A very quick breakdown of Friday afternoon's quietly significant ruling slapping down the lower courts in the Northern District of Texas Alien Enemies Act litigation—and what it means going forward.
The opinion clearly reflects the Court's distaste, if not disgust, with Trump's willingness to abandon hundreds, and probably tens of thousands, of individuals to imprisonment for life in a foreign dictatorship under a phony legal theory without giving these human beings at least the opportunity to contest their abandonment and imprisonment! This is a strong statement by the majority that the Rule of Law and common decency is still alive during this horror of an administration!
One thing I haven't seen much reporting on is the specifics of the agreement between the USG and El Salvador. I know there was a $6 million payment to El Salvador that paid them to house the detainees for a year, but that may be all we actually officialoy. Last week the group Democracy Forward filed a lawsuit against DOJ, DHS and State demanding the release of documents on the agreement with El Salvador.
Given that it was/is Miller/Noem/Rubio/Trump's intention that all of the detainees they've already sent out of the country never return to the United States, I would be stunned if there's a provision that somehow allows the USG to simply tell El Salvador "we want them back" and they will definitely comply...despite what Trump claims. Unlike Lord Cheeto, President Bukele's (presumably) not stupid. If you have something somebody else wants, only a fool gives up that advantage without getting something significant in return.
We all know Trump/Miller/Noem/Rubio *don't* want the detainees back, but IMO only a group with the combined IQ of a potato (and I realize I've just insulted potatoes) could enter into an agreement where they have almost zero leverage in the unlikely event they absolutely need the detainees back to save themselves from contempt or other charges or even merely electoral defeat. They've already paid Bukele $6 million. So what if he doesn't get another dime? He's already paying for the prison and everything else anyway. Not to mention the fact that he's apparently popular domestically, and has already used the military to intimidate El Salvador's Legislative Assembley into approving things he wants. The $6 million is "gravy" for him.
I fear there is a scenario where even though MAGA loses bigly in 2026 (and thus Congress bans the Trump Clown Show from paying El Salvador more money) *and* MAGA loses bigly in 2028, we *still* don't get all of these people back. Bukele is just as much as a wanna-be autocrat as Trump, if not more. What's his incentive to work with the US on this issue? Especially if Trump/Vance/Noem/Miller are all undead and able to post on social media in January 2029 and Bukele thinks one of them will win again in 2032?
Unless we want to go all Operation Just Cause (the 1989 invasion of Panama) or "just" send our SEALs, Marine Force Recon, the Green Berets, the Rangers and Night Stalkers to El Salvador to get all of the detainees back, I really don't know how this ends. Given the history of the US in Latin America and the fact Bukele's allegedly popular domestically, IMO militarily intervention would not be a good option at all.
Agree! I was going to post the same, that even though I subscribe to a lot of Supreme Court analysis, this is my go-to also to truly understand what their position is.
On A.A.R.P. II, if you will, on my 1st read, I think there may be four (4) holdings. But, I agree possibly the most important 7-2,holding in Case No: 24A10007; Citation; 605 U.S. ___ (2025) holding is ...
***** " ... this court may properly issue injunctive relief to the putative class in order to preserve jurisdiction pending appealprior to to formal class certification" [or sub class for that matter]. *****
See also Justice Kavanaugh's concurrence: " ... I would GRANT certirorari, order prompt briefing, hold oral argument soon thereafter and resolve the legal issues.". In short, correct the admitted USG "error" in Abrego Garcia vs. Noem.
I think the legal issues he wants to resolve are much deeper than the Abrego Garcia error. That error was not heeding the ruling barring his return to El Salvador, which applies only to him. The deeper question of whether the AEA applies, or is even Constitutional, applies to many more.
Would provisional class certification allow a court to rule on a purely constitutional question, such as whether the birthright citizenship clause means what it obviously means, with essentially the same effect as a nationwide injunction? Especially given the opinions language about the government acting to create artificial differences between plaintiffs.
>>“evidence now in the record” appears to be inconsistent with the government’s representations,
That's the closest I can ever recall the Court coming to stating that the government is lying. It doesn't seem at all subtle.
