Fumbling in the dark

The winding tale of A.A.R.P. v. Trump

On May 16, 2025, in A.A.R.P. v. Trump, the Supreme Court temporarily enjoined the government from using the Alien Enemies Act as a basis to deport certain alleged members of the Venezuelan organization known as Tren de Aragua. The Supreme Court’s order extended a similar temporary injunction that the Court entered shortly before midnight Central on April 18. These injunctions were procedurally unorthodox, both because neither the district court nor the court of appeals had ruled on the plaintiffs’ motion for an injunction and because the Supreme Court’s injunction applied to Venezuelans who were not parties to the case.

The Supreme Court’s decision has provoked controversy. Justice Alito, joined by Justice Thomas, vigorously dissented from both the April 18 and the May 16 orders. On May 20, Judge Ho wrote a concurrence similarly expressing disagreement with the Supreme Court’s May 16 decision. The Wall Street Journal published an editorial referring to the May 16 decision as “A Supreme Court Injustice to a District Judge.”

In this post, I will offer my take on this controversy. Executive summary:

1. A.A.R.P. raised novel and challenging procedural issues.

2. Those novel and challenging procedural issues were artificial. They arose solely because the government deployed a strategy of withholding information in order to hinder the Venezuelan detainees from vindicating their right to due process, leaving the plaintiffs’ lawyers and the court to fumble in the dark.

3. The Supreme Court appropriately declined to allow the government to benefit from this strategy.

Autism awareness

In 1798, in anticipation of war with France, Congress enacted the Alien Enemies Act (AEA). In its current form, the AEA provides in relevant part:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The AEA was invoked during the War of 1812, World War I, and World War II. Following World War II, President Truman continued to rely on the AEA as a basis to deport former Nazis. After that, the AEA lay dormant until March 14, 2025, when the President signed a Proclamation declaring that Tren de Aragua is a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States,” thus entitling the administration to deport Tren de Aragua members under the AEA.

And it did. Almost immediately after the Proclamation was issued, the administration began deporting Venezuelans to the Dickensian nightmare known as El Salvador’s CECOT prison. On the evening of March 15, a federal court issued a temporary restraining order blocking AEA deportations. But during the one-day period between the issuance of the proclamation and the temporary restraining order, the administration deported approximately 137 Venezuelans under the AEA. Those people are currently at CECOT, possibly for the rest of their lives.

Whether the administration may lawfully deport Venezuelans under the AEA is, to put it mildly, a subject of dispute. It is far from clear that Tren de Aragua qualifies as a “foreign nation or government” engaging in an “invasion or predatory incursion” that could trigger the AEA.

Even if the President has the authority to deport Tren de Aragua members, it is far from clear that the people who have been deported so far, or who are being threatened with deportation, are, in fact, Tren de Aragua members. The administration says they are Tren de Aragua members, but that doesn’t mean it’s true. Of note, many of the deportees entered the United States legally and did not have criminal records.

It seems that the administration designated many of these men as Tren de Aragua members based on their tattoos. But published reports suggest that these designations are unreliable, with the administration treating an autism awareness tattoo, a Real Madrid tattoo, and tattoos saying “Mom and Dad” as definitive evidence of Tren de Aragua membership. Meanwhile, according to an expert declaration, Tren de Aragua doesn’t even use tattoos.

Ordinarily, when the government alleges that a person should be deported and the person denies the allegation, the person gets a hearing before a neutral judge—that is, due process. However, when the government started deporting Venezuelans on March 14, it did not give them any process. Instead, the government unilaterally declared them to be Tren de Aragua members, shackled them, flew them to El Salvador, and then took the position that any due process claim they might bring was moot because they were now in the custody of a foreign country.

On March 15, the ACLU filed a lawsuit in the District of Columbia, claiming that the Proclamation violated the Administrative Procedure Act. As noted above, the court quickly granted a temporary restraining order blocking AEA deportations. This precipitated several weeks of tense litigation which quickly reached the Supreme Court.

Skipping over many twists and turns, on April 7, the Supreme Court ruled in Trump v. J.G.G., by a 5-4 vote, that the temporary restraining order should be vacated. According to the Supreme Court, the plaintiffs had chosen the wrong procedural vehicle to challenge the deportations: they should have brought habeas corpus actions rather than sue under the Administrative Procedure Act. This was important because Administrative Procedure Act claims can be brought in D.C., whereas habeas corpus actions must be brought in the district of confinement, which for many detainees would be in Texas. I was surprised by this ruling, but it doesn’t matter what I think, so habeas it is.

