President Donald Trump and first lady Melania Trump attend a Halloween event with families on the South Lawn of the White House, Thursday, Oct. 29, 2026, in Washington (AP Photo/J. Scott Applewhite).
A high-profile attorney told an appellate panel that the Trump administration’s sudden discovery of a “highly attractive tool” to sue a whole federal court and its judges in Maryland is “strong” evidence that “power doesn’t exist.”
A three-judge panel on the 4th U.S. Circuit Court of Appeals began early Friday morning, peppering the DOJ’s Sarah Welch with questions about one of the administration’s most controversial and thus far unsuccessful maneuvers.
U.S. District Judge Thomas Cullen, a Donald Trump appointee, in August 2025 declined to entertain the merits of the government’s “novel and potentially calamitous” lawsuit, which claimed a court’s standing order amounted to a judicial usurpation of the administration’s immigration enforcement agenda.
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Chief U.S. District Judge George Russell III of the District of Maryland had issued a standing order for two-day stays in habeas corpus cases due to the “influx” of petitions.
Rather than appealing the standing order or lodging a complaint with the Judicial Council of the 4th Circuit, the DOJ sued each of the judges on the court, the court itself and its clerk.
Cullen quickly found the government lacked standing to sue, that judicial immunity protected the defendants, and that even if the judges weren’t immune, the suit would fail “in its entirety” because it did not state a claim.
In the aftermath, the DOJ asked the 4th Circuit to vacate its loss, claiming that the Maryland court’s amendment of the challenged standing orders made the case moot. But the court declined to do so, instead setting oral argument.
U.S. Circuit Judges Stephanie Thacker, A. Marvin Quattlebaum and DeAndrea Gist Benjamin — appointed by Presidents Barack Obama, Donald Trump and Joe Biden — pressed Welch for answers about the DOJ’s reliance on the case in re Debs of 1895.
The DOJ asserted that Debs empowers it to “enforce in any part of the land the full and free exercise of all national powers,” providing an avenue to sue for equitable relief without requiring an explicit statutory cause of action, even against the judiciary.
“First, I’d like to push back on the idea that there’s a limited set of Debs actions or that they’re not particularly important to the United States,” Welch said. “They have been brought since the earliest days of the Republic.”
Quattlebaum wanted to understand whether “there are limits” — “even aside from whether they can be brought against the judicial branch” — to a Debs action. He alluded to legal scholars who say “true Debs cases” are anchored in “patents and property rights.”
“If that’s true, this seems to be perhaps outside that, even if you can bring it against the judicial branch,” the judge said.
“I do think that is an incorrectly narrow view of the Debs action and how it has developed and continues to be applied today,” Welch responded, citing a case about the amount of water being drawn from Lake Michigan. “They reach far beyond interests that the United States has as a property owner.”
Thacker jumped in here.
“But this is against an entire court. This is the executive against the judicial branch. I don’t see a limiting principle to your position in that regard,” she said. “Why couldn’t the United States just evade judicial review any time it wanted to — and didn’t like a court’s ruling or a court’s orders — by suing the entire court, as it did here?”
“Any order, like this standing order,” Thacker continued, “why couldn’t it just sue the 5th Circuit, for example? You could under your theory.”
“Our court has a standing order similar to the standing order in the District of Maryland. What’s to stop the executive from suing the 4th Circuit?” the judge asked again.
The DOJ attorney said the “difficulty there” is asking a district court to review an appeals court action.
“I think the first one that were to attempt that would have to overcome that obstacle,” Welch said, again arguing that the appeal should be dismissed as moot but that the lower court decision should be vacated.
Former Bush administration U.S. Solicitor General Paul Clement appeared on behalf of the judges and told the panel the “unprecedented” nature of the lawsuit was solid “evidence” the government had no power to bring it.
“I think the way I would put it is: Does the Debs cause of action extend to injunctive relief against a judge?” Clement said, framing the issue before answering no.
“In the unique area of separation of powers, the Supreme Court, on multiple occasions, has made the observation that in this instance — in this separation of powers competition among the branches — if something has never been tried before, that is kind of prima facie evidence that the power doesn’t exist,” he said.
Citing the late Justice Antonin Scalia, for whom he clerked, and the Supreme Court’s opinions generally, Clement said the “highly attractive tool” and claimed power at issue here hasn’t been tried — “a strong indication that it just doesn’t exist.”
“One thing I am sure of is this is not the first time in American history that the executive branch has been frustrated with the judiciary, but they haven’t resorted to this kind of extraordinary action,” he said.
Clement argued that if the 4th Circuit does find the case is moot, it shouldn’t vacate Cullen’s opinion.
“I think that would create very perverse incentives,” he said.
The post Trump DOJ’s discovery of ‘highly attractive tool’ to sue whole court is ‘strong’ proof that ‘power doesn’t exist,’ lawyer tells 4th Circuit first appeared on Law & Crime.