Courts do occasionally certify an "issue class" pursuant to FRCP 23(c)(4) that allows the court to dispose of threshold legal questions (e.g., what does a statute mean and are plaintiffs covered) and then decertify the class to allow further remedial or individual proceedings to disperse.
After four months of tiptoeing, how refreshing that the Supreme Court finally came up with a "very big deal" ruling to restrain the lawless trump regime. How wonderful that this ruling was 7-2!
I think it is very significant as well as very heartening that the Supreme Court is putting less and less stock in the Trump regime/administration characterizations of the cases.
I am beginning to find Justice Kavanaugh's approach to these unconstitutional/ lawless Executive Orders fascinating. His grilling of Sauer yesterday and his willingness today to bring these cases before the Court for a pointed "what the hell is this?" analysis sooner rather than later to be oddly refreshing.
The per curiam opinion makes apparent just how keenly aware the Court is of all developments and varying positions the administration has taken across multiple districts. I think I now better understand Justice Barrett’s incredulous questioning of SG Sauer regarding his statements of DOJ policy to respect Circuit Court rulings within that particular Circuit’s geographic jurisdiction.
One of Justice Alito's reasons why the named plaintiffs are not representative of others in a potential class action lawsuit is that the government promised not to deport them right away. Of course, that would allow the government to play its usual games - anytime some plaintiffs try to bring a class action suit, the government can say "We promise to be nice to those particular individuals, so they're not representative of everyone else we plan on screwing over."
After reading the opinions - I note that there was a significant call out of Rule 23 - which in the oral arguments yesterday seemed to be a rather significant point the government was making - the Government stating Rule 23 would solve all the issues of “universal injunctions.” There seemed, at least to me listening, that the Court had some doubts regarding rule 23 being the panacea the Government claims.
The Court, in this opinion, may have, in some sense, let the “cat out of the bag,” on how it will rule on the issue of universal injunctions.
I would never dream of predicting what the Court will do - that is a recipe for being shown to be wrong - but I must wonder whether this case hints that the Court may rule that in some cases, universal injunctions are necessary to prevent severe consequences when there is a blatant Constitutional issue at question.
Perhaps, I am wrong, but specifically mentioning defects in rule 23 in this case, may lead the Court to “err on the side of caution,” when gross violations of the Constitution are at stake.
Regardless, I feel you are correct- this maybe the most significant ruling of the term!
Empowering district courts to provisionally certify a class is big because it gives the courts a tool to tame some of Trump’s specious legal shenanigans. Seems to me that it might be a big clumsy tool that will work well for some things, but maybe not so well for other things. Dunno if it solves the problem of universal injunctions by making them less necessary or will ultimately generate more controversy. Did SCOTUS provide guidance for deciding when it’s appropriate to use this tool? Was it wise to put Texas and the 5th Circus in the driver’s seat on this stuff? I get the feeling that SCOTUS has ended up making quite a hash of things, and would have done things differently if they could go back to July and redo the insane and disastrous presidential immunity decision that has a lot to do with the mess Trump has made for us.
As I understand your analysis, while nationwide injunctions may go, they will be replaced by class action preliminaries. This is mostly cosmetic. The Court would do better to start the process of amending the Federal Rules of Civil and Criminal Procedure to make this more lucid and give Congress a chance to weigh in.
At argument, General Sauer used class certification as his primary refuge to escape the barrage of questions about how the courts could provide relief broader than the named plaintiffs before the Court. Whatever compromise the Court hammers out, Alito/Thomas are going to have a hard time embracing one that includes class cert as a solution after having said Rule 23 doesn't apply in habeas proceedings.
Trump's big ugly bill will not sail through Congress, and we can have an impact on it. There are ways to put some roadblocks in front of this bill. All is definitely not lost. We need to take advantage of Republican infighting.
Here the Court enters preliminary injunctive relief for a putative class while dispensing with the formalities of class certification before entering the inunction. But by the terms of the Court's Order, it may be in effect for a number of months or even half or a full year. As Steve notes this provides a basis for putative class relief in a variety of cases. But I wonder if there is that much difference between preliminary relief for a putative class and a nationwide injunction. That nationwide injunction is subject to appeal and could be modified or reversed, so it may have a shelf life as long as preliminary relief for a putative class.
