We're back with another unexpectedly short and timely episode, focusing on last Friday's emergency docket decision in AARP v. Trump. We also spend a few minutes on a few other orders: the administration's partial victory in Noem v. National TPS Alliance and a puzzling mass recusal.
We're back with another unexpectedly short and timely episode, focusing on last Friday's emergency docket decision in AARP v. Trump. We also spend a few minutes on a few other orders: the administration's partial victory in Noem v. National TPS Alliance and a puzzling mass recusal.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, we're going to try to do something a little bit outside of our comfort zone, which is to record a fairly short episode. So, let's see if we succeed in doing so.
Will: About something that happened fairly recently.
Dan: Yeah. So, we last recorded on Thursday. We're now recording on Monday. The way this show works, we release an episode, and then within hours, something happens that makes what we said less timely. So that, of course, happened again. We released on Friday, and then shortly thereafter, the Court issued a per curiam in A.A.R.P. v. Trump, which is a case that had been pending. The Court had already issued a kind of temporary order in that case. So, we're going to talk about that.
Before we get to that, any other tidbits to talk about? There was this weird thing on the orders list today that I spent a couple of minutes trying to puzzle over. Did you see this? Baker v. Coates, and the lead defendant, I guess, is Ta-Nehisi Coates, among others. And this is the orders list, says, “Because the Court lacks a quorum, since the qualified Justices are of the opinion that the case cannot be heard and determined at the next term of Court, the judgment is affirmed under 28 U.S.C. § 2109, which provides that under these circumstances, the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court.” And then, Justices Alito, Sotomayor, Gorsuch, Barrett, and Jackson took no part. So, I guess they were the Justices who were recused from the case. I couldn't figure out why those Justices were out of this case.
Will: Yeah. So, it's weird. I've seen these kinds of-- that statute before because usually it happens when it's like a prisoner or another pro se litigant sues all the Justices of the Supreme Court for being part of some conspiracy about their rights. And so, the Court's like, “Well, sorry, we're all defendants here, so I guess we're not hearing the case.” I mean, they do have the rule of necessity, so they could hear the case if they really wanted to. So, I pulled up the petition, which does not list any of the Justices as parties. It does list Ta-Nehisi Coates, The Atlantic, Laurene Jobs, the Apollo Theater, Warner Brothers, Disney, Oprah Winfrey, MGM Studios, Roxane Gay. So, I don't know if somehow, they're all friends with Oprah Winfrey. It could be there was a more expansive list of people sued below or something. I'm not sure.
Dan: Yeah, and the claim seems to be that Ta-Nehisi Coates plagiarized this guy's life in writing a book. Like, he stole facts from this guy's life. I don't know if your life can be copyrighted.
Will: Well, the question presented is whether the Court of Appeals departed from this Court's decision that an author's arrangement of words is protectable, but we'll never know.
Dan: Okay, that was a weird one, but perhaps not the most consequential thing the Court has done recently or will do this term. What else we got?
Will: Well, we also got one other thing as an order today, which I don't think we're going to say much about, but that might be more significant, Noem v. National TPS Alliance. That's Kristi Noem, the Secretary of Homeland Security. And this was a case about the revocation of Temporary Protected Status for Venezuelans, which the Biden administration had issued, which had then been enjoined universally by the district court in California and had been pending for a little while. And the Court today issued an order, the application for stay.
Dan: Sorry, the withdrawal had been enjoined?
Will: The withdrawal had been enjoined, yes.
Dan: But then, the Ninth Circuit said that was okay?
Will: Yes. The district court and the Ninth Circuit were trying to maintain the status quo, but the Secretary of Homeland Security wants to change the status quo and wants the US Supreme Court to step in and say she is allowed to change the status quo. And they did that. They said that the district court's order against Noem is stayed pending the disposition of the appeal in the Ninth Circuit and a petition for certiorari, the standard language. And then, that's maybe not that interesting.
Then, there's a second paragraph though, which is a little interesting. “This order is without prejudice to any challenge to Secretary Noem's February 3rd, 2025 vacatur notice insofar as it purports to invalidate EADs, Forms I-797, Notices of Action, and Forms I-94 issued with October 2, 2026, expiration dates. See 8 U.S.C. § 1254a(d)(3).” So, if you pull up a(d)(3), the statute says about sort of documents under protective status, it has a special rule for effective dates that says if the Attorney General terminates the designation of a foreign state under this section, the termination shall only apply to documentation and authorization issued after the effective date of the publication of notice of determination.
So, I think there is a kind of explicit statutory carve-out to deal with what happens if you've been given various kinds of forms and authorizations with a particular term they try to revoke that from you, which I think maybe the Secretary was trying to get around. Otherwise, there's a pretty broad judicial review provision in the statute. So, it's not terribly surprising that the Court might think this is going to be in the category of things that even the Trump administration's allowed to do. But it does set the stage for immigration and judicial review, which I think is the theme of today's episode.
Dan: Yeah. And interestingly, the final sentence as well says Justice Jackson would deny the application, suggesting that the other two liberal Justices either were okay with granting the application or didn't care enough about it to note that they would have denied it.
Will: Yeah.
Dan: What do you make of that?
