The Timing of the 5th Circuit's Ruling in A.A.R.P. v. Trump

The 5th Circuit and Supreme Court decided the case at *exactly* the same time.

On Saturday evening, I wrote a series of posts about A.A.R.P. v. Trump. This case rocketed from the District Court to the Supreme Court in approximately twelve hours. Still, the timing of the case remained a bit fuzzy.

For example, the New York Times reported:

The Fifth Circuit issued its ruling in the small hours of Saturday morning, denying the A.C.L.U.'s request for emergency relief as premature.

Steve Vladeck offered this timing:

Then, a little before 1:00 a.m., the Supreme Court stepped in. As noted above, the cryptic order specifies that "The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court." And it notes that (1) the government can respond to the emergency application once the Fifth Circuit rules (which it did even later in the evening—denying emergency relief); and (2) Justices Thomas and Alito dissented, with an opinion from Alito apparently forthcoming.

A reporter told me the Supreme Court press corp was notified at 12:56 a.m.

So which came first? The Supreme Court's ruling or the Fifth Circuit's ruling?

Well, I wasn't certain, so I emailed the Fifth Circuit's clerk, Lyle Cayce, who provided this chronology:

The clerk's office received the Notice of Appeal at 3:02 p.m. and opened the appeal and assigned the matter to a randomly selected panel at 4:33.

The panel returned an order at approximately 11:56 p.m. and the clerk prepared the order using the Friday date. But docketing the order took a few minutes, and the docket entry was not completed until 1203 a.m. on Saturday.

After docketing the order, the emergency duty clerk emailed a copy to the Supreme Court.

I am grateful to Lyle for his many years of dedicated service to the Fifth Circuit.

To make things simple, I will convert all of Lyle's central time stamps to eastern time stamps.

The case arrived to the panel around 5:30 p.m. ET. At some point between 5:30 p.m. and 12:56 a.m. ET, the panel voted that there was no jurisdiction. Recall that there was both a per curiam order, and a concurrence by Judge Ramirez. This was all done without the benefit of any government briefing. We should also account for the fact that this was Good Friday, the Judges had probably already gone home from work, and their clerks were not on call. The panel returned an order at 12:56 a.m. ET. Seven minutes later, at 1:03 ET, the order was docketed, and sent to the Supreme Court.

If my math is right, at 12:56 a.m. ET, the Supreme Court announced its decision, and the Fifth Circuit panel released its decision. The orders were announced simultaneously. There is a fun question about what time actually counts? When the judges issue an opinion? When it is docketed? Released to the press? Who knows. As I said before, we are in Schrödinger's Box territory here.

This brings us back to a point from Justice Alito's dissent.

When this Court rushed to enter its order, the Court of Appeals was considering the issue of emergency relief, and we were informed that a decision would be forthcoming.

The Court knew a ruling was forthcoming. And if I had to guess, the 5th Circuit clerk would have told the SCOTUS clerk that the panel would find no jurisdiction. The Supreme Court likely had this information at hand. But rather than wait a few more minutes, the Justices issued the ruling they did.

Why? My theory: the Chief Justice thought it was better to suggest the Fifth Circuit was being dilatory, and not have to deal with any of the complex jurisdictional issues. There is also the question of whether everyone who voted with the majority knew how quickly the Fifth Circuit opinion was coming.

The Supreme Court cannot blame a lower court for not acting promptly enough, even as a lower court is acting diligently and ruling in time for appellate review.

I think there is a problem here that warrants further investigation by the press. There are hundreds of reporters who check out which flags are in front of Justice Alito's house. Maybe someone can check out the communications between the Fifth Circuit and the Supreme Court.

Ultimately, I don't think this affects the Marbury issue. Many people have cited a host of statutes that permit cert before judgment and the like. But in all those cases, there is still some lower court judgment to review. If any statute purports to grant what "appellate" jurisdiction that is in fact "original" jurisdiction, then we have a Marbury problem. Has there ever been a case where the district court did not issue any judgment, the circuit court (at the time the court voted) took no action, and the Supreme Court still exercised jurisdiction? I think the answer is no, but I welcome any suggestions.