Importantly, however, the Supreme Court also said this:

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

In other words, Venezuelan detainees facing deportation have a right to due process.

The Oracle

And so the government quickly devised a new notice protocol to comply with J.G.G.

I’m going to start by telling you what that new notice protocol was. But before I do, one point is crucial to understand. Much of this post will describe a dramatic series of events and filings on April 18 that culminated in a Supreme Court injunction. But the government didn’t tell the courts or the detainees’ lawyers about this new protocol until after the events of April 18. The government wrote the new protocol and immediately started implementing it without telling anyone what it was. As far as I can tell, the government first disclosed the new protocol in a federal court filing on April 23—well after the government attempted to start deporting people pursuant to the new protocol. Moreover, even on April 23, the government attempted to file this new protocol under seal, opposing its public disclosure on the theory that it would reveal “confidential investigative methods”; it only became public after the district court unsealed it over the government’s opposition. So you, the reader, will understand what the government was actually doing on April 18, but the detainees’ lawyers didn’t have access to this information at the time.

The government’s protocol was to give the detainees a document called “Form AEA-21B: Notice of Warrant of Apprehension and Removal Under the Alien Enemies Act.” Form AEA-21B advised the detainees that they had been determined to be Tren de Aragua members and would be deported under the AEA. It said that the detainee could place a phone call. Finally, it said that after the detainee was removed, he could not reenter the country without permission from the Secretary of Homeland Security.

According to the government’s declaration, after being served with Form AEA-21B, the detainee is given twelve hours to “indicate or express an intent to file a habeas petition.” If the detainee doesn’t “express any such intention,” then ICE may deport the detainee immediately. If the detainee “does express an intent to file a habeas petition,” then the detainee is given 24 hours to file the petition. If the detainee doesn’t file the petition within 24 hours, then ICE may deport the detainee immediately.

Stop right there.

It is absurd to suggest that this protocol complies with the Supreme Court’s directive that the detainees receive notice “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Among other problems:

• The detainee has no way of knowing that he could file a habeas petition challenging the deportation. Form AEA-21B makes no mention of habeas corpus or any other type of judicial review. It reads like a death warrant given to a condemned inmate 12 hours before execution, notifying the inmate that the time has come to begin reflecting on a life poorly lived.

• Even if the detainee is able to divine that filing a habeas petition might be an option, he would have no idea that “expressing an intent to file a habeas petition” would give the detainee a 24-hour reprieve. Is the detainee supposed to tap the shoulder of the ICE officer and say, “Officer, I just want to let you know that I am planning to file a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas”? Detainees aren’t expected to, and usually shouldn’t, tell ICE officers of their litigation plans. Note that Form AEA-21B ominously states: “Any statement you make now or while you are in custody may be used against you in any administrative or criminal proceeding.”

• Under the protocol, detainees are permitted a phone call. In principle, the detainee could call a lawyer. But:

  • Many of the detainees didn’t have lawyers. And that’s not because no one would represent them! The ACLU offered to represent these people. But the government refused to give the ACLU their names and refused to let the ACLU into the facility to talk to them unless the ACLU already knew their names in advance. Not surprisingly, precisely zero detainees who did not already have lawyers filed a habeas petition. The government’s protocol rested on the presumption that a detainee who didn’t file within 24 hours had voluntarily chosen not to bring a habeas petition, but … really? Given the choice between (1) being defended in court by a crusading ACLU lawyer and (2) being deported to Dante’s Inferno, do you really think that 100% of these unrepresented detainees voluntarily chose Option 2?

  • Even if the detainee had a lawyer, the lawyer might not pick up. Rumor has it that lawyers do not always pick up the phone immediately and sometimes even take more than 12 hours to return a voice message. Of note, even when detainees had immigration lawyers, and even when the government knew who those lawyers were (because, for instance, they had filed appearances in immigration cases), the government did not provide these notices to the detainees’ lawyers.

  • Even if the lawyer did pick up the phone, the lawyer would have no reason to advise his client to inform ICE, “I intend to file a habeas petition.” Remember, the government’s protocol—in which expressing this intention buys the detainee an extra 24 hours—was a closely-held secret.