Will: Well, it's one of those two things. That's the magic of the shadow docket. I think Justice Jackson has already stated this position in several of the Trump shadow docket cases [chuckles] that basically she's not interested in giving relief to the Trump administration on the shadow docket, or she has a sort of view about if ultimately, she doesn't like their position, then she's just not interested in piercing through to it. So, maybe one way to think about it is she might have just already staked out a view about almost all these cases. So, it's easy for her to continue to note her prior view. And even if there were Justices who might be opening up to other cases, they may not want to put it down as a perpetual dissent.
Dan: That they agree on the merits but just don't want to note it?
Will: Yeah, right. And look, they might have the view that they would J3 or J4 on this. If there were other Justices interested in denying the application, they might also be interested in denying the application, but in the absence of five, they're happy to go along.
Dan: Okay, well-- and I guess this applies to a really large number of people, like 350,000 Venezuelans in the United States.
Will: Yeah. This is a big deal.
Dan: Yeah. And so, what do we think happens next?
Will: Well, now this is going to go up to the Ninth Circuit.
Dan: In the meantime, these folks can be removed-
Will: Yes.
Dan: -or at least deportation proceedings can begin?
Will: Well, right, yeah. In the meantime, they no longer have this special protective status. So, whether they're removable depends on all the other legal authorities. I guess it also goes in a little bit to the other case we're going to talk about today because remember, the administration's position is that we are at war with Venezuela because Venezuela has invaded us with alien enemies. So, if the administration got its way-- I mean, they'd say you have to be a member of the Tren de Aragua gang to be an alien enemy but they don't have to actually prove that or anything. So anyway, if the Alien Enemies Act were in force, then removals could begin a lot more hastily and with a lot less process but now that it's more clear the Alien Enemies Act is going to be on ice for a little bit, you'd have to use other immigration authorities, although there's still going to be plenty of that.
Dan: Yeah. Okay. From the mailbag, we talked last time about are there ever five-Justice concurrences? Will Frankel, a student at Stanford Law School, had wrote in. He did a very clever series of Westlaw searches that he thinks there's not one five-Justice concurrence going back to at least 1981, at least looking at the way these things are normally designated in the text of the opinions and won't go into the details, but I thought that was clever. So, if anyone has a counterexample, please let us know.
Will: Oh, can I raise my hand now?
Dan: Yeah.
Will: So I actually found one while we were recording last episode, but we had to cut it short, so I didn't tell you.
Dan: Okay, what do you got?
Will: Rosenberg v. United States, 1953.
Dan: Oh, okay. And this is going back 70 years. This is the Rosenbergs.
Will: The execution of the Rosenbergs.
Dan: Yeah.
Will: Features a concurring opinion by Justice Jackson, joined by Chief Justice, Justice Reed, Justice Burton, Justice Clark, and Justice Minton, and a concurring opinion by Justice Clark, joined by the Chief Justice, Justice Reed, Justice Jackson, Justice Burton, and Justice Minton. So, it's got two six-plus concurring opinions in it.
Dan: Wow. Why didn't you say that while we were recording?
Will: Because I had to go teach class and I know if I brought it up--
Dan: You just didn't want to get sucked down a rabbit hole.
Will: Well, and then I thought it would be fun to give one of our listeners a chance to find it but--
Dan: Nobody found it.
Will: Nobody found it. So, I would like to [unintelligible [00:09:52].
Dan: Okay.
Will: Mention on the show.
Dan: Recognition on the show, which you get plenty of as is.
Will: Also, I didn't actually find it. ChatGPT found it, so.
Dan: Oh, I thought we tried that and it didn't work.
Will: You tried it.
Dan: Yeah. So, you crafted a better--
Will: My ChatGPT is nicer than your ChatGPT.
Dan: You're a better prompt engineer than I am?
Will: Maybe it's just because I have Pro. Maybe they give me the better--
Dan: You pay for the full-on Pro subscription, right?
Will: I realize I play the Luddite on this show, but I do try to keep up.
Dan: I don't know why you need to spend that much money though, because you can still get a lot of deep research, even with the intermediate subscription. And you hadn't even figured out how to use the image generator until I told you, right?
Will: The image generator, that's-- you do funny stuff, Dan. I'm just using it for--
Dan: You're just serious. You're like Mr. Serious all the time.
Will: I generate images now, for every blog post I generate images and they drive me crazy because the image will be slightly wrong. And then you'll ask it, like, “Can you just fix this one thing?” and then like 20 things in the image will change. “No, no. Change just one thing.” It'll be like, “Oh, I'm sorry. I'll do it again.” And then again, it changes everything.
Dan: Yeah, no, that's a thing about whenever you ask it to do something and then say, “Okay, could you change one thing?” Then, it introduces many errors. But that makes them kind of amusing, right?
Will: It does. Well, the image for my link roundup post on the blog today, it decided to offer me like a boat because that was related to Loper Bright. And then, a large, large obelisk, which is somehow related to a codex, which is some sort of legal codification. Anyway, I went with it. [laughs] But--
Dan: Okay. I want to see this one. I will take a look. How many deep research memos are you having to do per month?
Will: I'm capped at 100.
Dan: Are you actually doing close to that?
Will: I try to do multiple per day.
Dan: About so many different things?
Will: Yeah, whatever. Let's see. This might have been a deep research. I asked some stuff about USAID. I asked it to collect all the judicial opinions by various judges. I asked it to collect every tribute written to Robert Bork, how he died.
