Yesterday federal district judge Charlotte N. Sweeney issued a temporary restraining order (in D.B.U. v. Trump) that bars the Trump administration from transferring outside Colorado two illegal aliens from Venezuela. The TRO gives the same relief to members of the “provisionally certified class” of “All noncitizens in custody in the District of Colorado who were, are, or will be subject to the March 2025 Presidential Proclamation entitled Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua and/or its implementation.”

In her order, Judge Sweeney opines that the plaintiffs are likely to succeed in their argument that President Trump’s Alien Enemies Act Proclamation concerning members of the Venezuelan gang Tren de Aragua is unlawful. Her argument broadly embraces the positions set forth by D.C. Circuit judge Karen Henderson in her opinion last month in J.G.G. v. Trump, on the government’s emergency motions for stay of Judge James Boasberg’s TROs: namely, that the Proclamation’s use of the terms invasion and predatory incursion does not comport with the meaning of those terms under the Alien Enemies Act.

Some observations:

1. Twitter legal experts are abuzz with claims that it’s “utterly lawless” for a district judge “to tell the President what constitutes a predatory incursion.” But that assertion is badly confused. It’s one thing to argue that federal courts owe the president a lot of deference on the factual findings that support invocation of the Alien Enemies Act. It’s quite another to contend that federal courts can’t address what the provisions of the Alien Enemies Act means. And of course a federal district judge has the same role in deciding legal questions that appellate judges and Supreme Court justices have.

As it happens, my Twitter disputant ended up conceding the point without realizing it: he retreated to the position that judges may “determin[e] whether or not the President has made the necessary findings” (emphasis added). But the question of which findings are necessary turns on a judge’s determination of what the provision of the Alien Enemies Act mean.

I haven’t carefully studied the positions taken by Henderson and Sweeney on the meaning of the Alien Enemies Act, so I’m not going to embrace their bottom line. But anyone who reads Trump’s Proclamation ought to see that it’s quite a stretch, and it’s no surprise that even very ardent advocates of robust executive power like John Yoo and Robert Delahunty have expressed serious doubts about its legality.

2. I’m skeptical of Sweeney’s order for a very different reason. By her account, ICE officials have determined that the two plaintiffs are not subject to the Proclamation, and they have stated that if they conclude otherwise in the future, they would provide the plaintiffs notice and ample time to file a habeas petition. If that’s so, I don’t understand why the plaintiffs face any imminent harm that warrants relief. So I don’t see why Sweeney saw any need to reach the question of the Proclamation’s legality.

But perhaps this is another instance in which the distrust that the Trump administration has earned is hurting it in the courts.

3. For the same reasons as in point 2, I question the very broad scope of Sweeney’s proposed class certification.