  • Even if the lawyer picked up the phone and the detainee successfully expressed an “intent to file a habeas petition,” the lawyer would not know that a petition had to be filed within 24 hours. Apparently some of the detainees were told that they would be deported “tonight or tomorrow,” but nothing in the protocol required ICE to disclose this information to the detainee. And no reasonable lawyer would think the habeas petition had to be filed within 24 hours, given the Supreme Court’s admonition that notice had to be “reasonable.”

To sum up, in order to file a habeas petition, the detainee would not only have to already have a lawyer, but the lawyer would have to be The Oracle from The Matrix.

The government surely knew that its protocol didn’t comply with the Supreme Court’s decision and would never stand up in court. Why, then, did the government nonetheless barrel forward?

Because, from the government’s perspective, if the detainees could be deported before a court weighed in, there would be nothing the court could do about it. Recall the celebrated case of Kilmar Abrego Garcia, who was deported to El Salvador in violation of a court order. After the Supreme Court held that the government was required to “‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” the White House responded by a posting a tweet/X saying that he’s “never coming back.” From the government’s perspective, it was irrelevant whether its protocol violated Due Process; once the detainee was deported, his case was over.

Reasonable, but wrong

Shortly after the Supreme Court issued its J.G.G. decision, two detainees, represented by the ACLU, dutifully brought habeas petitions in Texas. They also sought to certify a class of AEA detainees, which would allow the ACLU to seek relief not only on behalf of its individual clients, but also on behalf of other detainees who faced deportation under the AEA. Finally, the ACLU sought a temporary restraining order on behalf of the class that would have temporarily prevented AEA detainees from being deported.

The government promised that it wouldn’t immediately deport the two named plaintiffs, but didn’t make any similar promises with respect to other detainees. Nevertheless, on the afternoon of April 17, the district court denied a motion for a classwide temporary restraining order, holding that it was unnecessary because there wasn’t an imminent threat that the detainees would be deported. The court said: “the Supreme Court’s opinion in J.G.G., along with the government’s general representations about the procedures necessary in these cases, strongly suggest that the putative class is also not facing such an imminent threat.”

This was a reasonable position for the district court to take. Immediately deporting the detainees would violate J.G.G.’s directive that the detainees get a reasonable amount of notice. There was no reason to believe that the government would violate a Supreme Court decision from ten days earlier.

But, it turns out, this reasonable position turned out to be wrong.

Shortly after the district court’s denial of the TRO on April 17, the plaintiffs’ lawyers learned that the detainees were getting notices that they would be deported under the AEA. The detainees were told that the deportations would happen “tonight or tomorrow” (i.e., April 17 or April 18). This information wasn’t coming from the government. Instead, some detainees called their lawyers from the detention facility and described the notices.

Alarmed, the ACLU contacted the government and asked whether the government intended to deport detainees other than the named plaintiffs. At 8:41 pm Central on April 17, the government lawyer sent an email refusing to answer the question.

The plaintiffs had no choice but to go back to the district court. Shortly after midnight on April 18, the plaintiffs filed an emergency motion for a temporary restraining order, asking the court to stop the deportations.

But the plaintiffs had a problem. The district court had a standing order saying that if a party filed an emergency motion, the opposing party had 24 hours to respond. Yet it appeared that the government was going to deport the detainees before the 24-hour period expired. The plaintiffs therefore asked the district court to rule immediately, observing on page 1 of their motion that “these removals could therefore occur before this matter may be heard and before the government’s response within 24 hours.”

And then the plaintiffs waited.

The hours ticked by, and the court didn’t respond to the plaintiffs’ filing. It did not indicate, one way or another, whether it would rule in less than 24 hours. It simply said nothing.

The next morning, the plaintiffs asked the government whether it would sign on to a motion for a status conference. The government said a status conference was unnecessary.

Morning yielded to afternoon, and still the plaintiffs did not know whether the court was planning to wait the full 24 hours. Nor did they know whether the government was going to deport detainees before the 24-hour period expired.

So the plaintiffs moved for a status conference at 12:48 pm, telling the court that if it didn’t rule by 1:30 pm, they would file an appeal. The court didn’t respond.

The plaintiffs gave the district court a little longer, then appealed to the Fifth Circuit at 3:02 pm and also sought relief from the Supreme Court. The Fifth Circuit held that it lacked jurisdiction because the plaintiffs didn’t give the district court enough time to rule.