Dan: Okay, all right. Maybe you're using this effectively.
Will: I give it a few-- Anything I want to know-- I mean, if it's something I really want to know, I'll look into it or I'll have an RA look into it. But if it's at the first level, I want to know what's out there.
Dan: Okay. All right. Well, I guess we should just get to the point of our quick episode.
Will: What's the point, Dan?
Dan: Well, I mean, the point is we're going to talk about A.A.R.P. v. Trump, the confusingly named case. I thought this case had gotten recaptioned below. I guess it hasn't gotten recaptioned in the Supreme Court.
Will: Yeah, it got recaptioned in the district court, but nobody asked the Supreme Court to recaption it. Maybe they didn't know that the court was going to re-decide it. So, to recap, this was the Good Friday case, where at 1 in the morning on Good Friday, the court decided to suspend the President's immigration powers for a month until we figured out what was going on.
Dan: Complete and total shutdown of immigration powers. Not quite.
Will: "The government is directed not to remove any member of the putative class of detainees in the United States until further order of this court. Justice Thomas and Justice Alito's statement to follow," right.
Dan: And we did get that statement like 24 hours later.
Will: Right. Then, we got the Alito statement 24 hours later on April 19th. This is all before the SG's response. Then, we got the SG's response on that same time, April 19th. Then on April 21st, we got the reply by A.A.R.P. Then nothing happened for several weeks.
Dan: Quite some time, yeah. And so, that initial order, which I don't-- would you characterize that as an administrative stay? Administrative order?
Will: In retrospect, I would characterize it as an administrative stay. [chuckles]
Dan: But not necessarily at the time.
Will: Well, if you look at it on its face, it says there's an application pending. It's currently pending before the Fifth Circuit. When the Fifth Circuit acts, the SG is invited to file a response and in the meantime, don't remove anybody. So, yeah, that looks like a administrative stay. It's just saying here's the schedule, here's what we expect. And they may not remove anybody.
Dan: But one that ended up lasting for quite some time.
Will: Yeah, that's the joke is the SG responded, the Fifth Circuit had in fact maybe already ruled by the time that order came out and they didn't know it. If not, it was like within an hour, the timestamps were close. But within 24 hours, they had everything in hand and then they did nothing for weeks, which I still think was funny. And among other things, the SG in its reply pointed out, at a minimum, could you clarify that we are allowed to remove the aliens under other statutes? Even if we take the Alien Enemies Act off the table, what about the other statutes? And the ACLU said, “Yeah, we can't really come up with any reason why you can't do that.” But the court didn't even clarify, which left it even more of a mystery, like did they mean to do that or not?
Then earlier this month, the district court finally decided that a class action would be inappropriate in this case and denied class action status. At which point, A.A.R.P. filed a supplemental letter saying, “By the way, the district court denied class action status. We disagree. We encourage you to grant cert.” Trump responded again. There was a little bit more briefing. And then finally, on Friday, the day after the universal injunction arguments, the court ruled again.
Dan: Okay. And this ruling, I guess, largely doesn't change the status quo other than making clear that the government can remove these named challengers and putative class under other immigration authorities. But it continues saying the government cannot remove them under the Alien Enemies Act.
Will: Yeah, it does several things. So, we have now moved from an administrative stay or whatever that was, an administrative something or other, all writs, to the application for an injunction pending appeal proceedings is granted. We have a a sum rev: “Applicants' suggested that this court treat the application as a petition for writ of certiorari. Doing so, the petition is granted, the judgment of the Fifth Circuit is vacated and the case is remanded to the Fifth Circuit.” Then, we've got orders to the Fifth Circuit. The Fifth Circuit should address one, the normal preliminary injunction factors, including the likelihood of success on the merits including the likelihood of success on the merits as to the named plaintiffs' underlying habeas claims that the AEA does not authorize their removal. And two, the issue of what notice is due to the putative class's due process claims against summary removal. The government is enjoined from removing the named plaintiffs or plaintive class members in this action under the AEA until the writ of certiorari started, etc. So, we have like a convert the administrative stay to an injunction, narrow the injunction to only apply to the AEA, not all authorities, and also--
Dan: Send it back down.
Will: Send it back down to the Fifth Circuit with a kind of detailed set of marching orders about what we want to know going forward. It's a lot.
Dan: Yeah, there's a lot going on. I don't really know where to start here. I mean, the big picture, I found this a pretty striking opinion.
Will: Good. Yeah. So, this has been reported as a striking opinion and the court has lost patience with Trump. Is that your reaction?
Dan: Definitely to some degree. I mean, this is seven Justices who basically seem to be suggesting to us that they don't really-- they don't say this in that many words, but they don't really trust the administration to proceed in good faith. They think that the administration has not given these detainees sufficient notice of the removal. And it was justified to move so expeditiously and kind of jump the line with respect to the district court with the earlier order because there's reason to suspect the government was just going to rush these folks out of the country and then take the position that, “Well, they're out of the country, nothing we can do.”
So, the court is, I think, looking over to the Abrego Garcia opinion, and the court cites that-- The Abrego Garcia case cites that explicitly on page four and says, “Well, you're taking that position that once people are out of the country, there's nothing you can do. And so, we are not going to let you do that.”
