140. The Disturbing Myopia of Trump v. J.G.G.

In normal times, it might be possible to defend the Supreme Court's 5-4 ruling on Monday vacating a pair of temporary restraining orders in the Alien Enemy Act case. But these aren't normal times.

Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

As regular readers of this newsletter know, I tend to preach caution before folks read too much into what the Supreme Court does through its rulings on individual emergency applications—given that these rulings tend to be rushed, under-theorized, and, even when we actually get majority opinions, under-explained. Thus, I’ve always thought the real takeaways are to be had from the patterns of the Court’s decisions, not any one ruling.

But the more I read the Court’s Monday night ruling in Trump v. J.G.G., in which a 5-4 majority vacated a pair of temporary restraining orders entered by Chief Judge Boasberg in the Alien Enemy Act case, the more I think that this ruling really is a harbinger, and a profoundly alarming one, at that. To be clear, it’s not a sweeping win for the Trump administration; the Court did not suggest that what Trump is doing is legal, or, just as bad, that it might not be subject to judicial review. Indeed, the Court went out of its way to emphasize that individuals detained under the Act are entitled to due process, including meaningful judicial review.

But much like last Friday’s ruling in the Department of Education grants case, it’s still a ruling by a Court that seems willing to hide behind less-than-obvious legal artifices to make it harder for federal courts to actually restrain conduct by the current administration that everyone believes to be unlawful. As in that decision, here, a 5-4 majority has made it much harder for litigants to bring systemic challenges to what the Trump administration is doing. And especially in the broader context in which the Alien Enemy Act litigation, specifically, has unfolded, the justices in the majority got there by burying their heads in the sand.

I’ve already written in some detail about the Alien Enemy Act and the litigation before Chief Judge Boasberg, and will assume some familiarity with the background. As relevant here, Boasberg had entered two temporary restraining orders: one to bar the government from using the Alien Enemy Act to remove five named plaintiffs; and a second to prevent the government from using the Act against anyone in the same broad class as the plaintiffs while its validity was litigated. Critically, Boasberg predicated his relief on the Administrative Procedure Act (APA), not the federal habeas corpus statute (which would arguably have required those individuals in the United States to file in the district in which they’re confined—i.e., the Southern District of Texas).

The government asked the D.C. Circuit to stay (or vacate) the TROs, and a divided panel declined—with even Judge Henderson in the majority. But Monday night, a 5-4 majority of the Supreme Court, with Justice Barrett joining the Democratic appointees in dissent, agreed to do so. The short per curiam opinion effectively says two things: First, the Court held that individuals detained and facing removal under the Alien Enemy Act are, contra the Trump administration, absolutely entitled to due process before they are removed, including meaningful judicial review. That should’ve been obvious, but it’s nice having the Supreme Court unanimously reaffirm that point. Indeed, the Court expressly held that “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” This is actually good.

But second, the Court also held that such judicial review must come through habeas petitions—not through the APA. In other words, the five individual plaintiffs in J.G.G. need to bring their suit as a habeas petition—and, given where they’re detained, not in the D.C. federal district court. This holding was, suffice it to say, not exactly obvious. Indeed, there are some compelling arguments that, although habeas is a vehicle through which to challenge the government’s use of the Alien Enemy Act, it’s not (and never has been) the exclusive vehicle for doing so. But here we are.

There are, in my view, at least three major differences between litigating these cases under the APA and litigating them through habeas petitions, none of which the majority considered.

First, with respect to the 270+ individuals who have already been removed from the country (arguably in defiance of Chief Judge Boasberg’s rulings), there is at least some question as to whether habeas will even be available (and, if so, whether it will be effective). Indeed, this is the exact point on which the government is currently seeking emergency relief from the justices in the Abrego Garcia case, about which I wrote on Saturday.

If the Supreme Court comes back in the next few days and holds that folks like Abrego Garcia—who have already been removed and are in a Salvadoran prison—can use habeas to challenge their unlawful removals after the fact, that will help at least a little in those cases. And unlike with respect to the plaintiffs in J.G.G., there is good case law to the effect that venue for a habeas petition filed by someone outside the United States is proper in the D.C. district court (as in the Guantánamo cases). So lawyers could presumably try to file a habeas petition in D.C. on behalf of the individuals already removed to El Salvador—one that will depend upon how Abrego Garcia is resolved. But even if the Supreme Court sides with the lower courts there, and holds that federal courts can order the federal government to take steps to bring these folks back if their removals were unlawful, by vacating Boasberg’s TROs, the majority has made that review that much more difficult and potentially ineffective. That’s plenty alarming all by itself.