At 11:52 pm Central on April 18, the Supreme Court granted a temporary injunction barring the government from deporting the detainees.

What would have happened if the plaintiffs hadn’t appealed on the afternoon of April 18? We don’t know for sure, because the government has never told us, but we can make an educated guess. It was subsequently revealed that in the afternoon of April 18, about 70 detainees were loaded onto a bus headed for the airport. The bus actually reached the airport but then turned around, perhaps because the government was nervous about deporting the detainees while they had a motion pending in the Supreme Court.

There was no reason to bring these detainees to the airport unless the government was planning to deport them. They were not going to sit in the airport lounge enjoying the free WiFi.

So here’s what would have happened if the plaintiffs hadn’t appealed. The government would have deported the detainees and then submitted a response brief in the district court after midnight on April 19 saying: too bad, we’ve deported 70 class members and they are forever barred from obtaining relief.

On the evening of April 18, after the plaintiffs went to the Supreme Court, a government lawyer represented to a judge in D.C. that there wouldn’t be any deportations that evening, but the government reserved the right to deport detainees on April 19. If the Supreme Court hadn’t granted its late-night injunction, the deportations may well have occurred the next day.

Was it really an emergency?

After the Supreme Court issued its late-night injunction on April 18, it stewed on the case until May 16, when it issued its decision in A.A.R.P. v. Trump extending the injunction and directing the Fifth Circuit to adjudicate the plaintiffs’ claims. Let’s take a look at that May 16 decision.

Like many controversial cases, A.A.R.P. v. Trump is larded with esoteric technical issues. The first question in A.A.R.P. was whether the plaintiffs’ appeal at 3:02 PM on April 18 was proper. If the appeal was premature, that would imply that both the Fifth Circuit and the Supreme Court lacked jurisdiction, which would mean the Supreme Court would have no choice but to dissolve the injunction. This might seem like an obscure issue, but the whole case turned on it.

This jurisdictional controversy arose because plaintiffs ordinarily aren’t permitted to file an appeal until a preliminary injunction motion is denied. But the district court never actually denied the plaintiffs’ motion. The court just sat on it until the plaintiffs ran out of patience and filed their appeal.

To get around this problem, the plaintiffs argued that the district court “constructively denied” the motion by failing to rule on it. Thus, the question before the Supreme Court was whether this “constructive denial” theory was legitimate. Or, translated into English: was there a real emergency that justified the plaintiffs’ appeal on April 18, or did the plaintiffs jump the gun?

This was a tough question because it was unclear, on the afternoon of April 18, what the government was going to do. That was the fault of the government, which was withholding information from the court.

Suppose that the government had announced: “unless there’s a court order that stops us, we will start deporting detainees at 5:00 PM on April 18.” In that case, it would have been unreasonable for the district court to give the government until the morning of April 19 to respond while doing nothing to preserve the status quo. The district court’s refusal to rule on the plaintiffs’ motion by 5:00 PM would have had the same practical effect as denying the motion. As such, an appeal would be warranted.

Now suppose the government had announced: “we promise to hold off on deporting the Venezuelans for three days to let the judicial process run its course.” In that scenario, the district court’s decision to wait until April 19 would have been reasonable, and the plaintiffs would have had no ground for a hair-trigger appeal on April 18.

What made the issue difficult was that the government was keeping its intentions a secret. It refused to tell the plaintiffs what it was going to do, even when they asked.

Now you might say that the government was under no obligation to disclose that information, and that it wasn’t the government’s job to help the plaintiffs prosecute their case. But actually, I think it was the government’s job for a few reasons.

1. Lawyers—particularly government lawyers—are officers of the court. They are charged not only with obeying court orders, but also with upholding the integrity of the judicial process. The integrity of the judicial process depends on judges making decisions based on accurate information. If the court is struggling to figure out whether there’s a real emergency, the government should tell the court whether there’s a real emergency.

2. Merely one day earlier, the district court had said: “the Supreme Court’s opinion in J.G.G., along with the government’s general representations about the procedures necessary in these cases, strongly suggest that the putative class is also not facing such an imminent threat.” The court was clearly under a misimpression regarding the government’s intentions—based in part on the government’s own prior representations. The government should have corrected that misimpression rather than viewing it as something to exploit.