Will: Yeah. I want to talk about the due process claim and the class action thing, but I think in some ways the most striking part of this opinion is the facts section. And it's not because the facts section is so blistering. It's just because the facts section recites all the facts in this case. And both that includes-- often the court, especially in cases involving presidential power and especially in cases involving President Trump, often the court does not recite all the facts. Often, they have a kind of, the whole idea is we sanitize the facts and pretend that Trump is a normal president, and there's less of that going on, and there were kind of multiple competing versions of the facts. So, the court emphasizes why they felt the need to act at midnight, act so early and they emphasized that the government had not guaranteed that the class members wouldn't be removed.
I think this reminds me a little bit of your post about the court considering evidence not in the record and so on. So, this is in the record, but on page 2, they say, "Evidence now in the record, although not all before us on April 18th, suggests that the government had, in fact, taken steps in the afternoon of April 18th toward removing detainees under the AEA, including transporting them from their detention facility to an airport and later returning them to the facility. Had the detainees been removed from the United States to the custody of a foreign sovereign on April 19th, the government may have argued, as it has previously argued, that no US Court had jurisdiction to order relief. See Application to Vacate Injunction in Abrego Garcia." That is Supreme Court for, “You were busing these people to the airport and about to remove them from our jurisdiction.”
Dan: We are not going to let you do that.
Will: Stop fucking with us.
Dan: Oh, we just lost our family-safe rating for this episode.
Will: Sorry.
Dan: Yeah, that's pretty big. I think, and especially when you think about this is seven Justices, we've got Alito and Thomas in dissent, but--
Will: Well, as always, we don't know exactly how many Justices it is.
Dan: Well, fair. I mean, but seven Justices who either agreed with this or did not think they should publicly-- did not want to publicly disagree with it, right?
Will: Yes, right. So, I do think that description does suggest the court is aware of what's going on and they're willing to talk about what's going on, which is a little unusual.
Dan: Yeah. And again, does not treat the government as if it's being totally on the up and up. Basically, sort of said when this application first came in, they said, “We understood the government to assert the right to remove the detainees as soon as midnight Central Time on April 19th,” explaining why the court moved so expeditiously at the time and sort of like nitpicking the exact representations the government had made and sort of reading them and understanding them to be fairly legalistic and the government to be preserving as much of its power as it could. So, I don't know.
I think it does certainly suggest that the court is not going to give the government a lot of wiggle room. It's going to say, “Look, if you're not going to promise that you're going to do X and Y, we are going to assume that you are maybe looking for wiggle room and we are not going to give it to you.”
Will: So, how much do you understand this to still be the holding out the carrot as well as the stick? So, at argument in universal injunction cases, of course, we saw a lot of the court saying, "Oh, will you promise you respect this precedent? Will you promise you respect this?" And sometimes, the SG made promises and sometimes he didn’t. So, you could also read this as saying, "Look, if you want to come back and start telling us, 'Look, we have agreed not to remove anybody for 30 days while you figure this out, and we have agreed that if we do remove them, you can bring them back,' we can go back to regular business."
Dan: Yeah, although at this point, I mean--
Will: Yeah, it is off the table.
Dan: What would the function of that be? I mean, the court has said you can't remove folks under the AEA in this timeframe. And if the government comes back and says, "Now, we promise, please lift the injunction," [laughter] that would be a little fishy, right?
Will: I guess.
Dan: “We are not going to do the thing you told us not to do, but would you mind lifting the injunction?” That would be strange.
Will: Right, yeah. And I guess again, they did get lifted as to the non-AEA authorities, which might be a version of that.
Dan: Yeah, to the extent that was already in place because there is this final line of the opinion. “The government may remove the named plaintiffs or putative class members under other lawful authorities."
Will: Yeah, so I do have questions about the law, but one more sort of overall "vibes" question. I guess here is another take, does this opinion make Judge Boasberg look better and better? Because remember, this all started when Judge Boasberg tried to do the same thing.
Dan: Yeah, turn the plane around, right?
Will: Right. Turn the plane around. But also, more importantly, stop flying new planes. “Let us just stop this whole thing and figure out what is going on.”
Dan: Yeah, and to sort of issue potential class-wide relief, right?
Will: Right. And the court gave that whole thing a hard stop and said, "No, no, you can't do a nationwide class action about this under the APA. You have got to do habeas cases." But now, it feels like we are kind of back where we started. [crosstalk]
Dan: Yeah, at least sort of closer. I mean, this may be bleeding into the actual law point. I mean, the court is not resolving whether a habeas action permits a kind of class action or class action-like device. But it is sure as heck not ruling it out and suggesting that you can get at least interim relief for a putative class, which if this was just completely out of bounds, you would think that they would say you can't get even that.
Will: Well, okay, good. Yeah, my first merits question was going to be, of course, this has been an issue since the day after the universal injunction cases.
Dan: Yeah. Which touched a lot on those questions about potential class actions, is that a way to get this other to resolve some of these same considerations?
Will: Right. And so, in the arguments, we saw a lot of the Justices say, "Oh, universal injunctions, those are bad. But of course, class actions, those are okay.” And now, we see class actions include interim relief to a putative class that the district court has held is not a class under a statute that may or may not allow classes. And the court gives them all interim relief with no--
Dan: No class certification like in the court.
