Challenging court rules and the problem of offensive litigation

The United States has sued the District Court for the District of Maryland (and each of its judges) , challenging the validity of a district-wide standing order that automatically stays removal for any habeas petitioner in the district. The suit argues the order violates the requirements for injunctive relief, ignores jurisdictional bars on immigration cases, and violates § 2071 and FRCP 83 by effectively creating a local rule without notice-and-comment. It also has some gratuitous language about how lower courts are interfering with the executive; how SCOTUS has had to pause unlawful restraints on core Article II powers; and woe-is-me about how many nationwide injunctions that have been issued against the Trump Administration.

Aside from the oddity of the federal executive suing a federal court, the case offers another example of how the default to offensive pre-enforcement litigation has taken over. It seems to me the correct procedural posture for this action would be for the government to seek to appeal (under COD) or mandamus the automatic injunction in the next habeas action filed in the district. Although I enjoy the irony of the federal executive pursuing the big-picture litigation efforts it decries from private litigants.

These sorts of pre-enforcement challenges to local rules are becoming common. A Tennessee civil rights attorney attempted this move in challenging a Middle District of Tennessee rule precluding attorneys from making extra-judicial statements. The district court dismissed for lack of standing--enforcement of the rule against him was not certainly impending in any of a series of actions against the private-prison company CoreCivic. (The district repealed the rule last month). This suit did not make sense to me, either. It seemed like a perfect candidate for defensive litigation within a pending proceeding--argue the invalidity of the local rule in defending against its attempted enforcement, then attempt to appeal the gag order* or seek mandamus.** 

[*] The collateral order doctrine would seem to allow review, even after Mohawk. The gag is completely separate from the merits; the attorney's free speech is an important issue; and the loss of his First Amendment rights cannot be remedied on appeal from final judgment, as he is denied the opportunity to speak in the meantime.

[**] There also might have been a Younger issue (or the equitable equivalent of Younger between two federal proceedings) in that action--the injunction would interfere with the power of the judge in the ongoing action to control the proceedings before him. I guess the question is whether a gag order is akin to contempt.

The challengers would argue that the rule (applicable to all the suits the lawyer had against CoreCivic) or standing order (applicable to all habeas actions in the district) creates the constitutional problem, not the application in one action. But that is always the case--the violation is the enforcement of a rule, not the existence of the rule itself. Precedent from that first action (especially binding precedent from the court of appeals) defeats enforcement of the rule or order in other actions.

The usual argument (see critics of S.B. 8 and its copycats) against defensive litigation--it requires someone to violate a rule and risk suit and liability and it chills real-world conduct--does not apply. The challenged rules apply once judicial proceedings begin, at which point they have the opportunity to challenge the rule. The challenged rule does not cause any real-world chilling effect, independent of those proceedings.