Untangling The Deportation Cases

The Trump administration wants a confrontation with the courts. Trump wants to try to break them.

That’s an essential path forward for a dictator. Like Trump’s new buddy, Nayib Bukele, whose government removed all of the Supreme Court Justices in El Salvador when they stood in his way and replaced them with more compliant ones. Or in Hungary, under Viktor Orbán, where the independence of the judiciary has been seriously compromised.

It’s time for people to stop pretending that it isn’t happening. Trump is trying to break the government. To control all its levers, he needs a complicit judiciary to go along with a complacent Congress. To understand the big picture, we need to spend some time in the weeds, examining the different deportation cases. There are so many of them that they turn into a jumble if we aren’t careful to parse them, which is our job for tonight. This is our roadmap to the most important deportation cases at the moment.

The Supreme Court seems to have an inkling of the fix they’ve put themselves in, with Trump trying to accumulate power at the courts’ expense. Just after 1 a.m. Saturday morning, a majority of the Court (unsurprisingly minus Justices Alito and Thomas) told Donald Trump he couldn’t deport more Venezuelans to El Salvador under the Alien Enemies Act. The Supreme Court’s order followed a confusing chain of events that began Friday when ACLU lawyers learned that ICE might be transferring people out of the Southern District of Texas, where a judge had enjoined further deportations, into the Northern District of Texas, where no such order had been entered. The lawyers were concerned that detainees were being held in or moved to the Bluebonnet Detention Center in the Northern District of Texas in preparation for deportation flights to El Salvador.

There are so many deportation cases happening at once that it’s difficult to keep up. Tonight, we’ll try to separate them so we can understand what is—and what isn’t—happening here. But keep in mind that while the substance of this dispute centers on the policy goal of deporting people Trump calls criminal illegal aliens, it is also a vehicle this administration is using to undercut the ability of the courts to act as a check on the executive branch and make it easier for Trump to range beyond the authority the Constitution affords to the president.

The case the Supreme Court decided last night is A.A.R.P. v. Trump.

A.A.R.P. is one of four cases involving deportations under the Alien Enemies Act; we’ll get to the other three in a minute. Note that it is a limited order. It prevents the government from deporting people while the matter is pending. This case will be back before the Supreme Court before it’s ultimately resolved.

J.G.G. v. Trump is the Supreme Court’s April 7 decision in the Washington, D.C., case (originally before Judge Boasberg), where the ACLU challenged the government’s deportation of two planeloads of Venezuelans to El Salvador under the Alien Enemies Act.

The Supreme Court issued a 5-4 decision in J.G.G. that dashed hopes of getting nationwide protection for people whom ICE was deporting without due process under the Alien Enemies Act in a single case in the District of Columbia. The Court ruled that detainees had to bring suit wherever they were being held to seek habeas relief. The Court did not rule on the underlying issues involving the Alien Enemies Act.

The four dissenting Justices—Sotomayor, Kagan, Jackson, and in part Barrett—agreed with the five justices in the majority that the plaintiffs, regardless of location, had to receive due process rights before being deported. As the majority wrote, “…today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge.” The notice has to be provided in a fashion that makes it possible for detainees to go to court before they are deported.

(Note: This decision is not to be confused with the Supreme Court’s recent decision in the Abrego Garcia case. That order, widely billed as a 9-0 decision although the more correct view is that no justice wrote to say they had dissented, ordered the government to facilitate Abrego Garcia’s return to the United States. It is not an Alien Enemies case, unlike the case the Supreme Court decided last night and the related cases. That’s because the government argues it has a legitimate Title 8 order to deport Abrego Garcia, while his lawyers have argued the immigration judge’s order withholding his deportation is still in place.)

In four cases after the Supreme Court decided J.G.G., injunctions were sought in various districts where detainees were being held.

A.A.R.P., which we discussed above, is one of them.