Will: And not even saying, "We think the statute allows classes." Not even saying, "We think the district court was wrong not to allow the class." Right?
Dan: Yeah. Which does suggest that maybe the court believes, or at least at some level assumes that, "Look, maybe if even these universal injunction things are not great, there has to be at some level, some ability to accomplish basically the same thing." There has to be some power that courts have to say, "Hey, government, don’t do this thing at all, at least while we figure it out."
Will: Yeah, but what do we make of that? Again, does that suggest buyer's remorse on the universal injunction thing?
Dan: Well, they haven’t-- I mean, they haven’t bought anything yet. Right?
Will: Right. Well, okay. So, do we think they are not going to buy it?
Dan: Well, maybe they will say, “A true universal injunction, not okay, but of course you can get interim relief when there is a putative class,” blah, blah, blah. And that gets us to sort of the same place, not quite, but--
Will: Right. And Justice Gorsuch actually had some questions, some very specific questions, about the use of the All Writs Act to preserve jurisdiction over a not-yet-certified class on argument on Thursday, that we now, of course, understand were questions about this opinion [laughs] that he knew there about the issue. But as Justice Alito would say, "Well then, what is the point? What is the point of saying no universal injunctions, instead you have to call it a not-yet-existing class that may never exist, and then you can do it?" Does that accomplish anything?
Dan: Yeah, I mean, possibly. I have not gamed out all the implications of that. It may have implications for the kinds of cases these can be brought in. It may have implications for the timeline.
Will: Yeah.
Dan: Which these cases, the length of time that these injunctions can persist, I would love for someone, kind of a deep safe harbor person, to really game that out for us. I don’t know if it has implications for cases brought by states which are not really going to be class actions as such.
Will: Yeah, I guess states can't bring class actions, I think.
Dan: Yeah, I mean, it wouldn’t even make sense. They are bringing a class action on behalf of all states or something.
Will: Well, if the blue states brought a class action on behalf of all the other states [chuckles]. So, I guess a lot does turn on how putative the class is going to have to be going forward. Maybe in this case the court really does think class treatment is probably fine and that Judge Hendrix's opinion.
Dan: Even though the habeas statute might not allow it.
Will: Well, I think most courts of appeals have said it does. And so maybe they secretly think they are going to say that. I do not know.
Dan: Which in and of itself would be kind of surprising, right?
Will: Surprising that it does or surprising that it doesn’t?
Dan: Surprising that the court says it does, if the court is going to say that it does.
Will: Just because the court does not like habeas or class actions--
Dan: Yeah.
[laughter]
Will: Too bad taste.
Dan: Somehow, when you put them together, they are great.
Will: So, on the one hand, I think it would be surprising, and I think there are historical arguments that this is not sort of how habeas worked. On the other hand, the more the court shunts things to habeas, both because the statutes require it to and because the court then does so, then the more it is less surprising that having forced these things into habeas, they have got to kind of let it do the work that it would have done otherwise.
Dan: Although if you read the JGG opinion, sort of like taking the cases away from Boasberg and moving them to habeas, you would not necessarily have come away from it thinking like, "Oh, yeah, the court thinks class actions are fine. It is just a question of where you start the class action."
Will: Yeah, you know what this also reminds me of is the work by the Keller Postman firm.
Dan: Mass arbitration?
Will: Yeah. We have all these employers who made all these arbitration agreements with their employees because they did not really want their employees to bring claims at all and figured arbitration is the way to make them go away. And then one day, Ashley Keller and his friends decided to call their bluff.
Dan: And Warren Postman, who is in the--
Will: Warren Postman.
Dan: Yeah, let us give him credit.
Will: They are both great. They both clerked with me in my term and bring hundreds of thousands, millions of arbitration claims. And then, I think my understanding is several of the employers [laughs] have now said, "Actually, you know what? Class actions turned out to be a pretty good way of dealing with large numbers of claims." So, you could imagine the court was thinking, "Go bring habeas claims." And then, the ACLU starts bringing habeas claims in every district in the country on behalf of every detainee they can get a hold of. And you can imagine at some point thinking like, "Well, when we said that, we did not think we were going to bring all the habeas claims.
[laughter]
Will: Having brought all the habeas claims, we kind of need to deal with them together."
Dan: Yeah. All right, who wrote this, by the way?
Will: This per curiam?
Dan: Yeah.
Will: Well--
Dan: I mean, I have heard some people saying, "No, this one doesn’t feel like the Chief."
Will: Right. I mean, the Chief likes them all, right?
Dan: I mean, that is sort of my baseline assumption on these.
Will: Yeah. What doesn’t feel about the Chief like it?
Dan: Well, I did not say that. I just said people said that. I saw a friend of the show and podcaster herself, Sarah Isgur. Sarah is also now sort of running SCOTUSblog as part of her work for the Dispatch. And she thought maybe it does not have a "Chief-y" feel. Maybe there is a little bit more laden kind of snark here. I wasn’t sure. What do you think?
Will: I don’t know. So, I could see-- Maybe I had heard a theory it was Gorsuch, both given the subject matter and given the way it intersected with his comments and argument. But I will say, I find the kind of the dry but devastating recitation of the facts, that does feel like the Chief to me. So, I do not know. I am not a Chief whisperer, but I do not really know who wrote it.
