Main: President Donald Trump speaks with reporters before departing on Marine One from the South Lawn of the White House, Thursday, April 16, 2026, in Washington (AP Photo/Manuel Balce Ceneta). Left inset: Neomi Rao, Trump's nominee for a seat on the D.C. Circuit Court of Appeals, appears before the Senate Judiciary Committee for her confirmation hearing, on Capitol Hill in Washington, Tuesday, Feb. 5, 2019 (AP Photo/J. Scott Applewhite).
The DOJ lost at the D.C. Circuit in a 3-0 ruling on Friday after even the lone conservative member of the panel described the Trump administration's claims of harm as little more than "generalized worries."
U.S. Circuit Judge Neomi Rao penned a solo concurrence explaining that she declined to stay a lower court order blocking the administration's ICE detention facility visitation policy — not because she doesn't think the government will ultimately succeed on appeal, but because the DOJ didn't show that congressional Democrats' "oversight visits without advance notice impose harms beyond administrative inconvenience."
Democratic lawmakers, led by Rep. Joe Neguse of Colorado, filed suit in July after ICE made policy changes to stop unannounced visits at immigration facilities despite federal law.
ICE's website details that the policy required "all requests to visit ICE facilities must be made a minimum of seven (7) calendar days in advance and be coordinated through the ICE Office of Congressional Relations," or else "a denial of access to the facility" would follow.
There's just one problem.
"However, at this time, pursuant to a March 2, 2026, court order in Neguse v. Noem, this seven-day notice requirement does not apply," ICE concedes. "All Members of Congress are permitted to visit ICE offices, hold rooms, and detention centers with no notice. However, ICE requires a minimum of twenty-four (24)-hours' advance notice for congressional staff seeking to visit ICE facilities."
In March, U.S. District Judge Jia Cobb, a Joe Biden appointee, found that the plaintiffs had standing to sue and stayed the policy.
U.S. Circuit Judges Cornelia Pillard and Robert Wilkins, both Barack Obama appointees, and Rao, a Donald Trump appointee, ensured that the stay remained in place on Friday.
"Appellants have not satisfied the stringent requirements for a stay pending appeal," a brief order said, turning down the DOJ.
Only Rao had more to say, spelling out where and how the government fell short even though she thinks the lawmaker plaintiffs "have no standing" and that the DOJ is "very likely to succeed on its appeal."
No stranger to deferring to the Trump administration, Rao said that wasn't an option here.
"While its appeal is pending, the government seeks a stay and so must establish irreparable injury from the district court's order. The government is entitled to deference on how it maintains the security of detention facilities, but the current record does not substantiate the government's claim that oversight visits without advance notice impose harms beyond administrative inconvenience," Rao wrote. "While a close call, particularly because of the strong likelihood of success on the merits, I concur in denying a stay."
The appellate judge emphasized that ICE's declaration that "any unannounced visit is highly disruptive" did not actually "explain how ICE operations are disrupted by unannounced visits."
The good news for the government was that the concurrence provided some pointers on how to fix what was broken.
For one, Rao suggested that Cobb's issuance of a stay "without jurisdiction, especially when that stay favors one political branch over the other, may constitute irreparable injury," but because the DOJ didn't argue as much, she had "no occasion to consider it here." It's worth watching if that line of argument appears in the future.
The judge contemplated the DOJ coming back with "further information" about the "risks" that unannounced visits create.
"With further substantiation of these harms or an explanation of why entering a stay without jurisdiction constitutes irreparable harm in this interbranch conflict, a stay may be within reach," Rao concluded.