Plaintiffs succeeded in getting courts to temporarily prohibit the government from further removals under the Alien Enemies Act in:

• J.A.V. v. Trump: On April 9, a federal judge in the Southern District of Texas issued a temporary restraining order that blocked the removal of people held at the El Valle Detention Center in Raymondville, Texas.

• G.F.F. v. Trump: Also on April 9, a federal judge in the Southern District of New York issued an order preventing any deportations from that district.

• D.B.U. v. Trump: On April 14, a federal judge in the District of Colorado entered a temporary restraining order barring removals in that district.

Each of those orders applied only to people being held in that particular setting, because of the Court’s decision in J.G.G.

That was the legal run-up to Friday afternoon, when lawyers learned that new efforts to deport people might be afoot. That discovery led to a flurry of efforts in different courts.

Northern District of Texas: Back to A.A.R.P., the case the Supreme Court ruled on early this morning. Before Friday, the Judge, James Wesley Hendrix, rejected a request for an order protecting two individual plaintiffs and what’s called a “putative class” of detainees there. The putative class refers to the lawyers’ request that the court certify the case as a class action so they could get relief for everyone in the district who is impacted by Trump’s Alien Enemies Act “proclamation” at once, instead of having to do it one person at a time. At that time, the Judge denied the request based on a representation by the lawyer for the Justice Department that the two individuals were not at risk of imminent removal from the U.S. He said he would rule on the request to certify a class at a later date.

Then, things heated up. Friday, around lunchtime, the ACLU went back to Judge Hendrix, seeking a TRO that would have prevented the removals that became the subject of the Supreme Court’s 1 a.m. order. When he didn’t rule, the ACLU filed an emergency appeal to the Fifth Circuit Court of Appeals. They refused to grant relief.

Also on Friday, Judge Hendrix declined to enter the order. He wrote that because the plaintiffs had already appealed to the Fifth Circuit when he failed to rule promptly, he’d lost jurisdiction over the case and no longer had the ability to enter any orders. He seemed affronted that the plaintiffs sought speedy action, which comes off as a little tone deaf given the circumstances and the lack of good faith the government has shown in this situation. Judge Hendrix spent most of the five pages of his order justifying the “diligence” with which he worked, but as a practical matter, given that these were emergency requests for relief, it’s not clear to me that the Judge was correct when he said the appeal deprived him of jurisdiction.

Washington, D.C.: ACLU lawyers also went back to Judge Boasberg in Washington, D.C., around 7:00 p.m., asked for a TRO in the J.G.G. case. Although sympathetic to the plaintiffs’ predicament, Judge Boasberg said from the bench that the Supreme Court’s earlier decision in the J.G.G. case prevented him from taking action on behalf of detainees in Texas. This is likely correct.

That’s how we got a middle-of-the-night ruling from the Supreme Court, with ACLU lawyers racing to the Court for emergency protection for their clients, which the Supreme Court ultimately granted. At least for now, their clients cannot be deported, unless the Trump government wants to directly violate the Supreme Court’s order.

Hopefully, that discussion untangles the case for you. We should be able to keep the Alien Enemies Act cases straight and also, separate from Abrego Garcia. Litigation can get complicated!

Next week, it’s likely that we’ll see the ACLU or other lawyers try to get classes approved in each of the 94 federal districts. If successful, that will prevent more sleight-of-hand by the government. Otherwise, courts and counsel will have to keep playing whack-a-mole, trying to stay ahead of the government every time it pops up with plans to deport people out of a new district where there is no injunction. The Solicitor General has already filed a Kafkaesque brief with the Supreme Court, suggesting that Court can’t rule until the district court and court of appeals have plenty of time to rule, as though unaware that the government was attempting to pull another fast one here.

I’m tempted to point out that the Supreme Court brought this upon itself, with the ruling in J.G.G., but that would be petty on my part.

If you want to read more about the Supreme Court’s decision last night, my good friend Steve Vladeck has an excellent piece here.

We’re in this together,

Joyce