Stephen I. Vladeck writes:

For all of the judicial interventions we’ve seen in the first eight weeks of the new Trump administration, alarmingly little has changed on the ground. Much of the unlawfully frozen federal money is still frozen; many of the unlawfully fired federal workers are still out of work. Mahmoud Khalil, the Columbia graduate and green card holder arrested March 8 in New York on exceptionally tenuous legal grounds, remains in an immigration detention facility in Louisiana.

The central problem isn’t that the courts have upheld legally dubious actions or even that the White House is openly defying adverse rulings. Rather, it seems that chaos and disruption are themselves central to President Trump’s objective.

Invoking the Alien Enemies Act has a lot in common with a number of Mr. Trump’s other divisive undertakings — like his effort to restrict birthright citizenship by executive order; his use of the Migrant Operations Center at Guantánamo Bay, Cuba, as a short-term way station to detain a small number of foreigners pending their deportation (many of whom have quickly, if expensively, been returned to the United States); and, more recently, the case of Mr. Khalil. In all of these contexts, the odds are better than not that, by the time the litigation challenging the Trump administration’s actions has run its course, judges will rule against the actions of the administration.

Those likely victories, if we can call them that, may prove hollow. Even if the courts rule again and again against Mr. Trump, voiding unlawful immigration arrests and releasing individuals from unlawful immigration detention doesn’t undo the harm they suffered from being arrested and detained in the first place. What remains is the broader fear it instills in immigrant communities that they could be next, and the behavior that is chilled or curtailed as a result. Likewise, ordering the government to turn back on spending taps that it has unlawfully frozen can’t undo the damage suffered by recipients deprived of mission-critical funding in the interim. Blocking an executive order intended to intimidate law firms into not representing former government officials doesn’t un-send the message about other ways the government might seek to retaliate against those who don’t toe the party line. And all of that is assuming the White House actually abides by the decisions of the courts, a point upon which we perhaps cannot rely.

Typically, victims of wrongful conduct can sue for damages, a right provided not just to stop the wrongful behavior while it is happening, but also to redress the injuries they suffered during and because of that conduct. Such suits are available not only to compensate the victims for their losses, but also to punish the bad actors if their conduct was sufficiently malicious. The central idea is that damages aren’t just compensatory; they ought to provide a meaningful deterrent against knowingly wrongful conduct in the first place.

For better or worse, there is no entity in the United States against which it is more difficult to obtain damages than the federal government. [Continue reading…]