The Trump Administration’s Gamesmanship Is the Reason for This Weekend’s Frenetic Litigation

In my Saturday post on the Supreme Court’s emergency order in the wee hours, directing the Trump administration not to deport any more Venezuelan aliens under the Alien Enemies Act until further order of the Court, I noted that there would be a dissent from Justice Samuel Alito, joined by Justice Clarence Thomas. We now have Justice Alito’s dissent (filed later on Saturday), and it is, as one would expect, persuasive.

There are also two other developments worth noting. First, late on Friday night, the Fifth Circuit’s denied the ACLU’s motion for a temporary restraining order (TRO); the three-judge panel was composed of two Trump appointees and a Biden appointee, and Justices Alito and Thomas not only endorse its decision but conclude that it deprived the Supreme Court of jurisdiction. Second, Trump Justice Department Solicitor General D. John Sauer took the Supreme Court up on its invitation to file a response to the ACLU’s application for an injunction against the Venezuelans’ deportation, which the Supreme Court’s majority granted in what appeared to be exigent circumstances (the imminent deportation, with only illusory real due process) absent first hearing from the government.

As I said in Saturday’s post, since we hadn’t yet seen Justice Alito’s dissent, we couldn’t say what its rationale would be, though I surmised that it could be that he and Justice Thomas believed “that the Court’s intervention is premature, that the Court may lack jurisdiction, that the aliens have no meritorious objection to removal under the AEA, or some other rationale.” The first two points turned out to be the main points (the dissent does not address the merits of President Trump’s AEA invocation).

On that score, Justice Alito is right that the Court has departed from its precedents. In a perfect world, we’d see it as unreasonable that the ACLU deemed the district court in the Northern District of Texas — Judge James Wesley Hendrix, a Trump appointee — to have “constructively denied” its TRO application when he failed to act on it by about 42 minutes after the ACLU’s presumptuously self-imposed deadline on Good Friday afternoon. If there was no true denial of the motion by the judge, then there was nothing for the Fifth Circuit to act on, even if Judge Hendrix was probably also right that the ACLU’s appeal to the Fifth Circuit divested him of jurisdiction to act — leaving the TRO application in procedural limbo.

If the Fifth Circuit had nothing to act on, the Supreme Court shouldn’t have acted, because it only has jurisdiction, in this context, to review decisions from the appellate courts. Moreover, even if all of that is ignored, TROs are, generally speaking, unappealable (because they are just temporary measures to freeze things while a court gets its arms around the controversy). Meantime, the Court heard only from the ACLU, not the Justice Department. And the ACLU was acting on behalf of a “putative class” that has not been certified (all Venezuelans in the Northern District of Texas who might be deported under the Trump AEA proclamation, regardless of whether they’ve filed habeas corpus petitions), and whose factual allegations were unverified.

All true. But here’s the problem: All of this could easily have been resolved, without a flurry of emergency activity by courts that were given insufficient time and information, if the Trump administration had simply represented to Judge Hendrix that, in compliance with the Supreme Court’s April 7 ruling in Trump v. J.G.G., it would not deport any aliens under the proclamation until those aliens each had a meaningful opportunity to file a habeas petition and the court had a reasonable opportunity to rule on it.

Justice Alito writes:

Although this Court did not hear directly from the Government regarding any planned deportations under the Alien Enemies Act in this matter, an attorney representing the Government in a different matter, J. G. G. v. Trump, No. 1:25–cv–766 (DC), informed the District Court in that case during a hearing yesterday evening that no such deportations were then planned to occur either yesterday, April 18, or today, April 19.

This is true, of course, but there’s more to it than that. The “different matter” Alito refers to is the case before Judge James Boasberg in Washington. Judge Boasberg, correctly adhering to the Supreme Court’s April 7 ruling, declined to grant relief because the Court held that the aliens have to proceed by habeas in the district where they are detained, i.e., Texas, not Washington, D.C. In that case, the Justice Department represented that it would not deport aliens under the AEA on Friday or Saturday.

When Alito observes that his “Court did not hear directly from the Government regarding any planned deportations under the [AEA],” he neglects to mention that the ACLU implored the Trump administration to commit in the lower courts in Texas, as it did in Boasberg’s court, that deportations would not proceed. In Texas, the Justice Department would make no commitment other than as to the two named plaintiffs in the ACLU’s case, not the dozens or more whom the government appeared poised to deport (the “putative class”).

That’s why the Court majority acted. No doubt those justices — three of them Trump appointees — are very sensitive to the worthy concerns raised by Justices Alito and Thomas. After last month’s escapade, however, when the Trump administration deported without due process to a foreign prison 137 Venezuelan aliens whom it now concedes should have been given an opportunity to file habeas petitions, the Court was duly apprehensive that the administration was about to do it again, under circumstances in which the pieces were furtively being put in place to do it again.

The Trump administration could easily and unambiguously commit to following the Court’s April 7 ruling instead of looking for ways around it — such as miniaturizing what the Court meant by notice to the aliens and a meaningful opportunity to be heard in habeas corpus challenges to their deportation under the proclamation. The administration has refused to do that. And that is the main reason for this weekend’s litigation whirlwind.