SCOTUS upholds "ghost gun" rule; lower courts block Trump AEA deportations, anti-trans policies

On Wednesday's Supreme Court, D.C. Circuit, and D.C. District Court rulings. [Update: On Thursday, a second judge blocked Trump's anti-trans military ban.]

The U.S. Supreme Court on Wednesday upheld the Biden administration’s “ghost gun” regulation against a “facial” challenge — meaning, an attempt to say the entire regulation should be tossed out — on a lopsided 7-2 vote.

The question of whether these “kits” — often allowing people to quickly “create” workable guns from a set of disassembled materials — are able to be regulated under the Gun Control Act of 1968 (GCA) was a definitional question: Are the kits firearms, as the law defines them?

Yes, they can be, the court held.

This outcome was pretty clear from the October 2024 oral arguments, as I had written here at Law Dork at the time. I will give myself a moment to take a victory lap here. In that argument story, I went so far as to write, “For his part, Justice Neil Gorsuch appeared to be pre-writing an opinion upholding the rule“ and reversing the U.S. Court of Appeals for the Fifth Circuit.

On Wednesday, he did so, writing the court’s seven-justice majority opinion upholding the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule against that facial challenge. In a linguistics discussion of “artifact nouns” — which he cited experts who explained such nouns as being “‘characterized by an intended function,’ rather than by ‘some ineffable natural essence’” — he wrote (in a more easily understood way):

Imagine a rifle disassembled for storage, transport, or cleaning. It may take time to render the rifle useful for combat, but its intended function is clear. And, as a matter of every day speech, that rifle is a weapon, whether disassembled or combat ready. In the same way and for the same reason, an ordinary speaker might well describe the “Buy Build Shoot” kit as a “weapon.” Yes, perhaps a half hour of work is required before anyone can fire a shot. But even as sold, the kit comes with all necessary components, and its intended function as instrument of combat is obvious. Really, the kit’s name says it all: “Buy Build Shoot.”

It was not a close case — in part because of how little it decided. As a facial challenge, the court was leaving the regulation open to “as-applied” challenges — challenges alleging that specific kits, essentially, require enough work to assemble that Gorsuch’s linguistic discussion wouldn’t work on them.

Despite the outcome, we still managed to get six opinions from the decision — with Justices Sonia Sotomayor, Brett Kavanaugh, and Ketanji Brown Jackson writing brief concurring opinions and Justices Clarence Thomas and Sam Alito writing dissents.

But, importantly, the rule stands.

“The GCA embraces, and thus permits ATF to regulate, some weapon parts kits and unfinished frames or receivers, including those we have discussed,” Gorsuch concluded. “Because the court of appeals held otherwise, its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.”

Or, as Sotomayor wrote:

Essentially: Don’t listen to Alito; he lost.

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Trump’s Alien Enemies Act flights remain blocked

The U.S. Court of Appeals for the D.C. Circuit, on a 2-1 vote on Wednesday, kept the Trump administration’s efforts to quickly deport Venezuelans to a prison in El Salvador (or elsewhere) with no notice or process on hold for now.

All three judges on the panel wrote separately. Judges Karen LeCraft Henderson, a George H.W. Bush appointee, and Patricia Millett, an Obama appointee, concurred in the court’s decision denying the administration’s request for a stay of Chief Judge James Boasberg’s temporary restraining orders pending appeal. Judge Justin Walker, a Trump appointee, dissented.

Henderson’s opinion is a masterclass of understatement, directness, and careful judging. Explaining the government’s arguments before knocking them down, she wrote:

The government raises three arguments for why it is likely to succeed on the merits. First, the district court lacked jurisdiction to hear the case. Second, the political question doctrine bars consideration of the issues raised in this suit. Third, its conduct is lawful under the plain text of the Alien Enemies Act.

The jurisdictional question — which has been debated throughout the past 12 days — is the Justice Department’s claim that this challenge (in shifting arguments) is a habeas action or is based in habeas and that, as such, must be brought in the jurisdiction where the plaintiffs are located. Henderson dismisses this quickly because the plaintiffs dismissed their habeas claims, resting on the Administrative Procedure Act. (For his part, this is the majority of Walker’s dissent. He insists this is a habeas case, and, as such, it should be filed in Texas.)

As to the political question doctrine, Henderson wrote, “At the outset, the government’s suggestion that judicial review of the Alien Enemies Act is categorically foreclosed is incorrect.“ She then detailed how review is limited — the “scope” of the court’s review — and held that the government pointed to no reason why the questions raised here were not right in the heartland of the permissible (necessary even) areas of review.

Finally, as to the AEA itself, Henderson gives a textual, definitional analysis of its use of “invasion” that pairs as well with Justice Neil Gorsuch’s gun kits case opinion as two totally different cases conceivably could. After five pages of analysis, Henderson concluded, “The theme that rings true is that an invasion is a military affair, not one of migration.” Of the Trump administration’s contrary arguments, she then noted:

Henderson went on to detail the issues still “not decided” at this early stage before closing her opinion agreeing that the Justice Department had not justified its request for a stay of Boasberg’s TROs pending appeal.