Second, and going forward, assuming that this Court is going to aggressively enforce the district-of-confinement rule for individuals still in the United States (which I wrote about in the context of the Khalil case), that means habeas petitions will have to be brought in the district in which those individual detainees are each detained. Justice Sotomayor’s dissent raises the specter of individuals being held all over the country, but I think it’s more likely most of these cases end up in the Southern District of Texas—and, thus, in the Fifth Circuit. (Much like the Department of Education ruling is going to likely mean that at least some of the funding cutoff cases end up in the Court of Federal Claims.)

I don’t think I’m speaking out of school when I suggest that there is no court in the country more likely to side with the Trump administration on everything from whether we’re under an “invasion” from Tren de Aragua to the amount of process to which alleged members of TdA are entitled than the New Orleans-based federal appeals court. Trading APA review for habeas, even if the remedies were otherwise commensurate, is trading the ideologically diverse (and national security-experienced) D.C. federal courts for the most right-leaning federal courts in the country. And the justices know that, too.

Third, and regardless of which court conducts the review, there are at least some reasons to fear that the scope of review in a habeas petition won’t be commensurate with what’s available under the APA. Among other things, there’s less case law supporting emergency relief in habeas cases. There are additional practical roadblocks to certifying a class of affected individuals in habeas cases (because each member of the class is presumably challenging their detention, versus seeking facial review of government action). Unlike under the APA, there’s no specter of “universal” relief in a habeas case. And, although Justice Kavanaugh’s concurrence plays up the use of habeas historically to prevent unlawful transfers to foreign countries before they happen, the very D.C. Circuit case that he cites in support, “Kiyemba II” (in which he was one of the judges), held that Guantánamo detainees could not use habeas to block their transfer to a foreign country based upon fear that they would be tortured there—so long as the federal government said they wouldn’t be. (I’ve written at some length about how wrong then-Judge Kavanaugh was on this point.)

Thus, there will be judicial review of the Trump administration’s use of the Alien Enemy Act, and that’s a good thing. But the review we end up with will be far more impoverished than what was already unfolding before Chief Judge Boasberg. That review may still suffice in individual cases, but what the Court’s ruling completely refuses to engage with (unlike Justice Sotomayor’s dissent, which tackles it head-on) is how much the Trump administration is attempting to use the Alien Enemy Act systemically—for mass, summary removals rather than case-by-case, individualized adjudications. By relying upon an unpersuasive procedural technicality to force more individualized litigation, the Court is effectively bringing a pea-shooter to a gunfight.

And that leads me to my last point: This isn’t any old case; it’s the case in which the government has come the closest to outright defiance of a court order (something Chief Judge Boasberg is still in the middle of adjudicating). And it’s the case that led President Trump to call for the impeachment of a sitting federal judge for doing nothing other than rule against him (a statement that led to a surprisingly quick and aggressive rebuttal from Chief Justice Roberts). Not two weeks later, here’s Roberts providing the decisive vote to hold that, in fact, the case shouldn’t have been before that judge (or that court) in the first place, without even a hint that any of the government’s (profoundly disturbing) behavior in this case warrants any reproach. As Justice Sotomayor concludes her dissent, “The Government’s conduct in this litigation poses an extraordinary threat to the rule of law. That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this.”

That the Court is not, in fact, “better than this” may come as little surprise to folks who have come to view everything this Court does with cynicism. For as harsh a critic of the Court as I’ve been, especially with respect to its behavior on emergency applications like these, it still surprises me. And it opens the door to the alarming possibility that the Court is not, in fact, ready to accept how profound a threat the Trump administration poses to the rule of law—not because the Court is upholding what the government is doing, but because a majority of the justices are willing to let the government win on procedural technicalities in contexts in which the real-world costs are increasingly severe. It’s not too late for the Court to reverse this pattern. But it’s getting late quickly.

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