Comments

[David Nieporent]

I've lost track, but I think this is post #5 from Blackman on this case, and still not one substantive thing said.

[Mark N.]

There once was a poster named Blackman
Of law his analysis lacked, man
Yet the posts came out fast
Each as dumb as the last—
South Texas's scholar Prof. Quackman

[Don Nico]

Bravo!

[Senor Wolf]

Instead we get whataboutism about the journalistic interest into flags at Kennedys house. And that the timing of this email is somehow more of interest than the fact that the Supreme Court felt it had to issue this really unusual order because the administration has been ignoring court orders in bad faith and deporting people to foreign prisons without due process.

I'd love to hear an analysis of this opinion from anybody but Josh. I wish there was a way to mute his posts.

[ReaderY]

I think the purpose is clear enough and the timing seems straightforward. The Supreme Court knew at approximately midnight that the 5th Circuit would soon post on its web site that it was denying the petitioners’ request for a stay. So the Supreme Court ordered its own stay. It did this between the time the 5th Circuit emailed the Supreme Court about its action and the time it posted on its (the 5th Circuit’s) website and made it official. And the Supreme Court did this intentionally, in order to make sure the Administration wouldn’t respond to the 5th Circuit’s denial by immediately starting flying people out in the wee hours of Saturday morning before the District Court ir any other court could act.

That’s why it moved so quickly.

[Don Nico]

That sounds highly plausible

[Josh R]

But in all those cases, there is still some lower court judgment to review.

So what? In Dean Foods, SCOTUS held the circuit court had jurisdiction even though no district court had heard the case. That's not about original jurisdiction. It's about preserving appellate jurisdiction.

[Jere]

Dean Foods v. FTC is in point, i.e. a case that stands for the proposition that under the All Writs Act, the Supreme Court can issue an injunction despite any action taken on the request by the next lower level, the 5th Circuit. In that case, SCOTUS held that the 7th Circuit had authority to issue a temporary injunction at the bequest of the FTC (as the initiator of the administrator proceeding ) even though in its capacity as an adjudicator of the cease-and-desist proceeding (the next lower level) , the agency had not yet reached a decision that a cease- and- desist order should be issued.

[TheAmazingEmu]

Dean Foods seems directly on point. Good deep cut on Federal procedure.

[Zarniwoop]

Yes, but that still won't stop the folks wearing Trump Kneepads(TM) from whinging "buh-buh-buh no jurisdiction!"

[MollyGodiva]

Analogy:
Suppose the administration was going to execute people who have not been convicted of a crime. They had previously done that, claimed to have a right to do that, and seem to ignore court orders telling them not to do that. The government lawyers says that they have no plans to execute anyone that night but they are in the process of escorting a new batch of prisoners to the yard to be shot.

What is SCOTUS supposed to do? Wait to see if the 5th will stop them? Wait 24 hours for the government to file a response? No, the first step is to stop all executions of people who have not been convicted of a crime and sort out the rest later.

On Friday the government had a bus load of prisoners headed to the airport.

[MaddogEngineer]

Yes, people are making appeals and analogies to the death penalty. I'm unsure whether such appeals are legitimate. Not every injustice has a judicial remedy. Some people are assuming otherwise, and that it justifies warping standing and jurisdiction precedents, because Orange Man bad.

[MollyGodiva]

When the government is trying to violate court orders by moving as fast as they can to do their injustice, the courts must bend some procedural guidelines to counter the government. This injustice does have a judicial remedy. And yes, Orange Man very bad, and so are all of his fascist supporters.

[MaddogEngineer]

Facts not necessarily in evidence. The government has no obligation to "go slow" so that a court has time to issue a restraining order. That thinking is what is making a mockery of all this, with judges rushing to make rulings with little consideration about whether they have the authority to make them.