3. In referring to “the Supreme Court’s opinion in J.G.G.,” the district court was telegraphing its view that deporting the detainees would violate their due process right as recognized in J.G.G. The district court evidently couldn’t bring itself to believe that the government would deport the detainees so quickly. I don’t think it’s an appropriate response for the government to say, “the district court thinks deportations are unconstitutional and is trusting us not to violate the Constitution, so let’s start the deportations!”

4. The district court was acting respectfully towards the government. Rather than issuing a hair-trigger TRO, it was giving the government 24 hours to respond and was trusting the government not to undermine the court’s jurisdiction. If the government was going to deport the detainees, it should have said something.

5. Finally, and most importantly, the government’s goal was to deport these detainees before they ever had their day in court and then argue their case was moot. In other words, the government was effectively saying: “we’ll deprive the detainees of the due process right that the Supreme Court has recognized—and we’ll do so for the specific purpose of permanently preventing them from ever getting the process the Supreme Court held was due.” I don’t think this tactic is consistent with upholding the integrity of the justice system.

The government should have been forthright with the court, but it wasn’t. This put the court in the difficult position of having to figure out whether there was a genuine emergency that warranted an immediate response.

I have sympathy for how the district court handled the case. My guess is that the district court didn’t seriously believe that the government was going to immediately start deporting detainees before the district court had the opportunity to rule. From the district court’s perspective, the plaintiffs’ lawyers were exaggerating the extent of the emergency, and the court wasn’t going to be complicit in that exaggeration by issuing a knee-jerk TRO without fully understanding the issues and giving the government the opportunity to respond.

But it turns out—based on information that came out later—that the plaintiffs weren’t exaggerating. During the 24-hour stretch, the government was really, seriously, bringing the detainees to the airport in anticipation of deporting them.

Even based on the information available on the afternoon of April 18, I agree with the Supreme Court’s decision that the plaintiffs’ motion was constructively denied, warranting an appeal. In polarizing cases, one craves neutral principles. From my perspective, the Supreme Court appropriately applied the ubiquitous neutral principle that when a party refuses to disclose information in its possession, the court should assume that fact against the party. The government was steadfastly refusing to disclose when it would start deporting the detainees, giving rise to the inference that it was planning to deport them immediately—which turned out to be correct.

Also, this wasn’t the first time that the government had been extremely aggressive in seeking to deport detainees before a court could rule. In the initial frenzied stages of the litigation in D.C. a month earlier, the government did everything it could to deport detainees before the district court could rule on the plaintiffs’ motion for a temporary restraining order. Indeed, what happened was quite remarkable. The government got planes in the air before the D.C. hearing. The D.C. judge issued an oral order directing the government to turn the planes around. The government ignored that order (without telling the court) because it wasn’t written down. Then the D.C. judge issued a written injunction intended to embody the oral injunction. The government still didn’t turn the planes around because the written injunction didn’t use the exact words of the oral order. This episode led the D.C. judge to suggest that the government might have committed criminal contempt. The fate of those contempt proceedings remains unclear. But the point is, in light of the government’s prior actions, there was every reason to believe that the government would deport the detainees before the Texas court could rule.

I am not persuaded by Justice Alito’s dissent. The dissent first faults the plaintiffs’ lawyers for failing to inform the court, in their late-night motion for a TRO, that they wouldn’t wait the full 24 hours before appealing. He says the lawyers “were fully aware that the District Court intended to give the Government 24 hours to file a response” but “said nothing about a plan to appeal if the District Court elected to wait for that response.”

This is an uncharitable reading of the plaintiffs’ brief. On page 1 of the plaintiffs’ brief, the plaintiffs acknowledged the district court’s standing order giving the government 24 hours to file a response, but said: “these removals could therefore occur before this matter may be heard and before the government’s response within 24 hours.” And then, on the last page of their brief, the plaintiffs said: “Given that individuals are now in imminent danger of removal, with notice that appears to be less than 24 hours, Petitioners respectfully request that the Court provisionally certify a class and grant a class wide TRO so that it has time to consider these important issues.” The plaintiffs were unambiguously asking for an injunction in less than 24 hours. It should not have come as a surprise that if the district court wouldn’t grant that request, the plaintiffs would seek relief from a higher court. I don’t think it’s necessary, or even appropriate, for the plaintiffs to say, “not only do we want relief in less than 24 hours, but we’ll appeal if you don’t give it to us!”

