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Background: FILE – The Supreme Court of the United States is seen in Washington, March 26, 2024 (AP Photo/Amanda Andrade-Rhoades, File). Inset: UNITED STATES – MARCH 4: President Donald Trump arrives to deliver his address to a joint session of Congress in the House Chamber of the U.S. Capitol on Tuesday, March 4, 2025 (Tom Williams/CQ Roll Call via AP Images).
President Donald Trump has taken his contentious court battle over mass deportations of alleged international gang members to the Supreme Court, asking the justices to side with a dissenting Trump-appointed circuit court judge and immediately lift a lower court’s block on those deportations.
As Law&Crime has previously reported, the Trump administration invoked a rarely-used wartime law, the Alien Enemies Act (AEA) of 1789, to justify mass deportations of Trump-designated members of a Venezuelan gang. The law, which has not been used since World War II, has previously been understood to apply only during an actual war with another country. In the executive order underlying the litigation, Trump called for the removal of “all Venezuelan citizens 14 years of age or older who are members” of Tren de Aragua (TdA), designated as a foreign terrorist organization in January.
U.S. District Judge James Boasberg, a Barack Obama appointee, has been steadfast in his repeated rulings blocking the deportations, despite the administration’s apparent flouting of that order. A three-judge panel for the U.S. Circuit Court for the District of Columbia on Wednesday upheld Boasberg’s order.
The Trump administration, led by Acting Solicitor General Sarah Harris, filed its brief to the nation’s highest court on Friday, seeking an order vacating Boasberg’s directives and “an immediate administrative stay” of the order pending the Supreme Court’s decision.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country — the President, through Article II, or the Judiciary, through TROs,” the brief says in its opening paragraphs. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice.”
The judges apparently felt, according to the brief, that the Trump administration may indeed be entitled to a stay, as the block on deportations causes its own type of damage.
“That majority further agreed that the government faces ‘irretrievable injury’ because the district court’s orders enjoining further removals ‘risk “scuttling delicate international negotiations”‘ during the critical juncture when the orders are in effect,” the filing says. “Yet a different majority of the Court nonetheless voted to deny relief.”
U.S. Circuit Judges Patricia Millett, an Obama appointee, and Karen L. Henderson, a George H.W. Bush appointee, wrote concurrences, forming the majority. U.S. Circuit Judge Justin R. Walker, who was appointed by Trump, penned a dissent.
The Supreme Court, Trump’s lawyers argue in Friday’s brief, must step in.
“That decision cries out for this Court’s intervention,” the brief says, referring to the circuit court’s Wednesday decision.
An attack on the plaintiffs’ reasoning follows (citations omitted):
Most fundamentally, respondents cannot obtain relief because they brought the wrong claims in the wrong court. They style their claims as exclusively arising under the Administrative Procedure Act (APA). But this Court has held that detentions and removals under the Alien Enemies Act are so bound up with critical national-security judgments that they are barely amenable to judicial review at all. Instead, aliens subject to the AEA can obtain only limited judicial review through habeas. Here, however, respondents not only abandoned their claims for habeas relief below, but also filed this suit in the District of Columbia — not the district of their confinement (the Southern District of Texas). Dismissal should have followed on this basis alone. Yet no majority of the D.C. Circuit resolved that question. Judge Walker’s dissent rightly recognized that AEA plaintiffs must seek habeas. Judge Millett’s concurrence incorrectly blessed APA claims. But Judge Henderson’s concurrence — the deciding vote — inexplicably “assume[d]” jurisdiction, then refused to decide whether respondents could bring APA claims.
In other words, the plaintiffs should have filed a habeas claim, which is designed to make the government justify a person’s detention — in Texas, instead of filing a lawsuit in the District of Columbia under the Administrative Procedure Act (APA), the filing says.
In making its case that the matter should proceed as a habeas proceeding, the brief favorably contrasts Walker’s dissent to the writings of his circuit court colleagues.
From the brief:
Indeed, no majority of D.C. Circuit panel rejected the habeas argument. Only Judge Millett concluded that respondents’ “claims are not habeas claims and do not sound in habeas.” By contrast, Judge Walker, in dissent, opined that respondents’ claims sound in habeas and must be brought in Texas. But Judge Henderson — the deciding vote — merely “[a]ssum[ed] habeas relief is no longer sought,” then “assume[d]” that respondents’ APA claims “constitute claims they can assert thereunder.” That assumes away the decisive issue: the AEA does not let respondents refashion habeas claims into APA claims. Judge Henderson ducked that question, portraying the government as having “forfeited” this argument by raising it only in cursory fashion on a single page. That is untrue. The government reiterated across pages of its briefing that respondents’ claims sound in habeas. By sidestepping this key problem, the court of appeals left the government subject to an injunction that a majority of the panel did not even determine to be jurisdictionally proper.
The brief further criticizes the circuit court for “improperly us[ing] class certification to effectively impose a backdoor nationwide injunction against the Proclamation,” and addresses each of the judges’ written opinions in turn.
“When it is easier to certify classes of designated foreign terrorists than a garden-variety class action over defective products, something has gone seriously awry,” the filing says (citations omitted). “Yet no majority of the D.C. Circuit passed on the question. Judge Walker found it unnecessary after concluding respondents’ claims belong in habeas proceedings in Texas. Judge Millett opined that a ‘swift class action’ is necessary to preserve these aliens’ rights. But Judge Henderson’s tie-breaking concurrence declined to ‘pass on the class action “fit” of the plaintiffs’ claims.””
The Trump brief goes on to restate its well-documented complaint that judges, particularly as of late, have improperly used temporary restraining orders to constrain the president’s agenda.
“Only this Court can stop rule-by-TRO from further upending the separation of powers — the sooner, the better,” the brief says.
The filing continues (citations omitted):
Here, the district court’s orders have rebuffed the President’s judgments as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations. More broadly, rule-by-TRO has become so commonplace among district courts that the Executive Branch’s basic functions are in peril. In the two months since Inauguration Day, district courts have issued more than 40 injunctions or TROs against the Executive Branch. Whereas “district courts issued 14 universal injunctions against the federal government through the first three years of President Biden’s term,” they issued “15 universal injunctions (or temporary restraining orders) against the current Administration in February 2025 alone.” The Framers prized “[e]nergy in the executive” and “[d]ecision, activity, secrecy, and dispatch” as paramount qualities for “good government,” — not the energetic dispatch of injunctions to restrain the President from discharging his paramount duties to the Nation.
The brief also reiterates the Trump administration’s prior stance that Boasberg’s order — given orally from the bench and followed by a written order — was not enforceable.
Despite Boasberg’s in-court statement that “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States,” including by “turning around a plane,” the written order that followed did not make such a demand.
“The court’s written order did not direct the government to turn around planes,” the brief says. “The court’s order limits removal only under the AEA; it does not affect the President’s authority under the Constitution or under other federal statutes.”
In its closing paragraphs, the brief takes a parting shot at Boasberg’s orders — and implies that violence at TdA’s behest may be soon coming.
“The district court’s flawed orders threaten the government’s sensitive negotiations with foreign powers,” the brief says. “And as long as the orders remain in force, the United States is unable to rely on the Proclamation to remove dangerous affiliates with a foreign terrorist organization — even if the United States receives indications that particular TdA members are about to take destabilizing or infiltrating actions.”
Boasberg has found himself targeted by Trump supporters over a series of rulings against the government and concomitant dressings-down of government lawyers over their legal moves in the case — to the point that all the controversy appears to have spilled over into another high-profile case against the Trump administration he is overseeing.
Read the Trump administration’s brief here.
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