As Millett made clear, a reason the court’s action here is necessary is that the Trump administration fully acknowledges that a stay would mean it would resume deportations under President Donald Trump’s proclamation invoking the Alien Enemies Act of 1798.

There is no reason, she wrote, “to allow the government to singlehandedly moot the Plaintiffs’ claims by immediately removing them beyond the reach of their lawyers or the court.”

Quoting from the D.C. Circuit’s oral arguments, she noted:

See Oral Arg. 1:44:39-1:46:23, J.G.G. v. Trump, 25-5067 (D.C. Cir. 2025), https://perma.cc/LB7B-7UFN (J. Millett: “My question is, if we were to grant the relief you request, would the government consider it necessary to allow time to file a habeas petition before removing people? * * * [Is it] the government’s position that it could immediately resume mass removals of the five named Plaintiffs and the class members, immediately? Government: “Your Honor, * * * we take the position that the AEA does not require notice *** [and] the government believes there would not be a limitation [on removal.]”).

To that, she wrote, ”The Constitution’s demand of due process cannot be so easily thrown aside.”

For now, at least, that is true.

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The latest on Trump’s anti-trans military ban

On Wednesday night, U.S. District Judge Ana Reyes denied the Justice Department’s request that she wipe her preliminary injunction blocking the Trump administration’s anti-trans military ban off the books because the military issued additional guidance about how it plans to implement President Donald Trump’s anti-transgender military executive order.

This ruling was expected given earlier arguments in the case. Also expected was Reyes’s move allowing the Trump administration to appeal and seek a stay of her injunction before it goes into effect at 7 p.m. Friday.

On Wednesday night, DOJ filed its notice of appeal to the U.S. Court of Appeals for the D.C. Circuit. As of 10:30 a.m. Thursday, however, there had been no filings on the docket at the D.C. Circuit.

[Update, 1:00 p.m.: The Justice Department filed its emergency motion for a stay pending appeal at the D.C. Circuit.

In addition to a stay pending appeal, DOJ asks for, at the least, an administrative stay by 7 p.m. Friday when the district court stay ends.]

[Update, 2:45 p.m.: The plaintiffs filed their response in opposition to DOJ’s administrative stay request:

The plaintiffs also propose to file their opposition to DOJ’s motion for a stay pending appeal by 6 p.m. Friday.]

Update: A D.C. Circuit order on the anti-trans military ban

[Update, 8:15 p.m.: The U.S. Court of Appeals for the D.C. Circuit issued an "administrative stay" on Thursday evening of the district court’s preliminary injunction that would block President Trump’s anti-trans military ban. In extremely unusual language, however, the order also directed that the plaintiffs can ask the court for the stay to be lifted if "any action occurs" under the implementing policies "that negatively impacts service members." The court, it stated, would “consider [such a request] expeditiously.”

What does that mean?

The judges aren’t ready to rule on the Justice Department’s motion for a stay pending appeal — in either direction — but they also understood that an administrative stay could lead to separations beginning before they can rule on the stay pending appeal request. This is so because the Defense Department previously stated only that “no involuntary separation processes may be initiated” until March 28.

As such, the appeals court judges are — I believe — signaling to the Defense Department to hold off on beginning separations while they consider the request.

The D.C. Circuit is extending the stay that U.S. District Judge Ana Reyes had placed on her own injunction. But, if DOD begins separations (or “any action” harming service members) before the court can rule on the stay pending appeal request, then the judges stated that the plaintiffs should immediately let them know and they will consider lifting the administrative stay — which would then immediately put Reyes’s preliminary injunction into effect.

Under the briefing schedule set forth in the order, this will be the status in the case for at least the next week.

This breaking news update was expanded, with the final update at 8:35 p.m.]

Update: A second injunction

[Update, 9:30 p.m.: Shortly after the U.S. Court of Appeals for the D.C. Circuit issued its administrative stay order, U.S. District Judge Benjamin Settle in Washington state issued a second preliminary injunction blocking the Trump administration from enforcing its anti-trans military ban.

Settle, a George W. Bush appointee, has been hearing Shilling v. U.S., another challenge to the policy. He was sharp in his opinion, writing that the government’s “arguments are not persuasive, and it is not an especially close question on this record.”

Settle also concluded that “any claimed hardship” the government could face from an injunction “pales in comparison to the hardships imposed on transgender service members and otherwise qualified transgender accession candidates” by the Trump administration’s ban.

In his order, he made clear the effect is to maintain the pre-Trump ban standards for transgender service members and for those trans people seeking to join the military.

Expect a quick appeal and stay request from the Justice Department.]

[Update, 9:55 a.m. March 28: DOJ has filed its notice of appeal to the Ninth Circuit.]