The plaintiffs ultimately did go back to the district court at 12:47 pm and requested a status conference by 1:30 pm. Hearing nothing, they appealed at 3:02 pm. The dissent faults them for that too: “delivering such an ultimatum to a district court judge … represented a very stark departure from what is usually regarded as acceptable practice.” Indeed it does. Something else also is a stark departure from ordinary practice: intentionally exploiting a district court’s misimpression while withholding information from the court for the purpose of permanently stripping the detainees of the very due process right that the Supreme Court had recognized 11 days earlier.

Also, the plaintiffs weren’t demanding that the district court rule by 1:30 pm. All they were asking for was a status conference. They would have asked the government: are you planning to deport detainees this afternoon, or not? If the government stonewalled, they would have asked the court: are you planning to rule this afternoon, or not? If the court said “no,” that was all the information the plaintiffs needed. The plaintiffs could then have appealed and argued that the district court denied the relief they were asking for: an injunction on April 18. It would have been a five minute conversation with the judge.

The dissent also says the plaintiffs had insufficient evidence that the detainees were going to be deported imminently. The plaintiffs submitted a lawyer’s declaration that an ICE official told a detainee he would be deported “tonight or tomorrow.” The dissent refers to this as “a double-hearsay statement that cannot be traced back to any specific government official.” Is the dissent suggesting that the plaintiffs should have submitted a declaration from someone at ICE?

The reality is that information concerning the timing of deportations was in the government’s possession and the government was withholding it from the court in order to facilitate its violation of a Supreme Court decision. In the face of an opposing litigant that was hindering their access to information, the plaintiffs’ lawyers were submitting the best evidence available under extreme time pressure. They managed to provide a “double-hearsay statement” that turned out to be completely correct: We now know that the government’s protocol did, indeed, provide that the detainees could be deported within 12 hours. I do not understand how the plaintiffs’ counsel can be faulted here.

Jurassic Park without the dinosaurs

Suppose one were to edit Jurassic Park by stripping out all the scenes with dinosaurs and muting all dialogue that mentioned dinosaurs. The movie would become extremely confusing. Why are these people so scared? Why do characters keep disappearing? The fact that there are dinosaurs on Isla Nublar is a central plot point.

Judge Ho’s concurrence on remand disagrees with the Supreme Court’s decision to exercise jurisdiction. In his view, the plaintiffs’ lawyers were unreasonable in demanding that the district court act so quickly on April 18. However, the concurrence makes no mention of the plot point that the detainees were about to be deported, which is as central to this case as dinosaurs are to Jurassic Park.

The concurrence excoriates the plaintiffs’ lawyers for requesting a ruling by 1:30 pm, which the concurrence characterizes as a “patently unreasonable timetable.” Perhaps so, were it not for the fact that the lawyers set this timetable because the detainees were about to be deported.

The concurrence says this:

Notably, the Justices themselves have expressed concerns about making decisions under far more forgiving time constraints than those demanded here. Recall the emergency relief sought in Does 1-3 v. Mills, 142 S. Ct. 17 (2021). Members of the Court expressed concern about the “use [of] the emergency docket to force the Court” to “grant . . . extraordinary relief” “on a short fuse without benefit of full briefing.” Id. at 18 (Barrett, J., concurring in the denial of application for injunctive relief). The amount of time considered too short in Does 1-3 was nine days. Compared to 42 minutes, however, nine days is a lifetime to decide a motion. So the district court reasonably assumed that the principle invoked in Does 1-3 to justify denying relief to law-abiding citizens concerned about their religious liberties in the COVID-19 era would likewise justify denying relief to illegal alien members of a foreign terrorist organization.

In Does 1-3 v. Mills, the plaintiffs were healthcare workers who were about to lose their jobs for refusing to get COVID vaccines. They sued, claiming a violation of their right to free exercise of religion. After both the district court and the court of appeals rejected their claim, they sought an emergency injunction from the Supreme Court. The Supreme Court denied relief. Concurring in that denial, Justice Barrett noted that in deciding whether to grant injunctive relief, the Court could consider the likelihood of certiorari being granted. In the portion of her concurrence quoted by Judge Ho, Justice Barrett stated: “Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument.”

