“Both the Executive and the Judiciary have an obligation to follow the law.”
Those thirteen words, penned by Justice Samuel Alito on Holy Saturday, represent the first admission by the judiciary that courts too can wrongly flout the law.
Justice Alito’s stark acknowledgement concluded his bullet-point evisceration of the Supreme Court’s “unprecedented” command that President Trump not remove a “putative class of detainees” under the Alien Enemies Act. The Supreme Court had entered that order shortly after midnight after the American Civil Liberties Union (“ACLU”) filed an emergency application asking alternatively for an emergency injunction, an immediate administrative injunction, a writ of mandamus, or a stay of removal, to prevent the Trump Administration from removing Venezuelans to El Salvador pursuant to the Alien Enemies Act.
The ACLU’s scattershot request for relief from the Supreme Court came a mere two days after they sued the Trump Administration in a federal court in Texas — and before that court or the Fifth Circuit Court of Appeals had an opportunity to rule on the request for an injunction barring the removal of any more aliens to El Salvador.
The ACLU filed the habeas corpus complaint on Wednesday in the Northern District of Texas, on behalf of two plaintiffs, identified merely as A.A.R.P. and W.M.M., but the ACLU also sought certification of a class defined as “[a]ll noncitizens in custody in the Northern District of Texas who were, are, or will be subject to the March 2025 Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua’ and/or its implementation.”
Simultaneously, the ACLU filed a motion for a Temporary Restraining Order to prevent the Trump Administration from removing any aliens under the presidential proclamation Trump signed on March 14, 2024. That proclamation provided that “all Venezuelan citizens 14 years of age or older who are members of TdA [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
On March 15, 2024, even before the Trump Administration published the proclamation, the ACLU had filed a similar class action in a D.C. federal court. Early that Saturday morning, Judge James Boasberg, a Barack Obama appointee, entered a TRO barring the Trump Administration from removing the five named plaintiffs in that case. Judge Boasberg then scheduled an emergency hearing later in the day to consider the ACLU’s request to certify a class and to extend the TRO to enjoin the removal any members of the class.
During the Saturday afternoon hearing, the Trump Administration stressed that because the named plaintiffs were detained in Texas and because the lawsuit “sounded in habeas” — a type of case that concerns the physical custody of an individual — the D.C.-based court lacked jurisdiction. The ACLU would then voluntarily dismiss the habeas claims, and Judge Boasberg would later enter a written order certifying a class of all noncitizens in U.S. custody who are subject to the presidential proclamation. The Obama appointee then enjoined the government “from removing members of such class, . . . ”
By the time Judge Boasberg had entered his written order, the Trump Administration had already removed two planes filled with illegal aliens from the United States. Judge Boasberg would later find there was probable cause to find the “Defendants acted contemptuously,” by not turning the planes around, as he had orally commanded, and by not returning the aliens to the United States after the planes had landed in El Salvador. The Trump Administration is currently appealing that decision.
The Trump Administration also appealed Judge Boasberg’s underlying injunction, arguing the D.C. federal court lacked jurisdiction. The Supreme Court agreed, and vacated Judge Boasberg’s injunctions, holding that challenges to removal under the Alien Enemies Act, “must be brought in habeas,” and that for “habeas petitions,” “jurisdiction lies in only one district: the district of confinement.”
But rather than leave matters there, the Supreme Court added that Alien Enemies Act “detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
After the Supreme Court’s vacated Judge Boasberg’s injunction, the ACLU filed suit in several federal districts where various members of Tren de Aragua were detained, including the A.A.R.P. and W.M.M. habeas case filed on Wednesday in the Northern District of Texas. On Thursday, after the Trump Administration agreed it would not remove A.A.R.P. or W.M.M. until the conclusion of their habeas proceedings, Judge James Hendrix, a Trump appointee, denied the ACLU’s Motion for a Temporary Restraining order, but reserved decision on whether to certify a class action.
On Friday, the ACLU filed a second emergency TRO and an emergency motion for a status conference. Judge Hendrix would later enter an order detailing the sequence of events, noting that at 12:34 a.m. Friday, A.A.R.P. and W.M.M. filed a second motion for an emergency temporary restraining order, followed at 12:48:55 p.m. with a motion for an emergency status conference. Then, at 3:02 p.m., the ACLU filed a notice of appeal, attempting to appeal from the Court’s denial of its first motion for a temporary restraining order, as well as the supposed “constructive” denial of class certification and the second TRO motion.