Dan: Okay.
Will: What about the due process holding?
Dan: So, the court previously said there is a right to get notice and a hearing if the government is trying to take people out of the country using this authority. And they didn’t tell us exactly what that meant previously. They did not say like, "And you get 17 and a half days’ notice."
Will: They did say, “You get enough time to be able to challenge it.”
Dan: Yes, but they didn’t tell us exactly what that looked like. And it seems like the government interpreted that as like, "We will hand you a piece of paper like the day before we take you out of the country."
Will: Yeah.
Dan: At least that seemed to be how they were interpreting it.
Will: Right. The government took the position that giving you a written notice of 24 hours was enough. Now, I think in practice then, that it often wasn’t 24 hours. And the written notices were not necessarily in Spanish and sometimes maybe said you didn’t have a right to [chuckles] challenge it because that is the AG's position. And so, now the court says, page 4, "Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal surely does not pass muster."
Dan: Yeah, "surely."
Will: That’s interesting. That is not obvious to me. I mean, I don’t disagree.
Dan: It seems clear enough to me. You need time to go maybe find a lawyer, talk to somebody who can find you a lawyer.
Will: Right. Well, the role of the lawyers is part of what I find really interesting here is because I think with 24 hours’ notice, if the detainees were allowed to just say to the ACLU, "Hey, get me habeas now," the ACLU probably could do it in 24 hours-- could probably get the initial filing in 24 hours.
Dan: Yeah, maybe. I mean, there’s a lot of these folks though, that if there is no class treatment, they would have to file a bunch of separate ones, right?
Will: Yeah, but I think they can copy and paste a certain amount. I mean, more time would be better. But if you were willing to put them in touch with lawyers and let them talk to them and give them the relevant factual information, and it was the ACLU who has been doing a lot of these, it is not crazy to imagine they could turn them around pretty quickly.
Dan: But you would then need a court to provide some interim relief.
Will: Maybe for the 24 hour--?
Dan: Right. It can't be just enough time for the lawyer to file the petition and then they remove you five minutes later. That cannot be enough.
Will: Right. Now, the petition would have to then ask for an emergency stay. But also, my understanding is they are not letting these folks talk to lawyers, or at least the ACLU represents some of its filings, that part of the problem is they can’t meet with anybody at a detention facility unless they have their name and A number. And the government will not give them their names and A numbers because they are not clients. And so, there is this back and forth where the district court said, "Look, it has been several weeks now. I assume everybody who wanted to file has filed by now." And ACLU was like, "We still do not know who these people are." So, I assume that is one of the factors.
But the court says, "It is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose." So, I assume the Fifth Circuit kind of has to figure out some mix of time, lawyering, what you have to say to them, etc.
Dan: Yeah, but interestingly, Justice Kavanaugh, although concurring in the order, not just fully concurring, says in a separate opinion that he would not have kicked this case back down to the Fifth Circuit. He would just say, "Let us just grant it and order prompt briefing, hold oral arguments soon thereafter and resolve the legal issues."
Will: And what legal issues do you think?
Dan: So, one, whether the Alien Enemies Act authorizes removal, and if so, what notice is due before removal? So, both the due process question and the underlying legal question about whether the government can use the AEA in this way.
Will: Yeah, right. Because I find remarkable-- I mean, the government probably is not giving them enough notice, but we still have looming in the background, the question of is it true that Venezuela has invaded the United States?
Dan: Yeah, it might be helpful to just get an answer to that, right?
Will: Yeah. Well, I mean, you would think it would be helpful, and several district courts have said it is not true. I take it the problem is that the court's previous precedent on this suggests very broad deference to the executive branch on questions like that. Maybe not plenary, but very broad. And so obviously, it is awkward for the court to think like, "Well, we are obviously not at war with Venezuela, but are we allowed to say that?" And to balance the sort of judicial deference versus the obvious falsehood is something that they would prefer to stay away from, I guess, or at least they don’t want to rush into.
Dan: Yeah, but why not? I found this persuasive that do we really need the Fifth Circuit--? Because don’t you think it is pretty likely that this case goes down to the Fifth Circuit and then the court is going to have to then hear it again? It seems unlikely that it is just going to go die in the Fifth Circuit.
Will: Who is the Fifth Circuit panel? Do we know?
Dan: I don’t remember. It doesn’t really matter. The Fifth Circuit is going to be much--
Will: Ah, it matters. The Fifth Circuit is not all--
Dan: Yeah, I just think that most configurations of Fifth Circuit panels are going to be to the right of where the court seems to be. Right?
Will: Yeah, but there is to the right and there is to the far right. But okay, so I did feel like the remand was unusually pointed maybe to try to stop some of the more clever and more right-wing Fifth Circuit judges from finding ways to make the case go away. Yeah, I guess I do think this might come back, although I suppose if you take this opinion as a whole, maybe the message it's trying to send, which is the message that people like Ed Whelan have just been sounding explicitly, is like, "Why are you using this statute?" The statute is not…using the Alien Enemies Act, it is going to prove to be more difficult than using regular immigration law, which allows you to conduct mass deportations with relatively minimal due process. And once the court has made clear that the Alien Enemies Act is not like a magic "get out of due process free" card, and in some ways it is going to require a more extensive process--
Dan: Yeah. Maybe they will just give up on that.
