151. The Supreme Court's (Alien Enemies Act) Patience is Wearing Thin

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.

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Way back on <checks notes> Wednesday, I wrote a long post updating the state of play in the (many) cases challenging President Trump’s attempt to use the Alien Enemies Act of 1798 to remove from the United States, on a mass, summary basis, individuals the government claims to be Venezuelan members of the Tren de Aragua (TdA). Part of why we have a bunch of cases is because of the Supreme Court’s April 7 ruling in Trump v. J.G.G.—in which the Court had held that detainees had to bring their challenges where they’re held, but also that they’re entitled to meaningful notice of their impending removal and an opportunity to challenge it.

As I noted then, the Supreme Court had yet to decide the ACLU’s pending emergency application in the case from the Northern District of Texas—with the unhelpful caption “A.A.R.P. v. Trump.” That’s the case in which the Court had temporarily blocked further removals in its after-midnight ruling early on Saturday, April 19 (which I covered here). But a full ruling on the application has been pending ever since.

Well, around 3:45 on Friday afternoon, that ruling came down. And the decision—in “A.A.R.P. II”—is a pretty big deal. So I thought I’d put together this quick post that walks through what happened—and why it matters—in the form of eight questions:

1. What Did the Court … Hold? There’s a lot of technical stuff in the eight-page, unsigned majority opinion.¹ What’s especially important are, by my count, three different holdings: First, that the Fifth Circuit did have jurisdiction to hear the plaintiffs’ appeal of the district court’s refusal to block their removal (it had concluded otherwise). Second, that the plaintiffs were entitled to more notice than they had received as of April 18. And third—and this is the quiet bombshell in the ruling—that “this Court may properly issue temporary injunctive relief to the putative class in order to preserve our jurisdiction pending appeal,” even without resolving whether full class certification is likely. In other words, a majority of the Supreme Court held that, when issuing preliminary relief, it (and lower federal courts) can recognize a “putative” (or “provisional”) class of plaintiffs for purposes of temporary relief even before a class has been properly certified in the district court—and perhaps even without regard to whether it will be. More below on why this is a big deal.

2. What Happens Next (and When)? The immediate effect of the ruling is to extend the pause that had already been in place of any removals under the AEA from the Northern District of Texas. But the Court also treated the ACLU’s emergency application as a petition for certiorari, granted it, vacated the Fifth Circuit’s decision, and remanded with specific instructions to the court of appeals: to “address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs’ underlying habeas claims that the AEA does not authorize their removal pursuant to the President’s March 14, 2025, Proclamation, and (2) the issue of what notice is due, as to the putative class’s due process claims against summary removal.” That’s a pretty … specific … remand—one that sure seems designed to prevent the Fifth Circuit from finding some other basis for ruling against the plaintiffs. What’s more, the majority insisted that “lower courts should address AEA cases expeditiously.” Thus, this case will move forward in the Fifth Circuit (quickly) on both the facial validity of President Trump’s invocation of the AEA and how much process is due to individuals before they can be removed under it. (The issue might also move quickly in the Second and Tenth Circuits, but the Fifth Circuit case now is the clubhouse leader.)

3. Is It Me, Or is the Majority Opinion … Unusually Pointed? It’s not you. There are at different passages in which the majority openly seems to be expressing … frustration … with the government; the lower courts; and Justice Alito (who wrote a dissenting opinion that was joined by Justice Thomas), respectively.

   1. The Government: On page 2, the majority goes into detail about the slippery language the government used on April 18 re: whether any removals under the AEA were imminent, then notes that “evidence now in the record” appears to be inconsistent with the government’s representations, and concludes by underscoring the ongoing litigation in Abrego Garcia—and how difficult it has proven to get detainees back once they have been removed (indeed, Abrego Garcia is cited again on page 4). This is quite a subtle but significant dig at the government for the shell games it’s been playing with AEA detainees, especially for a majority opinion

   2. The Lower Courts: The Court takes a rather healthy shot at the Fifth Circuit for not taking the gravity of the plaintiffs’ claims (and the district court’s delay in ruling on them) seriously enough—correcting the record in the process. As it writes, “Here the District Court’s inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.” Indeed, that text inside the em-dashes is the majority correcting an erroneous portrayal of the timeline by both the lower courts and Justice Alito back in April. More generally, the opinion is all-but dripping with exasperation that the lower courts didn’t think these cases were serious enough, or the plaintiffs’ allegations of imminent harm plausible enough, to justify moving faster.

