The Volokh Conspiracy
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Revisiting A.A.R.P. v. Trump In Light Of United States v. Maduro
The United States military is like a Denny's.
As regular readers know, I do not use the internet on Shabbat. From sundown on Friday until an hour after sundown on Saturday, I am blissfully offline. And, time and again, news breaks while I am offline. Indeed, the atrocities of October 7 occurred while I was incommunicado. (Many Jewish people used their phones on Shabbat for first time during this awful day.) In April 2025, the litigation over A.A.R.P v. Trump broke during Good Friday. And the capture of Nicholas Maduro also occurred in the early hours of Saturday morning.
Of course, I do not live in a hermetically sealed bubble, so I heard news about the military operation in Caracas throughout the day. But I waited until Saturday evening to sign online, and study the incident carefully. Indeed, there is some virtue in not reading early reports, which tend to usually be incomplete or inaccurate. (During breaking news, especially mass shootings, I try not to read any news until the dust has settled.) By Saturday night, the facts from Venezuela have been fairly established.
From a legal perspective, I do not have much to add to what Jack Goldsmith wrote about the operation. We can safely ignore any arguments about the U.N. Charter.
Instead, it is useful to revisit A.A.R.P. v. Trump in light of United States v. Maduro. When Trump first began the efforts to remove alleged members of Tren De Aragua under the Alien Enemies Act, all the usual suspects laughed at him. They alleged there was no real national security concern. They charged Trump (once again) with racism and bigotry. Judge Boasberg ordered the planes to turn around from his vacation home, no doubt, because he thought the entire operation was a sham. If Boasberg thought this was a serious national security procedure, he likely would have not been so eager to intervene. Lawyers told federal judges in Texas that there was not really an armed conflict. (The upcoming Fifth Circuit en banc argument should be lit.) The United States Supreme Court, including all three Trump appointees, rejected the President's powers on the emergency docket without even waiting for the lower court to rule.
In reality, the Trump Administration has been planning a months-long framework concerning Venezuela and Maduro. No one, not even the enlightened Judge Boasberg, is privy to all of those details. Indeed, I suspect the lawyers who are asked to argue in D.D.C. are not always told the full story. In this case, we witnessed Lawfare at its worst because it directly affected national security. Thankfully, Judge Boasberg did not order the 150 aircraft to turn around.
It is also useful to ponder that Trump's two greatest losses before the Supreme Court concerned his presidential powers over protecting national security: Trump v. Illinois and A.A.R.P. v. Trump.
A generation ago, the litmus test for a Supreme Court Justice was how they would rule on "War on Terror" cases. It was well reported that John Roberts rose to the head of the pack, at least in part, because he was seen as a strong vote to support the Bush foreign policy. Recall that Roberts interviewed with the Attorney General for the Supreme Court while he was presiding over Hamdan, and Bush interviewed him on the same day the case was decided. Talk about auditioning!
Yet, in the present day, Roberts, as well Justice Kavanaugh (who was Bush's staff secretary!), and Justice Barrett ruled against Trump in both cases. And the third foreign policy defeat might be the tariff case--the centerpiece of Trump's entire foreign policy. If Trump loses, Justice Gorsuch and possibly Justice Barrett will rule against him. I assure you that Trump will be unconcerned with Justice Gorsuch's interest in reinvigorating the non-delegation doctrine.
I have been giving some more thought of late about who Trump's next Supreme Court nominee would be. Indeed, my thinking was nudged by a telling line in Ed Whelan's predictions for 2026. Ed wrote that Justices Thomas and Alito are likely not to retire because "each justice has ample reason to doubt that whoever was picked to replace him would be as effective." Does anyone wonder why?
It is no surprise that Trump went out of his way to effusively praise Thomas and Alito and hope they do not resign. Trump's time horizon ends in January 2029. He doesn't care what happens to the composition of the Court after that date. And both Alito and Thomas are almost certainly going to make that mark. Yet, Trump has far more restrained compliments about his own three picks. The most he could say about Justice Barrett was that she was "a very good woman" and "she's very smart." These are the sort of saccharine compliments Trump dispenses like Pez.
If there is a vacancy, Trump cannot lose sight that his three picks ruled against him in Illinois, A.A.R.P., and perhaps the tariff case. (Though I have the unorthodox take that Trump wins that case.) What does Trump do with these votes? I think he will ignore all of the voices who advised him on selecting his first batch of nominees. I don't think he even picks a judge. He will likely pick someone he knows and trusts, and who has been in the trenches with him. Solicitor General John Sauer seems like the most likely pick--especially if he manages to win the tariff case.