Will: I think that’s what they are hoping. I think they are hoping that the administration will just give up on using the Alien Enemies Act and use, again, regular tyrannical executive power like every other president. I don’t know that they are going to get their wish.
Dan: Yeah. How much does this reflect the court's desire to, Jack Goldsmith has used the term "temporize." But maybe if you are the court and you are not a fan of what the administration is doing, your friend is delay. Each day, the administration loses a little bit of political capital. Maybe you send it back down to the Fifth Circuit, Fifth Circuit takes a little while, maybe it comes back up, and then you grant cert and schedule it to be argued next term. I mean, this kind of drags this out forever and ever. That might be the best strategy, even if you're someone like Justice Jackson who's not going to be a fan of what the government is doing, maybe to the extent you can stop the government from doing it in the short term, and then you can just delay the decision about whether the government can do it, maybe that's the best outcome.
Will: That's not the best outcome. The best outcome would be saying this is unlawful, right?
Dan: But why not-- I mean, it's better to the extent you can put that off, maybe it's better to say it's unlawful in a year than to say it's unlawful right now.
Will: Why would that be better?
Dan: Because, as I said, the administration has less and less political capital as we get closer to the midterm elections, as we get further past the first hundred days, etc. So, maybe there's less pushback on that decision when it comes in a year than if it comes today, less successful pushback.
Will: Right. You think they might successfully ignore the order now, and they're not going to successfully ignore the order then. On the other hand, you might think it's important for the administration to be getting some stronger signals than it is that this is not working. So, here are two models of the Trump administration. One is the Trump administration really wants to defy this order, and they'll do it if they can get away with it. And so, you want to wait until they can't get away with it. Another model is Donald Trump has not made up his mind about Stephen Miller. He's given him a huge amount of running room. But Stephen Miller wants to defy this order. And Donald Trump, when asked questions about it, he's not ruling that out, but he's not promising it either. And so, a different model would be now is the time to say to Donald Trump, some version of get rid of Stephen Miller and we'll let you do this in a more normal way. More John Sauer, less Stephen Miller.
Dan: Yeah.
Will: And then, you might want that message sooner.
Dan: Yeah, that's fair.
Will: You can't quite put it that way.
Dan: So clearly, the court has determined not to give that message sooner. Although I mean, it could come pretty quickly depending-- I would imagine the Fifth Circuit is going to rule pretty quickly, right?
Will: Yeah. Well, look, I think the message is here in code. The fact the court is doing this, the citations to Abrego Garcia, whatever they're going to say about universal injunctions and Sauer, I think the next month and a half are going to contain some more stuff about that. I mean, it's not going to be written in a Truth Social post, but I do think there are some messages about that. And we saw a version of this story, of course, in the first Trump administration. The famous three iterations of the travel ban and various other things were trying to send a message, I think, to the president that “If you listen to your OLC and your lawyers and let them tell you how to do this stuff, we'll let you get away with a lot of it. And when you don't, as in the census case and maybe the DACA rescission, then we won't.” I don't know whether that's a good thing or a bad thing, but it's a thing.
Dan: All right. And we have another dissent from Justice Alito, who's now had to basically dissent in this case twice.
Will: Yeah.
Dan: Still seems kind of unhappy.
Will: Right. So, he has a kind of technical jurisdictional argument that this case isn't really in the Court of Appeals, and therefore the court doesn't really have appellate jurisdiction over it.
Dan: Yeah.
Will: Which I think doesn't work-
Dan: Because the Court of Appeals actually did ultimately rule?
Will: Yeah. Well, the case was in the Court of Appeals. And what the court has done here is summarily reverse the thing the Fifth Circuit did.
Dan: Which is like a thing you can do with a petition for cert. And even if the Court of Appeals hasn't ruled, you can do cert before judgment, right?
Will: Right. It's true the case was not in the Court of Appeals for very long because the whole thing happened very fast, but yeah.
Dan: Is the idea that it was never properly in the Court of Appeals before? I mean, certainly he seems to think that the petitioners acted inappropriately by going and filing the notice of appeal without giving the district court sufficient time to react. There's a debate on that between the majority and Justice Alito about whether there really was sufficient time. I thought the majority gets the better of that argument by basically saying, “Look, the district court is dragging this out for another 24 hours. In that time, a lot of people could potentially get removed,” right?
Will: Yes, I think that's right. I think the Fifth Circuit originally concluded it lacked jurisdiction, and that's part of what the court is reversing. So, I think Justice Alito thinks something like, for the court to have jurisdiction to leap into a case this quickly with this little action from the lower court, it would only have jurisdiction to do that in extraordinary circumstances. And here, the lower courts acted reasonably, and therefore there are not extraordinary circumstances.
Dan: That doesn't really make sense to me that there's a reasonableness standard for whether there's jurisdiction.
Will: Well, a little bit in that you need the district court to have denied the motion for it to be appealable to the Court of Appeals. And I think the district court is alleged to have constructively denied the motion here, not actually denied the motion, because the district court said, “File your motion in writing, and I'll give the government 24 hours.” Now, that is denying the motion to act now before it's too late. But you need a little bit of unreasonable behavior by the district court.
Dan: Yeah.