   3. Justice Alito: Finally, in a portion of the opinion devoted entirely to responding to Justice Alito’s dissent, the majority begins by “reject[ing] the dissent’s characterization of the events that transpired on April 18.” That may seem tame by the standards of contemporary public discourse; it’s a pretty sharp elbow in a majority opinion by the Supreme Court. And, again, it appears to reflect real concern on the part of the justices in the majority that the dissenting justices seem so un-troubled by how events appeared to be transpiring back in April.

4. Why Did Justice Alito Dissent? The dissent effectively starts from the proposition that “the District Court had no good reason to think that either A. A. R. P. or W. M. M. was in imminent danger of removal” back on April 18, and reasons backwards from there. It argues that the Court itself lacks jurisdiction to grant the relief the plaintiffs sought (as I explained in response to Alito’s dissent from the April 19 order, this is clearly incorrect). It then argues that in any event, plaintiffs were unlikely to prevail on the merits because (1) class certification isn’t available in a habeas petition; and (2) it isn’t appropriate in this case. (Interestingly, Alito never explains why relief wouldn’t have been appropriate to at least the two named plaintiffs.) There’s not much new here beyond the stuff Alito got wrong back in April—with one exception: Alito goes out of his way to criticize the majority’s conclusion that federal courts can provisionally certify classes for the purposes of preliminary relief even without reaching a tentative judgment about whether a class will ultimately be certified (see, especially, the second paragraph of footnote 3 on page 8 of his dissent). Among other things, his unmissable frustration on this point has the (perhaps unintended) effect of making clear just how deliberate a holding this really is—and will provide powerful support in other cases when litigants point to the majority opinion as reasserting the availability of temporary relief to putative classes without having to decide whether formal class certification is likely.

5. Why Did Justice Kavanaugh Write Separately? Here’s where things get especially interesting: Justice Kavanaugh added three paragraphs of his own—the first two of which are mostly just restating things that already followed from the majority opinion. But in the third paragraph, Kavanaugh writes that he “would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues.” Instead, he would “grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.” I find this passage telling in two respects: First, this was clearly a debate among the justices in the majority, and one Kavanaugh lost. For what it’s worth, I see both sides here; we’d all be better off having these questions settled conclusively, but the Court’s intervention usefully freezes the status quo (and removes the emergency) in a way that makes that resolution at least a bit less urgent. Second, given how much of yesterday’s oral argument in the birthright citizenship cases (which I’m writing about for Monday) featured the justices trying to game out ways to reduce the impact of getting rid of nationwide injunctions, including by having more expedited merits review, here’s Kavanaugh identifying a(nother) case where he would do so. It’s possible that we’ll look back at this concurrence as reflecting his vote (and, perhaps, writing) in the birthright citizenship cases, too.

6. Wait—What Does This Have to Do With Yesterday’s Argument?? I’ll have much more to say about this in Monday’s regular issue of the newsletter (spoiler alert!), but assuming that the Court is going to do at least something to narrow (if not eliminate) nationwide injunctions in the birthright citizenship cases, the impact of such a ruling may well depend upon (1) the availability of provisional certification of nationwide plaintiff classes in district courts in suits challenging Trump policies; and (2) the Supreme Court’s willingness to more quickly hand down conclusive rulings on the legality of Trump administration policies. By holding that provisional classes can be recognized even without analyzing the likelihood of full class certification, the Court seems to have taken a very big step toward answering (1). By remanding the merits of the AEA cases to the Fifth Circuit, it seems to have gone the other way on (2).

