what's
going to happen. And once the Republicans knew that Trump had won and they had a majority, and of course they were happy to sign on. The House had not passed it at that point. You know, Biden was within his rights to then say no, I'm not going to sign that because you had an opportunity and you didn't take it.
Well, I think it's the biggest fight over judicial nominee in Trump's second term so far. Over Emil Beauvey, his former personal criminal lawyer, as well as now in the Justice Department, and the Democrats really tried everything about to try to stop his appointment.
They devote a lot of time and resources.
They stormed out in protest out of the Judiciary Committee when the vote was on, They had whistleblowers ready to come forward, and yet it still got through. So what does this show you about future nominees? I mean, there was so much opposition to Bouve from different parts of the legal community.
Well, that's right. I mean there was there were seventy five or so retired state and federal judges who said that the Senate should not confirm him, and there was a fair amount of evidence, and the hearing was one where I think Bouvy was not very forthcoming and he refused to answer a number of questions and seemed evasive about others. And as you suggest, there was a lot
of pretty strong evidence that was just never heard. They really asked for these whistleborrowers to be allowed to come in and give their testimony under oath, but it didn't happen. And in the markup when they were discussing the nominee, I think there was a real question as to whether the vote for bov was valid at the time because they didn't have two members of the minority. There was Booker by himself trying to harangue the rest of the members,
and they just voted on through. And so I'm worried about the process going forward. What are we going to see when you only have five minutes to ask questions
the hearing, and that's not much of an opportunity. And I noticed the first circuit and ninth circuit nominees acted a little bit like bov in the sense that they were not answering questions, saying they were too political or it wasn't appropriate for a nominee, and then also being pretty evasive and not really answering the questions, and the same thing the district nominees. So I'm concerned about the process that we saw, and it was particularly troubling with
Bowie's confirmation process. They used to give a second round if it were a really important position, and that probably should have done it in this situation, and it would have made the Democrats at least feel better and they could have asked more questions, but they didn't.
Grassley has been supportive of whistle blowers, and yet he refused to allow them to testify, and I just wonder what would the harm have been in allowing them to testify it.
Well, I think they were concerned about what the whistleblowers would have to say, even though it would be under oath and so they would have to tell the truth. That's very unfortunate that something didn't happen to allow them to come forward. And I think Grassley was concerned, of course, because he has been a supporter of whistleblowers, but in this situation, it was just too charged, apparently even for him,
and so I didn't let it happen. And Democrats, you know, and Booker especially were very troubled and suggested that they should have a special hair they rejected.
I don't know of another case I've seen in my fourteen years in the Senate where someone so unqualified for the benches before us.
So I often.
Wonder when you have these kinds of really contentious nominations, what happens when that person gets on the Circuit Court?
I mean, is there any blowback?
I think judges try to be collegial with the people they're working with, because you know, they're always going to be sitting on three judge panels except when they're on bod and you have to be able to work with colleagues whose views you don't always agree with. And so I think the judges of the Third Circuit are pretty welcoming group and will do their best to help bovy,
acclimatee and be a productive member of court. I've seen that happen, even though the particular judges you know have very different perspectives on judging and substantive issues and all of that, just because it only can work if everybody works together, and both together, because there's plenty of work
to do. I think, you know, Booker was particularly concerned because the White House didn't consult on the nomination with the Home State Senators in any meaningful way, and we heard that same took play for the first in the night, and so that's unfortunate because at least there should be some you know, interaction between the White House Counsel and the Home State Senators and so that needs to be reinstated and done because they don't have the blue slips.
I wonder if you saw that the President Tuesday night posted on x jaw boning grastly to get rid of the blue slip and criticizing Republicans for retaining it, and Grassly pushed back at the hearing day to say, we're retaining the blue slips for districts and for US attorneys because they protect the prerogatives the Home State senators and
the people who they represent in those states. And that's been Lindsay Graham's view as chair and ranking member, and so I think that will go forward, but of course Grassley also instituted the circuit exception for blue slips, and so Booker and Kim didn't have any opportunity to hold back the blue slip for a Bobe.
Grassley said he was offended and disappointed by President Trump's social media post. I mean, if there's more critique from Trump, he has all these US attorneys that are being held up because he can't get home state senator approval. I wonder how long this opposition to Trump's suggestion will last.
I think he's a person of his word, and I think he has worked very well with Urban when they were either ranking member or chair and alternated. And I think he'll stick by that because you know how important it is, and Graham will back him up. I think it's not going to happen, and it benefits the minority party, and they know what goes around comes around, and they often say that, and you never know in the Senate because it's so close who is going to win the
next midterms or the next majority. And so it is important because otherwise you have situations where the home state senators don't have an opportunity to make their views known. And that's unfortunate because they have to be responsible to the voters and so they are concerned about that. But I think Grassley will will be strong on this, and I'll have plenty of support, certainly from the Democrats, but maybe some Republicans as well.
I'll put that in the column of we shall see. Thanks so much, Carl. That's Professor Carl to Buy of the University of Richmond Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg