2026 is not a great time to be a government lawyer. They’re just getting HAMMERED by judges — over and over and over and over and over again — for shoddy litigation practices and outlandish legal arguments. And maybe this is hard to believe, but it’s happening again!
Judge Roy Dalton Jr. of the Middle District of Florida is making it abundantly clear that lawyers pretending inconvenient law simply doesn’t exist just doesn’t cut it in federal court. Dalton issued a snippy order warning U.S. Attorney Gregory Kehoe and Assistant U.S. Attorney Joy Warner that sanctions may be coming their way.
The underlying case involves one of the many habeas petitions challenging the Trump administration’s aggressive position that nearly all noncitizens are subject to mandatory detention with no bond hearing. Dalton made clear that the government is allowed to push an unpopular legal theory. What they can’t do is wish away contrary authority.
“The government is free to advance an unpopular legal theory,” Dalton wrote, “but its lawyers must make those arguments in a way that comports with their professional obligations.”
“Cite the contrary binding authority and argue why it’s wrong. Don’t hide the ball. Don’t ignore the overwhelming weight of persuasive authority as if it won’t be found,” he admonished. He continued with this bodyblow of a line, “And don’t send a sacrificial lamb to stand before this Court with a fistful of cases that don’t apply and no cogent argument for why they should.”
That’s… gotta smart.
The government has until by February 9th to explain why they shouldn’t be sanctioned, maybe they can argue this scathing order was punishment enough.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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