7. What Else Did We Learn? Two really small points: First, the majority opinion says that the April 19 ruling came down at “12:52 a.m. eastern time.” As I noted back then, the ruling was distributed to the press corps at 12:56 a.m. (and posted to the internet shortly thereafter). So this confirms something we’ve long suspected—the Court has some way of tracking the precise time when its unscheduled rulings become “official” (perhaps when they’re sent to the parties?) that it doesn’t make public. (And it should!) Second, this is even more inside baseball, but the majority responds to Judge Hendrix’s ruling last Friday refusing to certify a class in this case almost entirely in a footnote—which strongly suggests that the opinion had already been written before he ruled. It’s fascinating to wonder whether the reason why we got the ruling only today was because the Court was just waiting for Justice Alito to finish his dissent, or because it was (also?) waiting for yesterday’s arguments in the birthright citizenship cases—again, given the potential overlapping relevance of the provisional class certification holding.

8. How Big a Deal is this Ruling? I’ve saved the hardest question for last. My own view is that this ruling is a very big deal—and, indeed, much more important than the Court’s temporary (but massively important in its own right) intervention in the same case on April 19. For me, there are three reasons why:

   1. Indefinitely Freezing AEA Removals: Although this ruling is limited to individuals held within the Northern District of Texas, it makes abundantly clear to lower courts (and, insofar as it’s listening, the government), that there aren’t going to be any removals under the AEA until the facial validity and due process questions are answered—almost certainly by the justices after the Fifth Circuit issues its ruling, presumably later this summer. This was, to me, the implicit message of the April 19 intervention; it is all-but explicit now. Indeed, this may be why President Trump, who didn’t really react to the April 19 ruling, lashed out publicly early Friday evening. The AEA as a basis for removal is dead—at least for the time being, and until the Supreme Court specifically says otherwise.

   2. The Provisional Class Certification Holding: I know it’s wonky, but the majority’s holding that plaintiff classes can be provisionally certified by district courts for purposes of providing temporary relief even without resolving the likelihood of full class certification is going to have an impact in lots of cases—well beyond the AEA. That impact may well help to mitigate the damage caused by a ruling in the birthright citizenship cases that does away with, or even narrows, nationwide injunctions. But it is almost certainly going to have significant effects in other contexts, too—and not just in challenges to Trump administration policies. I remain very much not a fan of the justices reaching significant holdings in rulings on emergency applications. But here’s one that might actually do some good on the ground.

   3. The Broader Refusal to Accept the Government’s Good Faith: I continue to be fascinated by the eroding “presumption of regularity,” and where it is (and isn’t) showing up in Supreme Court decisions in Trump-related cases. That erosion shows up in A.A.R.P. II in spades. Indeed, although the majority never quite brings itself to say the quiet part out loud, the point animating most of its disagreement with the dissent is its unwillingness to rest its analysis on the government’s representations rather than on the plaintiffs’ allegations. We’ll see if this skepticism remains limited to the removal context, or whether it starts showing up in other rulings in Trump-related cases. But it’s clearly the elephant in the room here.

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There’s surely more to say—especially about the majority opinion and Justice Alito’s dissent. But it’s Friday night, so I’ll hit the pause button here. Please feel free to ask questions in the comments!! Otherwise, I hope you’ve found this summary useful—and, if so, I hope you’ll consider sharing it:

We’ll be back Monday with our next “regular” edition of “One First.” If you’re not already a subscriber, please consider signing up. And if you’re not yet a paid subscriber, I hope you’ll consider becoming one if your circumstances permit. Indeed, your support makes it that much more possible to put out unscheduled issues on late-breaking topics like this one:

Regardless, I hope you all have a great weekend—except for the Yankees, who open a three-game series against the Mets in the Bronx in about 15 minutes.

Stay safe out there.

1. It’s not unusual that an opinion of the Court respecting an emergency application is unsigned. But it means, among other things, that we can’t be totally sure of the vote count. Most outlets are reporting the ruling as 7-2, because only Justices Thomas and Alito publicly noted their dissent. The best we can say, alas, is that there were two public dissenters. Whether any other justices voted against relief behind the scenes is something we’ll likely never know (at least, not in our lifetimes).