Because political theater—ugly political theater—seems to have dominated the Trump administration’s strategy on the Alien Enemies Act litigation, I expect that DOJ might go running to the Supreme Court to try to get a stay of Judge Boasberg’s TROs. There are plenty of reasons why the Court should decline any such request.

For starters, the TROs will likely be superseded by a preliminary injunction very soon. DOJ will appeal that injunction to the D.C. Circuit and will, I assume, seek an immediate stay. If (as is likely) it loses on its stay request, it can then ask the Court for an emergency stay. The legal issues should be better developed then. (Not that I think that Supreme Court review is likely to make sense at that stage either.)

It’s not even clear that the Court would have jurisdiction to issue a stay of the TROs. Rightly or not (I suggest “not” here), TROs are ordinarily not appealable, and the authority to issue a stay is ancillary to the appellate jurisdiction. The D.C. Circuit divided on this point, with Judge Henderson and Judge Walker finding appellate jurisdiction, even as they disagreed whether to grant the stay.

I also don’t think that DOJ can show that the TROs are clearly unwarranted. Plus, the government is suffering no significant harm in the meantime. Any detainees whom it can’t deport will remain in detention. (This elementary point seems to escape the alarmists.) Further, if, as the government appears to maintain, there is a meaningful option for the detainees to file habeas petitions challenging their deportation, then how is the public interest disserved if they are able to seek the same relief from deportation in this action?