Thereafter, Judge Hendrix would deny the ACLU’s motions because, by appealing to the Fifth Circuit, the district court was divested of jurisdiction to consider the motions. Judge Hendrix added that he “was working with utmost diligence to resolve these important and complicated issues as quickly as possible” and before the appeal was taken, had planned to issue a decision by no later than noon, on Saturday, April 19.
In addition to appealing to the Fifth Circuit, the ACLU also filed the application summarized above with the Supreme Court. And then, without waiting for the Fifth Circuit to rule, the Supreme Court shortly after midnight directed the government “not to remove any member of the putative class of detainees from the United States until further order of this Court.” The order noted that a dissent by Justice Alito, joined by Justice Thomas, would follow.
Late Saturday, that dissent hit, with Justice Alito ticking off seven problems with the Supreme Court’s decision, most significantly the high court’s lack of jurisdiction. While Justice Alito framed the concern more collegially, saying “[i]t is not clear that the Court had jurisdiction,” there was no basis for the high court to exercise jurisdiction because the district court had not yet entered a decision on class certification or on the motion for a second temporary restraining order.
In fact, simultaneously with the Supreme Court entering its order precluding any removals under the proclamation, the Fifth Circuit dismissed the ACLU’s appeal as premature, stressing “[a] court of appeals sits as a court of review, not of first view.” “That principle dictates our ruling today,” the Fifth Circuit explained, adding that while “Petitioners insist that they tried to proceed before the district court in the first instance, and that the district court simply “refus[ed] to act,” the ACLU “gave the court only 42 minutes to act — and did not give Respondents an opportunity to respond.”
Like the Fifth Circuit, the Supreme Court sits as a court of review, other than in limited circumstances not applicable here. Yet, seven justices ignored their limited jurisdiction and entered the order barring removals of illegal aliens under the proclamation. The Supreme Court’s order was equally troubling because the high court provided a remedy to a non-existent class.
Or as Justice Alito summed it up: “[L]iterally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order.”
It isn’t difficult to surmise why seven of the justices acquiesced to the demands of the ACLU: They watched the Trump Administration outrun an injunction in the earlier case pending before Judge Boasberg and they likely wanted to ensure there was no repeat.
But the Supreme Court is not an almighty righter of wrongs — real or perceived — as Marbury v. Madison taught. While best known for establishing the principle of judicial review, the Supreme Court in Marbury also recognized the limits of its power. In that landmark case, the Supreme Court declared that Secretary of State James Madison had illegally refused to deliver William Marbury his judicial commission. But the Supreme Court then refused to provide Marbury a remedy because he had filed suit against Secretary Madison in the Supreme Court and under the Constitution, the Supreme Court lacked original jurisdiction to resolve the case.
The irony here cannot be overstated: For three months, Trump’s critics have been denouncing the president for criticizing the courts, who under Marbury are charged with declaring what the law is. And yet, the Supreme Court just ignored the same-said precedent to safeguard illegal alien gang members.
Saturday’s intervention also contrasts sharply with the Supreme Court’s more tentative approach to appeals in which President Trump sought to challenge the lower courts’ blatant interference in his Article II authority — and in those cases, the Supreme Court’s appellate jurisdiction is clear.
The Supreme Court’s double standard suggests it is not prudence dictating the outcome. It is also not the Constitution, for if it were, the justices would check the lower courts more quickly, while restraining their own impulses in cases like this where they lack jurisdiction.
We will soon know whether the Supreme Court has recognized the huge misstep it made over the weekend, for the Trump Administration has since filed a response elaborating on the many reasons the ACLU’s application should be denied. Conversely, the ACLU has requested the Supreme Court leave in place the order barring removals under the presidential proclamation and further asked the justices to elaborating on the type of notice the Trump Administration must provide before removing illegal aliens under the Alien Enemies Act. However, anything other than a silent denial of the ACLUs application would only serve to further undermine the Supreme Court’s standing — for issuing an advisory opinion is equally beyond the high court’s jurisdiction.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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