Supreme Court blocks some Alien Enemies Act removals in Texas-based case
The late-night order from the Supreme Court came amidst fears the Trump administration was preparing for more flights to El Salvador as soon as Saturday.
A little before 1 a.m. Saturday, the Supreme Court issued an order blocking the Trump administration from removing people from the United States who the administration has claimed or will claim are subject to President Donald Trump’s Alien Enemies Act proclamation and are in custody in the Northern District of Texas.
It was an unusual order in an unusual moment.
The Saturday morning order from the justices followed a quick few days of efforts from lawyers who have grown concerned about the apparent movement of people who the Trump administration appears to believe are subject to the AEA proclamation to the Bluebonnet Detention Center in Anson, Texas.
At a Friday night hearing on the same question but in a different request before Chief Judge James Boasberg in the district court in D.C., DOJ’s Drew Ensign said that the Department of Homeland Security stated that they "are not aware of" any plans for flights on Saturday — but he also added that DHS wanted to "reserve the right" to have flights on Saturday.
The Supreme Court’s early Saturday morning action came more than a month after the Trump administration flew at least two planes full of people out of the country under the AEA proclamation on March 15 and refused to turn the planes around despite a district court’s order that they do so.
It also came in the days after Trump, Attorney General Pam Bondi, Stephen Miller, and others have seemed to almost take joy in mocking the Supreme Court’s order that the Trump administration “facilitate” the release of Kilmar Abrego Garcia from El Salvador’s CECOT facility. Although a different, non-AEA case, it is related insofar as it involves the Trump administration removing someone from America and sending him to CECOT.
[Update, 11:45 p.m.: After 11 p.m. Saturday, Justice Sam Alito issued his promised dissent, criticizing the court for having “hastily and prematurely granted unprecedented emergency relief.” He was joined by Justice Clarence Thomas.]
Although a temporary restraining order prevents people within the Southern District of Texas (as well as a few other districts across the country) from being sent out of the country under the AEA proclamation, neither that order nor any other order protects those in the Northern District of Texas, where Bluebonnet is located.
The habeas filings have all followed the Supreme Court’s 5-4 order in Trump v. J.G.G. on April 7 holding that AEA challenges had to be brought in habeas actions — and vacating the prior classwide order, brought under the Administrative Procedure Act, blocking AEA proclamation-based removals nationwide.
As such, a habeas petition was filed by lawyers from the ACLU on behalf of two petitioners and a “putative class” in the Northern District of Texas on April 16. As with the other recent filings, the aim was for this to protect anyone from AEA proclamation-removal within the district. That is the putative, or proposed, class 1:
On April 18, however, U.S. District Judge James Wesley Hendrix, a Trump appointee, became the first judge I am aware of to deny a post-J.G.G. request for a TRO in a habeas AEA action.
“The petitioners … have pointed to no instances of the government attempting to remove individuals under the Act without sufficient notice or process after the Supreme Court entered its order and opinion in J.G.G., and neither have they pointed to affirmative representations by the government that it will do so in the immediate future,“ Hendrix wrote in relevant part.
Hendrix, in essence, ruled that because the government has stated in the case that it won’t remove the petitioners while their habeas cases are pending — the case before Hendrix — then they can’t meet the standard for a TRO. And, because they can’t meet the standard for a TRO, Hendrix also did not rule on the class certification question. (Of course, if they found a new plaintiff to add, that person then would have a pending habeas case and the circle continues. In other words, under Hendrix’s logic, no TRO is possible because a filing itself temporarily protects a person, but there could be no classwide relief until later in the case, so others could be removed within the district in the meantime.)
On Friday, the lawyers filed a notice of appeal, sought an injunction pending appeal in the U.S. Court of Appeals for the Fifth Circuit, filed an application for an injunction and immediate administrative stay at the Supreme Court, and a motion for an immediate ruling on an earlier request for a new TRO from Chief Judge James Boasberg in the original J.G.G. case.
