The Volokh Conspiracy
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The Procedural Posture of A.A.R.P. v. Trump
The Fifth Circuit and SCOTUS ruled at approximately the same time.
I wrote a short post about A.A.R.P. v. Trump. Here, I will walk through the complex procedural posture of this case. I will do my best to lay out it clearly, and offer commentary at the end.
In the wake of J.G.G. v. Trump, district courts in Texas have asserted jurisdiction over alleged gang members who are slated for removal to El Salvador. Some of these aliens are currently being held in Abilene, Texas. Judge James Wesley Hendrix keeps his chambers in Lubbock, but draws cases from the Abilene Division of the Northern District of Texas.
On April 16, 2025 the ACLU filed suit on behalf of A.A.R.P and W.M. in the Abilene Division. They sought an ex parte TRO, alleging that the federal government planned to imminently remove the aliens. The government filed a reply later that day. On April 17, 2025, Judge Hendrix denied the TRO on the grounds that the removal was not imminent. That evening, counsel for the ACLU left a voicemail with the court about the case. Later that evening, the court ruled that any emergency relief must be sought on the docket. On April 18, at 12:34 a.m., the ACLU sought a second emergency TRO. Under a prior order, the government had twenty-four hours to respond. The Court noted the case "raised a series of complicated questions" and "believed that 24 hours was an appropriate time" to respond. Moreover, Friday was (for those who may not have known) Good Friday, and many people simply were not available to work that day. (We will see if the ACLU brings an Establishment Clause claim against the judge for citing a religious holiday to justify a delay.) Judge Hendrix said he would rule by Saturday, April 19. But he would never be given the chance to rule.
The ACLU filed another motion for an emergency immediate status conference at 12:48 p.m. CT. The motion stated that if the government did rule by 1:30 p.m.–forty-two minutes later–the ACLU would seek emergency relief from the Fifth Circuit. Judge Hendricks did not rule on the motion within forty-two minutes. The ACLU sought an appeal. But by filing an appeal, the ACLU divested Judge Hendricks of jurisdiction to proceed, and the chance to rule.
At this point, the timeline gets fuzzy, as ECF does not track the precise times when motions are docketed. But, as best as I can tell, several hours after the 1:30 p.m. deadline the case arrived at the Fifth Circuit. The ACLU requested an immediate ruling from the Fifth Circuit. Under the usual practice, when an emergency case arrives to the Fifth Circuit, the clerk assigns it a docket number, and it is assigned to a randomly drawn emergency panel. There is no reason to think the judges on this panel were tracking the case, let alone familiar with the complex procedural posture. Indeed, it is reasonable to assume that on Good Friday, judges would have already left the office and their clerks have gone home.
At some point on April 18 before midnight central time, the Fifth Circuit issued a per curiam order with a concurrence by Judge Ramirez. The unanimous panel (Ho, Wilson, Ramirez) found that the court lacked appellate jurisdiction. (I'll describe that opinion in another post.) I know the opinion came before midnight central time, because the opinion is stamped by the clerk with the date of April 18. Midnight central time is 1:00 a.m. ET. According to SCOTUSBlog, the Court's decision was released to the reporters around 1:00 a.m. ET. I can't pin down which order was issued first: the Fifth Circuit order or the Supreme Court order. It's possible the Fifth Circuit acted first. It's possible the Supreme Court acted first. There is something of a Schrodinger's Box problem. The case was both decided and it was not decided.
In the abstract, the ordering does matter. Had the Fifth Circuit issued some decision, the Supreme Court would arguably have some lower court ruling to review. This posture would avoid the Marbury problem. But if the Fifth Circuit had not yet ruled, there would be nothing for the Supreme Court to review. This temporal debate is irrelevant because the Supreme Court's order itself states that the Fifth Circuit had not yet ruled, and that was the basis for the Justices' vote. It is a curious question whether the Fifth Circuit's ruling after the Supreme Court's ruling retroactively provided some form of appellate jurisdiction nunc pro tunc. I am skeptical this could work. The general rule is that jurisdiction must be present at all times, and if jurisdiction is absent when the Court ruled, it cannot be restored after the fact. This academic question is ultimately irrelevant. At least five members of the Supreme Court issued an injunction against the executive branch without even having any lower court ruling. The Court basically granted an "Administrative Stay" of an executive action. This nomenclature is a perversion of federal court jurisdiction. If this is the Chief Justice's way of avoiding a constitutional crisis, he should promptly sign up for the benefits from A.A.R.P.