[Randal]

The government has no obligation to "go slow" so that a court has time to issue a restraining order.

Yes, actually, it does. This is the whole point of the Fifth Amendment. As affirmed by SCOTUS in this context only last week 9-0.

[MollyGodiva]

If the government has no obligation to go slow, neither do the courts.

[Randal]

Not every injustice has a judicial remedy.

What a strange thing to say. This injustice does have a judicial remedy. You want the courts to pretend like there's no remedy so you can get the unjust outcome you want, or what's going on with you?

[MaddogEngineer]

Does it? This begging the question, according to Scalia. That you would just assume this because you agree with the outcome is telling on yourself.

(I inclined to agree with the SCOTUS action here. But because everything here is "unprecedented", I'm uncomfortable with people just breezily saying it's a-okay.)

[Randal]

I mean, you have to be pretty far up Trump's butt to entertain the idea that in America of all places there's no judicial remedy to him spiriting people away to foreign torture prisons with no hearing.

[MaddogEngineer]

You're a fundamentally uncurious person. Because you can't imagine anyone questioning the law here as being anything other than up Trump's butt.

[Randal]

Being up Trump's butt is the generous assumption. But go ahead, explain to us why you think America plausibly lacks a judicial remedy to executive kidnappings.

[Sarcastr0]

you can't imagine anyone questioning the law here
But you question the law based on vibes, not understanding or expertise.
When practitioners (I'm not one) point out flaws in your reasoning, you just double down.

I'm with you right up until you don't change your position or learn anything. Engagement beyond your area of expertise is cool and good. But refusing correction is worse than if you'd never engaged at all. The kids call that doing a nogrowth.

What's unserious is not realizing the utility of humility.

[Foxwhelp]

Not every slogan is meaningful. To say “not every injustice has a judicial remedy” is really even more uninteresting than a typical Blackmun post because it’s just a bit of hand waving preventing you from even asking yourself “does this one?” And when this one is the President of the United States attempting to more or less permanently incarcerate (at least if there's any end to it the President insists that is beyond his ability to bring that about) people with no trial of any kind, then maybe you're surprised that people are looking for remedies but anyone who's not just completely abandoned any interest in liberty isn't.

Also people keep saying "orange man bad" as though that is sufficient to dismiss any criticism of this administration and that it represents the sum total of what is meaningful in what the president's critics have to say. But the president is being criticized for a staggeringly large number of articulable, articulated, and convincing reasons. Saying "orange man bad" in the face of that really just amounts to "I'm a dipsh*t" who isn't clever enough to have any meaningful response to what you are saying but am too much of an ass to acknowledge that you're right so I'll just pretend to myself that I'm funny"

[MaddogEngineer]

Acknowledging that "not every injustice has a judicial remedy" is exactly the question we all should be asking. Because if you don't, you get bad decisions that violate the law.

Of course you engage in a diatribe without even stopping to wonder which side I come down on here. As I've said in other comments, I'm inclined to agree with what SCOTUS has done here. But of course, no one is allowed to question whether Alito has a point here. Because as I've observed, the Orange Man is bad, so when he's doing something like this, it's wrong, Q.E.D.

Even your summary: and when this one is the President of the United States attempting to more or less permanently incarcerate (at least if there's any end to it the President insists that is beyond his ability to bring that about) people with no trial of any kind, fundamentally misrepresents what is going on here. The government in many cases here absolutely has the right to detain and possibly deport these aliens. An alien's liberty interest is limited. Personally I am not in favor of the policy using the AEA, but when people try and apply criminal procedures to immigration actions, misrepresenting what is happening, I know they are not serious about the law. I saw this movie during the first administration, when EVERYONE was absolutely certain the "Muslim" immigration executive order was illegal. Well.

The only allowable position is perpetual outrage about anything and everything Donald Trump does. It's not enough that I didn't vote for him. I have to be enthusiastic about distorting the law to save it. Otherwise I'm a dipshit.

[Randal]

The government in many cases here absolutely has the right to detain and possibly deport these aliens.