Although there were differences in the filings, the Supreme Court application summed up the lawyers and petitioners’ significant concern here:
The Government’s actions to-date, including its lightning-fast timeline, do not give members of the proposed class a realistic opportunity to contest their removal under the AEA. The notices some members of the proposed class have received are in English only and do not inform proposed class members of their right to contest the designation in a federal court.
In the evening on Friday, Boasberg held a hearing on the request before him.
Although he clearly had concerns about Ensign’s answer regarding what DHS was willing to commit to as to flights and found the notice “particularly troubling,” Boasberg ultimately was not convinced he had the authority to act in the way being sought by the ACLU’s Lee Gelernt in light of the Supreme Court’s J.G.G. order and declined to issue a TRO on Friday.
As Friday drew to a close, there was also no word from the Fifth Circuit.
So, a little before 1 a.m., the Supreme Court issued its order.2
And, we learned that Justices Clarence Thomas and Sam Alito noted their dissent from the order, and that Alito is writing about it.
On applications (shadow docket requests), the justices do not need to announce their vote. So, while we know that a majority supported the order and know that Thomas and Alito did not, we do not know the actual vote for certain. (There are many reasons — case-specific, strategic, long-term, personal, political, or otherwise — why justices might not want their vote known publicly in a shadow docket ruling, just as their are times — for similar, or opposite, reasons — why they might want their vote known.)3
The order from the high court was unusual on several grounds, pointing to the fact that a majority of the justices thought acting now was necessary. Specifically, this order was issued:
after midnight,
before the government even responded (perhaps most irregular),
while a Fifth Circuit request remains pending, and
before a dissenting justice could finish their statement.
In addition to the case-specific reasons for the necessity of the order, the order also potentially reflects a growing awareness from at least some of the justices that the nation is in a precarious moment because of the executive’s actions and inactions, as well as the responses (or non-responses) from the other branches.
Court action — and specificity — is necessary.
A few minutes after the Supreme Court’s order, the Fifth Circuit issued an order of its own — denying the injunction pending appeal and dismissing the appeal altogether.
The panel of Judges James Ho, Cory Wilson, and Irma Carrillo Ramirez noted in a per curiam order that the request was still appropriately before Hendrix.
“Just yesterday, the district court entered an order indicating that ‘[t]he government states that authorities will not remove the petitioners during this litigation, and it will alert the Court if that changes,’” the court noted. “If Petitioners are concerned that [the government’s] position has changed, they should have litigated these concerns before the district court in the first instance.“
So, where does that leave us?
With Fifth Circuit action, per the Supreme Court order, Solicitor General John Sauer is to file a response “as soon as possible” at the Supreme Court.
I also would expect further action from the ACLU before Hendrix on Saturday.
In the meantime, and very directly stated by the Supreme Court, “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.“
A similar point was reiterated in the first sentence of the application filed at the Supreme Court, as I noted on Bluesky.
Although it wasn’t explicitly clear from the order itself, the docket itself was updated overnight to reflect that the matter, submitted to Justice Sam Alito as circuit justice for the Fifth Circuit, had been referred to the full court. (This is normal process and would be expected; the only reason I note it is because it wasn’t explicitly clear from the face of the order that it was done and, as of 4:00 p.m. and after significant discussion on Bluesky, it remains unclear whether it was Alito who referred the matter to the full court.) This footnote was added after initial publication, with the most recent update at 4:00 p.m.
This paragraph was added after initial publication, with the final update at 5:00 a.m.
This should not be so hard and they need to get the others back and all deserve due process. This is still America.
I’ve been trying to keep up with, and read, all the filings in these cases, but I have to ask: at what point does a filing need to specifically call out that the Administration has not acted in a way that should continue to afford it a good faith assumption? The logic from the district court and 5th circuit denying the TRO makes zero sense when you consider the already-illegal actions of the Administration, and the currently ongoing cases for criminal contempt. At some point, I would think judges would get the memo that the usual order of business no longer applies and that past actions should dictate that no deference should be given to the Administration as a good faith actor. People’s lives and due process hangs in the balance here. The very real and irreparable harm inflicted on plaintiffs should be the only consideration in my book. The AEA needs to be litigated. We can’t expect congress to do shit.