During the argument on the birthright citizenship case, I did not hear anyone advancing a particular basis to limit such injunctions. Yes, some say file a class action, but DOJ admits that it may and does challenge motions for class certification. So what is wrong with a nationwide injunction when the "class members" are everyone in the United States? I really find incomprehensible that the Solicitor General raised the nationwide injunction issue on cases interpreting and enforcing the 14th Amendment, which of course applies to all persons in the United States, and particularly on an issue where DOJ has lost all of the birthright citizenship cases. As a matter of litigation strategy it makes no sense.
SGen Sauer raised that so as to open a new basiss to keep depriving people of rights even as they keep losing. Route the court to class certification, then (as he admitted in oral argument) oppose class certification. Every procedural gimmick is sought.
Do you see one or the other, i.e., preliminary relief for a putative class or a nationwide injunction, as preferable to a or the plaintiff in these circumstances or generally in circumstances of a government abusing authority against people in the governed society?
The nationwide injunction can be a permanent injunction subject to appeal, but the class action can be objected by the government on a variety of grounds. A normal class certification can slow down a case, but the preliminary putative class can solve that problem. In this case interpreting the 14th Amendment, I do not see any problem with a nationwide injunction. And I do not know why the government raised the issue on this case.
And, you concluding question is important for us to ask and to expect an answer to.
Perhaps the direct and conscious focus that a carefully worded nationwide [some suggest universal] injunction could have and clearly contribute to is the people's interest in honest scrutiny of the protections to them [the people, each of us, any of us, any set of us] by or within the scope and force of the 14th Amendment.
The opinion clearly reflects the Court's distaste, if not disgust, with Trump's willingness to abandon hundreds, and probably tens of thousands, of individuals to imprisonment for life in a foreign dictatorship under a phony legal theory without giving these human beings at least the opportunity to contest their abandonment and imprisonment! This is a strong statement by the majority that the Rule of Law and common decency is still alive during this horror of an administration!
I hope it will survive, if not outlast, the next 3 1/2 years.
How do i read comments please ?
One thing I haven't seen much reporting on is the specifics of the agreement between the USG and El Salvador. I know there was a $6 million payment to El Salvador that paid them to house the detainees for a year, but that may be all we actually officialoy. Last week the group Democracy Forward filed a lawsuit against DOJ, DHS and State demanding the release of documents on the agreement with El Salvador.
Given that it was/is Miller/Noem/Rubio/Trump's intention that all of the detainees they've already sent out of the country never return to the United States, I would be stunned if there's a provision that somehow allows the USG to simply tell El Salvador "we want them back" and they will definitely comply...despite what Trump claims. Unlike Lord Cheeto, President Bukele's (presumably) not stupid. If you have something somebody else wants, only a fool gives up that advantage without getting something significant in return.
We all know Trump/Miller/Noem/Rubio *don't* want the detainees back, but IMO only a group with the combined IQ of a potato (and I realize I've just insulted potatoes) could enter into an agreement where they have almost zero leverage in the unlikely event they absolutely need the detainees back to save themselves from contempt or other charges or even merely electoral defeat. They've already paid Bukele $6 million. So what if he doesn't get another dime? He's already paying for the prison and everything else anyway. Not to mention the fact that he's apparently popular domestically, and has already used the military to intimidate El Salvador's Legislative Assembley into approving things he wants. The $6 million is "gravy" for him.
I fear there is a scenario where even though MAGA loses bigly in 2026 (and thus Congress bans the Trump Clown Show from paying El Salvador more money) *and* MAGA loses bigly in 2028, we *still* don't get all of these people back. Bukele is just as much as a wanna-be autocrat as Trump, if not more. What's his incentive to work with the US on this issue? Especially if Trump/Vance/Noem/Miller are all undead and able to post on social media in January 2029 and Bukele thinks one of them will win again in 2032?
Unless we want to go all Operation Just Cause (the 1989 invasion of Panama) or "just" send our SEALs, Marine Force Recon, the Green Berets, the Rangers and Night Stalkers to El Salvador to get all of the detainees back, I really don't know how this ends. Given the history of the US in Latin America and the fact Bukele's allegedly popular domestically, IMO militarily intervention would not be a good option at all.
