Obama Appointed Judge: Maybe I Lack the Power to Overrule the White House Nationwide?

Nearly two weeks ago a federal judge in California, William Alsup, ordered the Trump administration to rehire thousands of probationary government workers who had been fired in February as part of a government downsizing effort. That ruling applied to six agencies: Veterans Affairs, Defense, Energy, Interior, Agriculture and Treasury.

Later the same night a second judge in Maryland ordered the rehiring of even more probationary employees at a different collection of agencies.

The agencies covered by U.S. District Judge James Bredar’s sweeping order, issued Thursday night, include the Departments of Agriculture, Commerce, Education, Energy, Health and Human Services, Homeland Security, Labor, State, Transportation and Treasury, among others.

Bredar’s order sweeps even more broadly than a ruling earlier in the day from a different federal judge, who directed six Cabinet departments to immediately rehire probationary employees who were fired under President Donald Trump’s plan to cut the federal workforce…

Bredar’s ruling came in a lawsuit brought by Democratic state attorneys general…

Alsup’s ruling is in place indefinitely, while Bredar’s is slated to last 14 days, but could be extended.

The two week time limit on Judge Bredar’s sweeping nationwide order is set to expire tomorrow and today the judge is wrestling with whether or not his order should apply in states that never joined the lawsuit brought by Democratic AGs.

A federal judge who ordered the Trump administration to reinstate nearly 25,000 fired government employees said on Wednesday that he could narrow his ruling to workers based in Washington, D.C., and the 19 mostly Democratic-led states that sued over the mass firings.

U.S. District Judge James Bredar during a hearing in Baltimore, Maryland, said he was concerned that he lacked the power to issue an order affecting states that are not involved in the lawsuit.

“This court has great reluctance to issue a national injunction,” Bredar told a lawyer from the Maryland Attorney General’s Office. “That doesn’t mean the court won’t issue one in this case — you’re going to have to show me it’s essential for remedying any harms that your clients are specifically experiencing.”

A federal judge questioning the limits of his own power to overrule the White House? That feels like a first. Politico has more on the judge’s hesitation.

“This is a critical issue,” said Bredar, an appointee of President Barack Obama. “Most of the states in this country have not joined this lawsuit. … You can see the spot that I am hung up on.”…

“I’m of the view that sometimes a nationwide injunction is entirely appropriate, and there are circumstances where that is crystal clear. This isn’t such a situation,” Bredar said. “I’m very sensitive to the issue that judges should not step beyond the authority that they have been explicitly granted. At the same time, judges have a responsibility to remedy the harms that are properly before them and to not shrink from doing that.”

This isn’t merely an academic question in this case. The states who had the most probationary government workers impacted by the firings were DC, Virginia, California, Maryland and Texas. Virginia and Texas didn’t join the lawsuit. A DOJ lawyer representing the Trump administration argued a nationwide injunction made no sense when the majority of states didn’t join the lawsuit.

Justice Department attorney Eric Hamilton said the administration believes the firings were lawful and that they did not constitute a “reduction in force” under applicable law and regulations. But he was most emphatic in opposing the judge prolonging his nationwide directive.

“There can’t be a nationwide injunction here where 30 states have decided against litigating at all,” Hamilton said.

Even if Judge Bredar decides it’s appropriate to limit the scope of his own power in this case, there’s still the ruling from the other judge in San Francisco. The Trump administration asked the Supreme Court to block that judge’s nationwide injunction on Monday.

The Trump administration asked the Supreme Court on Monday to allow it to follow through with its attempt to fire thousands of probationary workers across the federal government.

The administration filed an emergency appeal of a March 13 ruling from U.S. District Judge William Alsup, who ordered the government to immediately rehire probationary workers who had been terminated at six federal agencies.

Judge Alsup, a Clinton appointee, apparently did not see the need to limit the extent of his ruling.

As for Judge Bredar, he extended his injunction from tomorrow until April 1 to give himself time to decide whether it should be limited or nationwide.

With two rulings that conflict on which agencies and potentially on which states are impacted, this seems like an issue the Supreme Court might want to take up eventually. We’ll have to wait and see if they do that now or decide to wait.