Seventh Circuit Slams District Court Judge in “Midway Blitz” Case

On Halloween, the Seventh Circuit issued an order in In re: Noem, telling a district court judge that she overstepped her boundaries by requiring an immigration chief to appear in her courtroom each weekday at 5:45 p.m. “to report on the use of force activities for each day.” While protestors are complaining about executive-branch overreach, they may want to examine the excesses of the judicial branch, too. 

“Operation Midway Blitz”

This all stems from “Operation Midway Blitz”, a massive ICE operation launched on September 8. 

As DHS describes it, Midway Blitz is intended to “target the criminal illegal aliens who flocked to Chicago and Illinois because they knew Governor Pritzker and his sanctuary policies would protect them and allow them to roam free on American streets.” 

“Governor Pritzker” refers to Illinois Gov. Jay Robert “J.B.” Pritzker (D), billionaire “heir to the Hyatt Hotel fortune”, Democratic Party heavyweight, and a long-time and vehement critic of the president’s “mass deportation” plans.

And “sanctuary” in that sentence is a descriptive phrase, not a knock: Illinois and Chicago are each on DOJ’s “Sanctuary Jurisdictions” list, the former thanks to its “TRUST Act” (which the state argues “helps bolster community trust and cooperation”), and the latter its “Welcoming City Ordinance” (arguing that “Partnering with ICE would go against” its “mission to make Chicago the most immigrant friendly city in the country and turn” the city “into a community of fear for immigrants”). 

Midway Blitz has resulted in 3,000 illegal alien arrests in Illinois and its environs (including 146 truckers at the Indiana State line), but it has also triggered any number of protests, some of which have turned violent – including one recently that resulted in a rear-end accident cum melee in suburban Evanston. 

Border Patrol Chief Gregory Bovino

The “immigration chief” referred to in the judge’s order is Gregory Bovino (pictured above, speaking with DHS Secretary Noem), technically Border Patrol Chief in the agency’s El Centro (Calif.) sector but at present the “commander-at-large” in charge of Midway Blitz.

He’s been in the Border Patrol for almost three decades, and is unapologetic about his recent duties, telling CNN: “We’re going to carry out that mission . . . And that’s paramount, or else we shouldn’t be here. We’re going to carry that mission out.”

Pritzker is firing back, contending he “refuse[s] to let Trump, Noem and Bovino continue on this march toward autocracy. . .. Their plan all along has been to cause chaos, and then they can use that chaos to consolidate Trump’s power.”

Did I mention that an alleged Chicago-area Latin Kings member, Juan Espinoza Martinez, has been arrested and charged by DOJ with placing a $10,000 bounty on Bovino’s head? 

The chief plainly elicits strong feelings. As Newsweek put it: 

Bovino’s approach to enforcement has been characterized by rapid, high-intensity operations, often referred to as “turn-and-burn” tactics. These methods have attracted criticism from local officials and civil rights groups, who argue that they disproportionately target immigrant communities and violate constitutional rights. 

Chicago Headline Club v. Noem

Nowhere have those feelings run higher, though, than in the U.S. District Court for the Northern District of Illinois (greater Chicago), locus of Chicago Headline Club v. Noem. 

The lead plaintiff in that case is “a non-profit membership organization of professional journalists working in the Chicagoland area with hundreds of professional journalist members”, and on October 6, it and others filed a complaint against DHS Secretary Kristi Noem, Bovino, and other officials over what they term to be: 

the right of the demonstrator Plaintiffs to exercise their First Amendment rights to peacefully protest and to exercise their religion in the area around the ICE facility in Broadview, Illinois, and in other places where demonstrators are opposing the Administration’s federal incursion into the Chicagoland area.

They complain “Federal agents have responded” to those “peaceful protests” with “a pattern of extreme brutality in a concerted and ongoing effort to silence the press and civilians”; on that basis, they sought a temporary restraining order (TRO) to stop those alleged abuses.

In response, DOJ contended the plaintiffs are actually seeking “to dictate crowd-control policy in ways that would tie the hands of federal law enforcement officers (‘LEOs’) even in circumstances of imminent danger and would risk bogging this Court down in micro-management of crowd control decisions by federal LEOs”. 

The case was assigned to district court Judge Sara Ellis, and apparently, she wasn’t bothered by “micro-management of crowd control decisions by federal LEOs”. 

That’s because on October 28, she issued an order requiring federal agents in Midway Blitz “to place an identifier conspicuously on their uniform where one can easily view it and the Agent’s equipment does not obscure it”, telling the government to “strive to ensure” agents carry body−worn cameras, and directing DHS to provide the court with “all CBP use of force reports relating to Operation Midway Blitz from” September 2 through October 25, and to continue to do so on an ongoing basis.

DOJ’s Petition for a Writ of Mandamus 

Most crucially, however, Judge Ellis also ordered Bovino to appear in her court “in person, week days at 5:45 PM”. That prompted DOJ to file a petition for a writ of mandamus and a stay of that requirement, which the department termed an “extraordinary and extraordinarily disruptive requirement,” with the Seventh Circuit.

Among other things, DOJ argued: 

The court’s order is . . . untethered to the plaintiffs’ underlying claims and goes substantially beyond what is reasonably necessary to ensure compliance with the court’s prior orders. And the order only underscores the extent to which the district court has exceeded its judicial role by arrogating to itself the role of supervising and micromanaging the day-to-day operations of an Executive Branch law-enforcement agency. 

As the Legal Information Institute (LII) explains: “A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion”. They are often sought in federal court when a party wants to appeal a decision but can’t. 

TROs are short-term orders and not generally subject to appeal, but if Judge Ellis issues an injunction along the lines above, expect it to return more formally to the circuit court.

“Two Principal Failings”

In any event, on October 29, the Seventh Circuit issued an administrative stay of the order directing Bovino’s appearance pending briefing, and on October 31, issued its formal order in the case granting the petition for mandamus. 

“While this litigation presents very challenging circumstances, the Seventh Circuit explained, “the district court’s order has two principal failings”: 

First, it puts the court in the position of an inquisitor rather than that of a neutral adjudicator of the parties’ adversarial presentations. Second, it sets the court up as a supervisor of Chief Bovino’s activities, intruding into personnel management decisions of the Executive Branch. 

“These two problems”, the circuit panel held, “are related and lead us to conclude that the order infringes on the separation of powers.” Waiting for an appeal “would not solve the problems created in the interim”. 

Tensions are running high in Chicagoland, with the plaintiffs alleging that after the judge issued her TRO, the government “appeared to simply ignore it”. Even if true, the district court can’t get pulled into the fray, because now more than ever we need “neutral adjudicators” to sort out the rhetoric.