Thanks for this! You are my go-to when I’m looking to understand Supreme
Court developments.
Agree! I was going to post the same, that even though I subscribe to a lot of Supreme Court analysis, this is my go-to also to truly understand what their position is.
On A.A.R.P. II, if you will, on my 1st read, I think there may be four (4) holdings. But, I agree possibly the most important 7-2,holding in Case No: 24A10007; Citation; 605 U.S. ___ (2025) holding is ...
***** " ... this court may properly issue injunctive relief to the putative class in order to preserve jurisdiction pending appealprior to to formal class certification" [or sub class for that matter]. *****
See also Justice Kavanaugh's concurrence: " ... I would GRANT certirorari, order prompt briefing, hold oral argument soon thereafter and resolve the legal issues.". In short, correct the admitted USG "error" in Abrego Garcia vs. Noem.
I think the legal issues he wants to resolve are much deeper than the Abrego Garcia error. That error was not heeding the ruling barring his return to El Salvador, which applies only to him. The deeper question of whether the AEA applies, or is even Constitutional, applies to many more.
Concur.
Would provisional class certification allow a court to rule on a purely constitutional question, such as whether the birthright citizenship clause means what it obviously means, with essentially the same effect as a nationwide injunction? Especially given the opinions language about the government acting to create artificial differences between plaintiffs.
>>“evidence now in the record” appears to be inconsistent with the government’s representations,
That's the closest I can ever recall the Court coming to stating that the government is lying. It doesn't seem at all subtle.
Courts do occasionally certify an "issue class" pursuant to FRCP 23(c)(4) that allows the court to dispose of threshold legal questions (e.g., what does a statute mean and are plaintiffs covered) and then decertify the class to allow further remedial or individual proceedings to disperse.
If we could only rescue that, often forgotten, word, "lying". I suppose I'll take whatever I can meanwhile.
Great question.
Steve, what a great summary of this important opinion. Thanks for staying on top of all this and keeping all of us in the loop.
After four months of tiptoeing, how refreshing that the Supreme Court finally came up with a "very big deal" ruling to restrain the lawless trump regime. How wonderful that this ruling was 7-2!
It may not have been 7 to 2, as noted in Steve's analysis above.
Only Alito and Thomas dissented. Kavanaugh wanted to do more than the other six justices in the majority.
I think it is very significant as well as very heartening that the Supreme Court is putting less and less stock in the Trump regime/administration characterizations of the cases.
I am beginning to find Justice Kavanaugh's approach to these unconstitutional/ lawless Executive Orders fascinating. His grilling of Sauer yesterday and his willingness today to bring these cases before the Court for a pointed "what the hell is this?" analysis sooner rather than later to be oddly refreshing.
He didn’t block the Miami Dade recount in 2000 for this.
The per curiam opinion makes apparent just how keenly aware the Court is of all developments and varying positions the administration has taken across multiple districts. I think I now better understand Justice Barrett’s incredulous questioning of SG Sauer regarding his statements of DOJ policy to respect Circuit Court rulings within that particular Circuit’s geographic jurisdiction.
Excellent. Thank you for making this accessible to interested parties. IANAL, but I can understand your careful explanations.
One of Justice Alito's reasons why the named plaintiffs are not representative of others in a potential class action lawsuit is that the government promised not to deport them right away. Of course, that would allow the government to play its usual games - anytime some plaintiffs try to bring a class action suit, the government can say "We promise to be nice to those particular individuals, so they're not representative of everyone else we plan on screwing over."
After reading the opinions - I note that there was a significant call out of Rule 23 - which in the oral arguments yesterday seemed to be a rather significant point the government was making - the Government stating Rule 23 would solve all the issues of “universal injunctions.” There seemed, at least to me listening, that the Court had some doubts regarding rule 23 being the panacea the Government claims.
The Court, in this opinion, may have, in some sense, let the “cat out of the bag,” on how it will rule on the issue of universal injunctions.