Sure. Nobody's saying Trump can't deport people. He just needs to follow due process. Not criminal due process, just regular immigration due process.

The fact that you're having such a hard time with that concept is what makes you a dipshit.

[MaddogEngineer]

Sorry, when a district court tried to retain jurisdiction, when it never actually had it, I have justification to be skeptical.

Just like some of these other emergency TRO's are falling by the wayside in other cases not necessarily immigration, once the courts of appeal start looking at them.

By all means, continue the name calling! Because I'm obviously too dumb to understand what's going on.

[Randal]

I'm obviously too dumb to understand what's going on.

It sure seems like it given how severely you're misunderstanding the other side's arguments.

[Foxwhelp]

It's not a matter of failing to ask whether every injustice has a judicial remedy. Because here it's a question with a perfectly obvious answer. This is not a case of a man who's been shipwrecked for ten years on a desert island and declared dread who returns to find that his house has been sold as a result to a third party acting in good faith. That's an injustice without a legal remedy. This is the United States Government at the order of the President of the United States attempting to subvert the rule of law by rushing people to El Salvador before the courts are given a chance to determine just what their rights are and what actions toward them are lawful. THAT is an injustice that has a remedy and must have a legal remedy in any society that takes seriously the idea of the rule of law. And anyone who, in the face of that, attempts to dismiss the whole problem with a slogan like "not every injustice has a judicial remedy" or "orange man bad" is, in fact, a dipsh*t who has nothing to say.

This is not "perpetual outrage" it's a natural response to a clear and significant attack on liberty that should be of real concern to everyone who values liberty. You've already made it clear that you don't

[bernard11]

Not Orange Man Bad, but Orange Man has a history of lying to the courts about these matters, so his statements and those of his attorney are worthless.

There is plenty of time to deport these individuals if they are shown to be subject to deportation, but, per the Administration, absolutely no way to bring any of them back if their deportation was an error.

[JDMD]

"Has there ever been a case where the district court did not issue any judgment, the circuit court (at the time the court voted) took no action, and the Supreme Court still exercised jurisdiction? I think the answer is no, but I welcome any suggestions."

A better question:
"Has there ever been a Blackmon article that did NOT explicitly side with the Trump administration? I think the answer is no, but I welcome any suggestions."

[MatthewSlyfield]

He did not side with the Trump admin on the interpretation of the 14A citizenship clause.

[A Japanese Student]

Does anyone have any info on lower court proceeding in Quinn v. Laird, 89 S.Ct. 1491, 2 Rapp 421 (1969)? The lower courts did grant a temporary stay in favor of applicant, but the timing as described by Justice Douglas' in-chambers opinion suggests it was entered solely to permit appellate review.

[A Japanese Student]

To be clear, I believe the argument made by Josh is without merit. But it is not something I could dismiss as frivolous, because there is a more-than-zero chance that Dean Foods only applies to courts of appeal, not the Supreme Court.

I am currently doing a quick search on Rapp's Reports, which covers in-chambers opinions (which should cover most emergency docket orders until the Rehnquist Court). I could not yet locate a case that fits the exact definition Josh proposed.

In the sense that no court for which the Supreme Court has regular appellate jurisdiction over has issued a decision, Nebraska Press Ass'n v. Stuart, 423 U.S. 1319, 2 Rapp 668 (1975) is instructive. In that case however, there was a judicially imposed restraining order by a state-court judge, so the constitutional situation would not be the same.

[MaddogEngineer]

The comments on the last Blackmun post were a shitshow. Maybe this one will be different, but probably not, to actually address whether or not Alito is correct with respect to the SCOTUS jurisdictional authority versus the All Writs Act to preserve future jurisdiction.

But of course, everyone is pretty much playing team sport, arguing (im)morality or past injustice justifying bending the rules now, especially by the irreparable harm standard. Treating this like death penalty cases, but without the underlying jurisdictional justification.

