The Volokh Conspiracy
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Fifth Circuit Assigns A.A.R.P. v. Trump To New Panel For Reargument, Judge Ho Concurs
"I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function."
On Friday afternoon, the Supreme Court remanded A.A.R.P. v. Trump to the Fifth Circuit with very precise instructions. Today, the Fifth Circuit assigned the case to the next available oral argument panel:
Last Friday, the Supreme Court vacated the judgment of our court, which had dismissed this appeal for lack of jurisdiction. The Court remanded the case back to us for further proceedings, and directed us to proceed "expeditiously." A.A.R.P. v. Trump, 605 U.S. _, _ (2025). Accordingly, this matter is expedited to the next available randomly designated regular oral argument panel.
Judge Ho wrote an seven-page concurrence. He defended his colleague, Judge Wes Hendrix, against an unfair attack from the Supreme Court:
As an inferior court, we're duty-bound to follow Supreme Court rulings—whether we agree with them or not. We don't have to like it. But we have to do it. So I concur in our order today expediting our consideration of this matter, as directed by the Supreme Court. But I write to state my sincere concerns about how the district judge as well as the President and other officials have been treated in this case. I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function. See, e.g., In re Westcott, 135 F.4th 243, 250–51 (5th Cir. 2025) (Ho, J., concurring).
Ho responds to Chief Justice Roberts, who boasts that the role of the Supreme Court is to check the other branches:
It is not the role of the judiciary to check the excesses of the other branches, any more than it's our role to check the excesses of any other American citizen. Judges do not roam the countryside looking for opportunities to chastise government officials for their mistakes. Rather, our job is simply to decide those legal disputes over which Congress has given us jurisdiction.
Ho contrasts how Justice Barrett denied shadow docket relief for a religious liberty case, even as she granted shadow docket relief for alleged gang members:
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.
I'm glad the Court has their priorities straight.
Ho explains why it was entirely unreasonable to start the clock at 12:34 a.m.
But starting the clock at 12:34 a.m. not only ignores the court's express instructions respecting the Government's right to respond. It also ignores the fact that the Court is starting the clock at—12:34 a.m. We seem to have forgotten that this is a district court—not a Denny's. This is the first time I've ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion. 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.
Ho makes the point that other Presidents, who have clashed with the judiciary, received all the trappings of the presumption of regularity.
One former President tried to shame members of the Supreme Court during a State of the Union address by disparaging a recent ruling. See Barack Obama, Address Before a Joint Session of the Congress on the State of the Union, 1 Pub. Papers of the Presidents (Obama 2010) 75, 81 (Jan. 27, 2010). That same President also suggested that it would be illegitimate for the Supreme Court to declare an act of Congress unconstitutional—while a case challenging his signature legislative achievement was pending before the Court. See, e.g., Peter Wallsten and Robert Barnes, Obama's Supreme Court comments stir debate, Wash. Post, Apr. 4, 2012. Another former President was disbarred from practicing law before the Supreme Court. See In re Clinton, 534 U.S. 1016 (2001). See also Editorial, Biden's Student Loan Boast: The Supreme Court 'Didn't Stop Me', Wall St. J., Feb. 23, 2024 ("American Presidents may not like Supreme Court decisions, but most since Andrew Jackson haven't bragged about defying its rulings."). Yet I doubt that any court would deny any of those Presidents the right to express their views in any pending case to which they are a party, before issuing any ruling. Our current President deserves the same respect.
But this president does not get the presumption of regularity from Chief Justice Roberts and his colleagues. I've been thinking about this topic of late. Why is the President afforded the "presumption of regularity"? It's not because of the positions he takes or how his lawyers genuflect before the judiciary. It is because he was certified as the President. And he maintains that presumption until he is no longer in office. When judges can decide the President no longer receives that presumption, we have seen a judicial coup.
Earlier today, I spoke to the Austin Federalist Society Lawyer's Chapter about President Trump's first 100 days. I discuss at some length the proceedings in A.A.R.P.
Much more in due course, stay tuned.
