The Volokh Conspiracy
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Solicitor General Is Still Waiting For An Actual Ruling In A.A.R.P. v. Trump
Nearly a month has elapsed since the ACLU's very good Friday.
On Friday, April 18, the Supreme Court issued an administrative stay of the alien's removal in the case formerly known as A.A.R.P. v. Trump.
There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. 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. See 28 U. S. C. §1651(a).
The Court ruled mere moments before the Fifth Circuit issued its order. Now, nearly a month later, the matter remains pending before the Court.
It is obvious to me that the Supreme Court was not really interested in waiting for the Fifth Circuit. Indeed, the Court probably thought it better to issue this interim ruling that created the impression that the bad judges in Texas were dragging their feet. No one in the media would pay attention to the case in the day and weeks after. All that matters is the initial headline.
But in reality, the government is stuck. The Supreme Court provisionally certified a class, which the District Court declined to certify. Many of the aliens in Texas are clearly removable under other authorities, but the Court's blunderbuss injunction blocks their removal on any grounds. And the Supreme Court has shown not even the slightest interest in resolving this dispute.
The Solicitor General has now come back to the Court with a supplemental memorandum regarding the emergency application, that has been pending for nearly a month.
The brief explains that the plaintiffs no longer need the Court's emergency ruling, since they have pursued further judicial relief:
Intervening developments make clear that neither interim nor permanent relief is warranted; that the equities now weigh particularly heavily against relief; and that, at a minimum, this Court should modify the temporary injunction to allow the government to remove these unlawfully present aliens pursuant to non-AEA authorities, which applicants have conceded the government should be able to do. . . .
Other developments also bear out the lack of grounds for relief. It has now been more than three weeks since this Court entered an order precluding the removal of all members of the putative class. That three-week time frame constitutes more than adequate opportunity to pursue judicial relief under any standard. Thus, no putative class member now has any plausible claim to denial of notice or opportunity to be heard. See Trump v. J.G.G., 145 S. Ct. 1003 (2025).
Moreover, many of the aliens in the "putative class" can be removed under other authorities. Yet the government is still handcuffed because of John Roberts's late night blue plate special:
Meanwhile, the equities have also swung further against relief. The Department of Homeland Security (DHS) estimates that there are some 176 putative class members. App., infra, 50a. Because this Court's order categorically prohibited removing those 176 putative class members even under non-AEA authorities, the government has been detaining these aliens instead of removing the many putative class members who may be otherwise removable under non-AEA authorities, such as Title 8 of the United States Code. Unsurprisingly, given that the putative class members were detained based on their membership in a designated foreign terrorist organization, they have proven to be especially dangerous to maintain in prolonged detention. Some 23 putative class members recently barricaded themselves in a housing unit for several hours and threatened to take hostages and harm ICE officers, as described in the appended Declaration of Joshua D. Johnson, Acting Field Office Director for the Dallas Field Office of U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security.
I remain baffled why the Court is willing to move heaven and earth to provide assistance to criminal aliens, but does nothing when other litigants come to the Court seeking emergency relief.
The government offers an easy way out of this morass:
Especially given those developments, the government requests that the Court lift its administrative injunction and deny further relief. The putative class members are not proper parties and have received adequate notice and opportunity to pursue habeas petitions. And the named petitioners have filed habeas petitions and have not shown an imminent risk of removal while those petitions are pending. At a minimum, the Court should modify the administrative injunction to permit the removal of any aliens eligible for removal under non-AEA immigration authorities.
I would hope that over the past month, Justices Gorsuch, Kavanaugh, and Barrett have seen how flawed the process was. Perhaps they joined the Chief's opinion based on less-than-perfect information about what the Fifth Circuit would do. Justice Alito and Thomas's dissent has improved by the day. This time for reflection may alter the relief offered.
