For the last several weeks, judges sitting in Chicago’s federal courthouse have largely sided against the Trump administration on questions raised by the aggressive immigration campaign that hit the city this fall.
But Tuesday, a federal appeals judge leveled blunt criticism toward a pair of rulings from U.S. District Judge Jeffrey Cummings, who extended a settlement agreement that governed immigration arrests here and then ordered the release of hundreds who had been detained.
The 7th U.S. Circuit Court of Appeals put Cummings’ orders on hold, and a three-judge panel from the court heard arguments Tuesday. It’s not clear how the panel will rule, or even when. But Judge Thomas Kirsch took clear umbrage with Cummings’ handling of the settlement agreement, which had been reached during the Biden administration.
“How could it be that one district court judge in the United States can entrench policy positions from one administration to the next?” Kirsch asked.
Judges John Lee and Doris Pryor joined Kirsch on the panel. They asked nuanced and technical questions that left it difficult to predict how things will ultimately play out, despite Kirsch’s criticism.
A Trump administration lawyer on Tuesday even signaled plans to go to the U.S. Supreme Court, if necessary.
The arguments revolved around what’s known as the Castanon Nava settlement agreement, which restricted the ability of U.S. Immigration and Customs Enforcement agents to make warrantless arrests in Illinois and nearby states.
The deal had been set to expire in May. But Cummings found in October that ICE arrested 22 people without a warrant and in violation of the deal, and he extended the settlement in the class-action lawsuit into February.
Then, in November, he ordered the release of hundreds of people arrested during the most recent deportation campaign in Chicago. He pointed to several people who had challenged their detention in separate cases in federal court, and he found them “highly likely” to be among 615 people who should be released, if they remain in the country and don’t pose a “high public safety risk.”
That number is now down to around 450, the panel was told Tuesday.
Justice Department lawyers have argued in court filings that Cummings’ orders are “legally indefensible” and would lead to an “en masse release” of people arrested over the past few months, including people they insist are subject to mandatory detention.
Lawyers advocating for the release deny that those people are subject to mandatory detention, though, noting that “hundreds of district courts have rejected” the Trump administration’s reading of immigration law.
Kirsch spent much of the argument Tuesday asking about the use of settlement agreements — or consent decrees — to bind the hands of future elected officials, including at the White House.
“What would prevent the current administration, in 2028, from going around the country, entering into consent decrees with a whole host of favorable parties to entrench their policy positions on the next administration?” Kirsch asked.
The judge pointed to a 1993 opinion from the 7th Circuit involving a consent decree that governed the payment of judgments by Chicago’s City Hall.
At the time, the court distinguished government from a private party and insisted that “democracy does not permit public officials to bind the polity forever. What one City Council enacts, another may repeal; what one mayor decrees during his four-year term, another may revoke.”
Kirsch told lawyers Tuesday he was “shocked” that Cummings’ order “mentions nothing about this.”
“It treats the consent decree as if it’s a contract between two private parties,” Kirsch said. “It’s not. It’s simply not.”
Kirsch said the appeals court “could not have been clearer” in the 1993 case that there must be a “rule of federal law” to extend the settlement.
Keren Zwick of the National Immigrant Justice Center tried to point to such a law, but Kirsch wasn’t convinced. Zwick wound up telling Kirsch, “I don’t think that your reading is a fair one, of what Judge Cummings was doing.”
Kirsch continued with his complaints as the argument went on, noting that Cummings sought in November to release “potential” class members in the lawsuit, without determining whether they actually belonged in the class.
“He just determined that they were a potential member of the class and released them,” Kirsch said.
The arguments lasted a little less than an hour, and the panel left with two orders of Cummings’ to review — the ones from October and November.
Before Tuesday’s hearing wrapped, Kirsch got Zwick to acknowledge that, if the panel puts a longer-term hold on the order from October that extended the settlement agreement, it would likely need to do the same with the November order.
That’s the one seeking to release hundreds of people held by immigration authorities.