I would never dream of predicting what the Court will do - that is a recipe for being shown to be wrong - but I must wonder whether this case hints that the Court may rule that in some cases, universal injunctions are necessary to prevent severe consequences when there is a blatant Constitutional issue at question.
Perhaps, I am wrong, but specifically mentioning defects in rule 23 in this case, may lead the Court to “err on the side of caution,” when gross violations of the Constitution are at stake.
Regardless, I feel you are correct- this maybe the most significant ruling of the term!
Empowering district courts to provisionally certify a class is big because it gives the courts a tool to tame some of Trump’s specious legal shenanigans. Seems to me that it might be a big clumsy tool that will work well for some things, but maybe not so well for other things. Dunno if it solves the problem of universal injunctions by making them less necessary or will ultimately generate more controversy. Did SCOTUS provide guidance for deciding when it’s appropriate to use this tool? Was it wise to put Texas and the 5th Circus in the driver’s seat on this stuff? I get the feeling that SCOTUS has ended up making quite a hash of things, and would have done things differently if they could go back to July and redo the insane and disastrous presidential immunity decision that has a lot to do with the mess Trump has made for us.
As I understand your analysis, while nationwide injunctions may go, they will be replaced by class action preliminaries. This is mostly cosmetic. The Court would do better to start the process of amending the Federal Rules of Civil and Criminal Procedure to make this more lucid and give Congress a chance to weigh in.
At argument, General Sauer used class certification as his primary refuge to escape the barrage of questions about how the courts could provide relief broader than the named plaintiffs before the Court. Whatever compromise the Court hammers out, Alito/Thomas are going to have a hard time embracing one that includes class cert as a solution after having said Rule 23 doesn't apply in habeas proceedings.
Trump's big ugly bill will not sail through Congress, and we can have an impact on it. There are ways to put some roadblocks in front of this bill. All is definitely not lost. We need to take advantage of Republican infighting.
Defeat Trump's ᗺig ᗺackassward ᗺoondoggle
https://kathleenweber.substack.com/p/trumps-ig-ackassward-oondoggle/comments
Here the Court enters preliminary injunctive relief for a putative class while dispensing with the formalities of class certification before entering the inunction. But by the terms of the Court's Order, it may be in effect for a number of months or even half or a full year. As Steve notes this provides a basis for putative class relief in a variety of cases. But I wonder if there is that much difference between preliminary relief for a putative class and a nationwide injunction. That nationwide injunction is subject to appeal and could be modified or reversed, so it may have a shelf life as long as preliminary relief for a putative class.
During the argument on the birthright citizenship case, I did not hear anyone advancing a particular basis to limit such injunctions. Yes, some say file a class action, but DOJ admits that it may and does challenge motions for class certification. So what is wrong with a nationwide injunction when the "class members" are everyone in the United States? I really find incomprehensible that the Solicitor General raised the nationwide injunction issue on cases interpreting and enforcing the 14th Amendment, which of course applies to all persons in the United States, and particularly on an issue where DOJ has lost all of the birthright citizenship cases. As a matter of litigation strategy it makes no sense.
SGen Sauer raised that so as to open a new basiss to keep depriving people of rights even as they keep losing. Route the court to class certification, then (as he admitted in oral argument) oppose class certification. Every procedural gimmick is sought.
Thank you, Mr Berk, for this assessment.
Do you see one or the other, i.e., preliminary relief for a putative class or a nationwide injunction, as preferable to a or the plaintiff in these circumstances or generally in circumstances of a government abusing authority against people in the governed society?
The nationwide injunction can be a permanent injunction subject to appeal, but the class action can be objected by the government on a variety of grounds. A normal class certification can slow down a case, but the preliminary putative class can solve that problem. In this case interpreting the 14th Amendment, I do not see any problem with a nationwide injunction. And I do not know why the government raised the issue on this case.
Thank you.
And, you concluding question is important for us to ask and to expect an answer to.
Perhaps the direct and conscious focus that a carefully worded nationwide [some suggest universal] injunction could have and clearly contribute to is the people's interest in honest scrutiny of the protections to them [the people, each of us, any of us, any set of us] by or within the scope and force of the 14th Amendment.