[Randal]

It seems pretty clear cut to everyone but you, Josh, and Alito. There's no rule-bending. The All Writs Act allows the court to preserve future jurisdiction. The directive they issued was tailored to do exactly that.

Why would the All Writs Act enable them to do so in all the other unusual situations but not this one?

[Mr. Bumble]

"There's no rule-bending."
Yes, SC Calvinball.

[MaddogEngineer]

Yes, just like first term Trump immigration executive order "banning Muslims" was obviously illegal. Everybody knew it!

No reason to engage with Alito's critique, because it's obviously wrong!

[Randal]

That's such a strange comparison to make because it was SCOTUS that ultimately (sort of) ruled in Trump's favor on the Muslim ban.

In this case, SCOTUS already ruled. We know their answer: the All Writs Act covers this case. They ruled against Trump.

How can you be so sure they were right about the Muslim ban but not about the All Writs Act?

[MollyGodiva]

The Muslim ban clearly violated 1A. SCOTUS was just too chickenshit to say so.

[Josh R]

Alito's argument against the All Writs Act is conclusory and conflicts with Dean Foods (which he does not even mention)

this Court had jurisdiction only if the Court of Appeals had jurisdiction of the applicants’ appeal [...] and the Court of Appeals had jurisdiction only if the supposed order that the applicants appealed amounted to the denial of a preliminary injunction.

He then says no deportations were imminent (in which case the unmentioned Dean Foods would not apply). But that conclusion relies on trusting Trump, something the Court clearly did not do.

[Zarniwoop]

Well, the S.Ct. majority wasn't nearly as disingenuous as Alito, and parsed what the gov't actually said, which was that deportations could occur.

As discussed below with reference to Prof Vladek and an article in TheHill, Alito directly misrepresented what the gov't attorney actually said: “I’ve spoken with DHS, they are not aware of any current plans for flights tomorrow, but I have also been told to say that they reserve the right to remove people tomorrow.”

(emphasis added) And that probably made all the difference for the non-Alito majority of the S.Ct.

[WHODINI]

https://www.stevevladeck.com/p/145-justice-alitos-misbegotten-dissent

Here is some actual legal analysis.

[MaddogEngineer]

This is a great summary, thanks. It was perhaps too much to ask the comments "experts" to engage with Blackmun's, um, post.

I've been making the point that the rules matter, but in the case of this administrative stay, over a holiday weekend, it seemed the right thing for the Court to do. I just wasn't sure whether there was sufficient legal justification, given Alito's claims about jurisdiction and the timing of SCOTUS order versus the court of appeals. Certainly not going to get that from Blackmun.

[Zarniwoop]

There's this excellent observation:

Alito claimed that there was “little concrete support” for the allegation of “imminent danger of removal.” He emphasized that “an attorney representing the Government in a different matter … informed the District Court … that no such deportations were then planned to occur either yesterday, April 18, or today, April 19.”

But here is what the attorney actually said on April 18: “I’ve spoken with DHS, they are not aware of any current plans for flights tomorrow, but I have also been told to say that they reserve the right to remove people tomorrow.” That reservation, which Alito omits, changes the meaning dramatically. If I told you that I have no plans to set your house on fire but I reserve the right to do so, would that constitute “concrete support” for your feeling of “imminent danger”? (It has since been reported that buses carrying Venezuelans were headed to the airport on April 18 before they abruptly turned around.)

https://thehill.com/opinion/judiciary/5258123-why-is-justice-alito-so-trusting-of-the-trump-administration/

[Zarniwoop]

I see that Prof Vladek makes much the same point in his discussion of bullet point 6, though without the full quote of Atty Ensign where he states that he was told to say that the gov't "reserve[d] the right to remove people tomorrow", meaning deportations could occur at 12:01am Saturday (presumably local time in Texas).

And that's the sort of weaseling the rest of the S.Ct. had very little patience for - correctly, IMHO. The gov't tried to again spirit people away, this time on a holiday weekend, so that the White House could have another smirking "Oopsie!" press conference.