Will: Although not to cast aspersions on Judge Hendrix, who I think is one of the most reasonable judges in the Northern District of Texas, but you need a little bit of that kind of judgment.
Dan: That might be faint praise.
Will: I don't mean that as faint praise. Yeah, but I do feel like it's still like both the majority and Justice Alito have different views about how reasonable it was. And this just is more like a merits question than a real jurisdictional question.
Dan: He disagrees with the kind of factual premises here in terms of the information that was provided to the district court to kind of make it think that it needed to act so quickly.
Will: Yeah.
Dan: And again, just obviously, we don't need to get into the nitty gritty on that. But the court clearly was more persuaded that there was a meaningful danger that the government was rushing a bunch of folks out of the country. And Justice Alito is sort of saying, “Oh, this was double hearsay. We don't have anything super clear.”
Will: Yeah.
Dan: And again, I find more persuasive with the way the court seems to view the evidence and certainly the court's apparent view that even if it's not certain what was going to happen, we need to do this to preserve their ability to figure this out later.
Will: Yeah, I like that a lot, because that is the way the emergency docket was originally supposed to work. Like, part of the focus on when you needed these emergency orders was especially in cases about preserving the court's jurisdiction over an important federal issue. And the court uses the phrase "preserve jurisdiction" 17 million times in their opinion, which I think is a nice throwback to the original understanding of the All Writs Act.
Dan: Yeah.
Will: I mean, there's a funny thing about this opinion taken as a whole, is this is why you can't have emergency docket reform. I feel like for the first month, people were upset that Trump was taking all these cases to the Supreme Court, and they were quickly stepping in to stop these various district orders, like Judge Boasberg's. But it turns out even people who think that about the president really need the emergency docket when suddenly they're about to deport a bunch of people on Good Friday. You could be in an equilibrium where we just understand the court doesn't act that fast, and these things happen. But once the court is open for business, it's open for business from both sides.
Dan: Yeah. And if the court just categorically doesn't act that fast, then I guess the government just gets to moot a lot of these cases by getting people out of the country.
Will: Right. I mean, or we have to reverse Abrego Garcia, another case that’s been pending for a long time. They could go that route, but I'm not sure we're ever going to find out the answer to that question.
Dan: Yeah. Okay. In our interest of actually having a short episode, are there more things to say about this?
Will: I don't think so. I guess the last question which we've already hit on is just like the presumption of regularity. So, does this case really just come down to whether the presumption of regularity applies to the second Trump presidency? Is that kind of the big, big question here?
Dan: I mean, that's certainly part of it, but even if that weren't-- I mean, there's more in the sense that the court seems to be at least open to embracing legal propositions that might not be obvious. At least to the extent the court is suggesting that, yeah, maybe we are going to let class actions go forward.
Will: Yeah.
Dan: That's not just about presumption of regularity. That's about kind of being procedurally flexible to address a problem.
Will: Yeah, that's true. And that's like-- I've seen this theory also that Bivens might finally be saved by this administration. As more and more remedies disappear, one possible remedy that used to theoretically exist for Bivens causes of action against federal officers who violated clearly established law. And Bivens has been overruled like nine times, but never quite in name. And I've seen the theory that maybe now some of the justices are going to say, maybe it's a good thing we kept that case around.
Dan: I mean, it's not really useful in a case like this, right? Like an immigration case?
Will: I guess you'd need a more regular Fourth Amendment case. Because we don't think like Abrego Garcia can't bring a Bivens cause of action against Kristi Noem, right?
Dan: Yeah, and even if they could, she would just be indemnified and it's not clear how meaningful that would be. I mean, maybe the administration would just say, “Okay, great, we can deny people's due process as long as we pay some money for it. No big deal.”
Will: I'm confident that it's not what the administration would say.
Dan: Well, I mean, why? I mean, they wouldn't say it in those words, but--
Will: Because that would be accepting the illegality of their conduct.
Dan: Well, I mean, they would still fight the damages awards, but I'm not sure it would actually-- My point is, I'm not sure it would actually prevent the unconstitutional actions.
Will: It might not. I'm just saying they also wouldn't pay the money. They would argue that Bivens is unconstitutional and that taking money from them, even from--
Dan: But if you were going to ask them which they preferred. If we're going to say, “Look, we're going to let you get away with it, but then maybe you have to pay money later and you have to litigate that, or we're going to just say you can't do it at all,” they'd take option one, right?
Will: Yes. I'm just saying they would take option C, which is nothing.
Dan: Well, I mean, sure, [Will laughs] but I'm just saying that I'm just not sure how much protection Bivens actually provides here.
Will: Yeah. Okay. Well, good, because I think it's probably not coming back anyway.
Dan: Yeah.
Will: All right. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. We'd love to keep getting more reviews for the show as well to drown out the haters.
Dan: Go to our website, dividedargument.com, for transcripts, our blog, blog.dividedargument.com, for extended content from the broader Divided Argument community and various guest posts, store.dividedargument.com for merchandise. Please send us an email, pod@dividedargument.com, leave us a voicemail 314-649-3790. And I think I can actually promise there will not be a long delay between this and our next episode, because we've actually recorded two in a row and this is going to be the first one, so I don't need to tell you an excuse in advance. I guess if there is a delay, it will be because we accidentally deleted the already recorded episode file, so hopefully that doesn't happen.
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