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.
One of my favorite fictional characters says (paraphrasing), "always deal with the NOW. ... Being dead limits your options." So stay safe first, then deal with/be interested in other, not-imnediately-life-threatening matters. Stay safe.
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.
Have you made a post on the arguments that the 14th Amendment DOES NOT automatically grant citizenship to the children of illegal aliens? It seems like a tough argument to make but I want to know how persuasive or legitimate those arguments are.
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.
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.
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.
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.
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!
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.
Can you comment on Jack Goldsmith's contention that John Sauer's concession that the Administration will consider itself bound by a ruling of the Court, and will commit itself to following such a ruling, is a huge deal that will play a major role in how the Court rules on the universal injunction issue? To a lot of us this seems like not a concession at all, but just a (welcome) statement that the Administration won't go rogue and ignore the law. But Goldsmith seems to feel strongly that it is somehow unprecedented and significant. Do you understand the argument?
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.
Very useful summary! One part was not clear: your reference to the majority response to Judge Hendrix’s ruling last Friday refusing to certify a class in this case (I understood the focus of its being in a footnote, just not the substance of their response). I’d appreciate more explanation of that.
Glad for you! Survival is always welcome.
One of my favorite fictional characters says (paraphrasing), "always deal with the NOW. ... Being dead limits your options." So stay safe first, then deal with/be interested in other, not-imnediately-life-threatening matters. Stay safe.
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.
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.
Have you made a post on the arguments that the 14th Amendment DOES NOT automatically grant citizenship to the children of illegal aliens? It seems like a tough argument to make but I want to know how persuasive or legitimate those arguments are.
In addition to S Ct precedent on this subject, FYI-
Link to early US Naturalization Laws;
https://socialwelfare.library.vcu.edu/federal/naturalization-process-in-u-s-early-history/
This link is to current law, Immigration and Nationality Act:
https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act
I'm not a lawyer, but the following references get into a lot of detail about this question.
See (1) for links to arguments by John Eastman and others against birthright citizenship.
See (2) for a NY Times opinion piece partly supporting Eastman's argument.
See (3) for a refutation of the argument in (2).
See (4) for another refutation of Eastman's argument, by James C. Ho. This piece was cited by Dan Bielaski in another reader thread on this site.
[1] https://americanmind.org/features/the-case-against-birthright-citizenship-2/birthright-citizenship-game-on/
[2] https://www.nytimes.com/2025/02/15/opinion/trump-birthright-citizenship.html
[3] https://blog.dividedargument.com/p/from-a-reader-thoughts-on-why-the
[4] https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf
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.
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.
Great question.
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.
Regarding your baseball comment, respectfully I dissent.
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.
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.
How do i read comments please ?
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
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.
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.
Awesome analysis in record time!
Can you comment on Jack Goldsmith's contention that John Sauer's concession that the Administration will consider itself bound by a ruling of the Court, and will commit itself to following such a ruling, is a huge deal that will play a major role in how the Court rules on the universal injunction issue? To a lot of us this seems like not a concession at all, but just a (welcome) statement that the Administration won't go rogue and ignore the law. But Goldsmith seems to feel strongly that it is somehow unprecedented and significant. Do you understand the argument?
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.
Very useful summary! One part was not clear: your reference to the majority response to Judge Hendrix’s ruling last Friday refusing to certify a class in this case (I understood the focus of its being in a footnote, just not the substance of their response). I’d appreciate more explanation of that.