The riddle of why the healthcare workers were treated differently from the detainees has a solution: the detainees were about to be deported and lose their rights forever. By contrast, if the healthcare workers lost their jobs, they could continue prosecuting their case. If they prevailed, they could be reinstated.

Also, in Does 1-3, the plaintiffs had the opportunity to litigate their cause in both a district court and an appellate court. Justice Barrett’s statement came in the context of observing that discretionary review in the Supreme Court was unlikely. By contrast, the detainees were going to be deported within hours without having gotten due process in any court, despite a Supreme Court decision from 11 days earlier saying they had a right to due process.

The concurrence blasts the plaintiffs’ lawyers for filing their motion shortly after midnight, observing that “this is a District Court—not a Denny’s.” One would have no idea, reading the concurrence, that the plaintiffs filed their motion shortly after midnight because they had just found out the detainees might be deported the next day. (Also, by statute, a district court is in fact a Denny’s: “All courts of the United States shall be deemed always open for the purpose of … making motions and orders.”)

The concurrence offers this observation:

If this is going to become the norm, then we should say so: District judges are hereby expected to be available 24 hours a day—and the Judicial Conference of the United States and the Administrative Office of the U.S. Courts should secure from Congress the resources and staffing necessary to ensure 24-hour operations in every district court across the country.

If this is not to become the norm, then we should admit that this is special treatment being afforded to certain favored litigants like members of Tren de Aragua—and we should stop pretending that Lady Justice is blindfolded.

This passage suggests the Supreme Court ruled that a quick ruling was needed because the Court is biased in favor of Venezuelan gang members. Might there have been some other reason in this case that the judiciary had to move more quickly than usual?

Justice!

Having concluded that the Fifth Circuit had jurisdiction over the plaintiffs’ appeal, the Supreme Court remanded the case to the Fifth Circuit to decide that appeal. But the Supreme Court also granted a temporary injunction to the entire plaintiff class that will stay in place until the Supreme Court finally decides the case.

Whether such an injunction may be issued raises a number of difficult issues:

1. Whether class actions can be certified in habeas cases at all.

2. Whether the named plaintiffs were typical of the class even though the government was promising not to deport the named plaintiffs but making no similar promises with respect to the rest of the class.

3. Whether a district court can grant temporary relief to a putative class before the class is certified.

As I see it, on all three issues, the Court’s decision rests on solid legal ground. Lower courts have certified classes in habeas cases for decades. There’s plenty of case law saying that the government can’t moot a case by promising to give special treatment to the named plaintiff. As to the third issue, the Court cites a treatise which in turn cites an impressively long list of cases saying that such temporary relief is possible. Temporary relief for a putative class is hard to wrap my head around, but lots of courts seem to have successfully wrapped their heads around it.

Still, none of these issues is clear-cut. But the important point for me is that all three issues arose solely as the result of the government engaging in tactical maneuvers as a means of violating the detainees’ due process rights.

1. There should have been no need for a class action in this case. There were lawyers available to represent every detainee. A class action was needed only because the government refused to identify the detainees, refused to allow lawyers access to the detainees unless the lawyers already knew their identities, refused to tell the detainees that there were lawyers begging to represent them, and made it impossible for the detainees to file lawsuits on their own.

2. The typicality issue arose solely because the government unilaterally said it wouldn’t deport detainees who filed habeas petitions, while making no similar promise for other detainees. There was no national security rationale for this move. It’s not as though the detainees who filed habeas petitions were less dangerous than those who didn’t. This move was designed to make it harder to certify a class, and hence easier to deport the detainees who lacked lawyers.

3. As for the question of whether a court can grant provisional relief to a class before the class is certified: The government claimed that the district court was required to go through a series of procedures before certifying the class, and until it went through those procedures, no classwide relief was warranted. But the government didn’t actually want to use those procedures. It wanted to invoke the need for those procedures as a basis to delay classwide relief, and then deport the class members before those procedures could ever occur.

The Supreme Court didn’t allow the government to get away with this.

I usually wince when people say that a Supreme Court decision delivered “justice.” In almost all Supreme Court cases, both parties have a claim to the mantle of justice, and the Supreme Court’s decision reflects nothing more than the fact that the winning party had stronger legal arguments.

Almost all, but not all. From time to time, the Supreme Court finds a way to deliver justice. In A.A.R.P., the Supreme Court delivered justice.