THE SUPREME COURT EMERGENCY OR “SHADOW” DOCKET IS IN HIGH GEAR
INTRODUCTION
President Trump’s agenda to address the excesses of the Biden administration on crime, immigration, DEI, and “education” has led to an unprecedented slate of US District Court orders enjoining actions of the Executive that, in large part, are overbroad, arbitrary, and obviously crafted to stall this agenda. The Judiciary is not a political branch—this means that it is not accountable to the people—and where overreach occurs, it is difficult to address. The so-called “Shadow Docket” of the United States Supreme Court is a potential check on such overreach and a vital part of its role carved out since Marbury v. Madison. The judiciary has a role to “say what the law is,” and in many respects it is this Emergency Docket that considers cases that arise from injunctions issued in lower courts that involve serious national issues, which, if not resolved on an expedited basis, will cause irreparable harm to one of the parties to the dispute. The number of cases that are now pending and presented to one or more Justices for consideration are historic in number and will challenge the ability of the Court to handle its certiorari docket in a timely fashion. The lawfare waged against Trump’s aggressive agenda is in many respects one waged with the cooperation of numerous specially selected US District Courts, in what is known as forum shopping, that have lost the true focus of their role and have allowed politics and remorse over Trump’s election to cloud judgment and lose sight of his legitimate Article II Executive authority. Last week saw many of these rulings—issued on an expedited basis, without oral argument, and unsigned. Here follows a review of the most significant Orders of the past week.
TRUMP V. JGG
I take a victory lap on this ruling, which I predicted, having reviewed many of the Article II rulings of the Court in recent years. Previous editions of this Blog establish the underpinnings of the Alien Enemies Act and its purposes. The government removed members of Tren de Aragua, proclaimed by the President to be the proxies of a foreign government, namely Venezuela, seeking to utilize these criminal agents to destabilize our economy and infrastructure through various means. The Court considered the Government’s appeal of Orders from the United States Court of Appeals for the District of Columbia Circuit enjoining the use of the Act by second-guessing the Executive Proclamation and substituting their judgment for the President and the Secretary of State. I predicted that, in line with cases having considered the Act, judicial review is in fact very limited and that there should be deference to the political branch—the Executive—on the determinations and predictions that comprise a Proclamation. This fact was clear, but Judge Boasberg and the Appeals panel simply ignored these basic tenets to invalidate the use of the still viable Act in declaring a “predatory incursion.” The Court’s issuance of this Order outside the normal docket procedures was necessary to address an emergency issue of both substantive law and due process and was important to guide the parties going forward. The full opinion can be found here. The gist is as follows:
“The detainees seek equitable relief against the implementation of the Proclamation and against their removal under the AEA. They challenge the Government’s interpretation of the Act and assert that they do not fall within the category of removable alien enemies. But we do not reach those arguments. Challenges to removal under the AEA, a statute that largely precludes judicial review, Ludecke v. Watkins, 335 U. S. 160, 163−164, (1948), must be brought in habeas. holding that habeas was the only cause of action available to challenge deportation under immigration statutes that “precluded judicial intervention” beyond what was necessary to vindicate due process rights. Regardless of whether the detainees formally request release from confinement, because their claims for relief necessarily imply the invalidity of their confinement and removal under the AEA, their claims fall within the “core” of the writ of habeas corpus and thus must be brought in habeas.
The detainees also sought equitable relief against summary removal. Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to questions of interpretation and constitutionality of the Act as well as whether he or she ‘is in fact an alien enemy fourteen years of age or older.’ Under the Proclamation, the term ‘alien enemy’ is defined to include all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States. The detainees’ rights against summary removal, however, are not currently in dispute. The Government expressly agrees that TdA members subject to removal under the Alien Enemies Act get judicial review. It is well established that the Fifth Amendment entitles aliens to due process of law in the context of removal proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). So, the detainees are entitled to notice and opportunity to be heard appropriate to the nature of the case. More specifically, in this context, AEA 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.”
The use of the AEA and the limited judicial review that follows its implementation was left in place, and the government’s argument that the relief sought for all detainees must be made by habeas corpus in the district in which they are held was ALWAYS urged but ignored by the District Court and the Appellate Court. Neither had jurisdiction. The Supreme Court pushed back on the ACLU’s forum shopping and abandonment of its habeas relief in favor of an avenue that was legally improper. Going forward, the Administration MUST provide notice and that level of due process commensurate to the issue at hand. I suggest the court’s inquiries will be limited and consistent with the policies and procedures set forth in the Alien Enemies Act. The President can certainly proclaim who the enemy is and whether there has been a predatory incursion.
OFFICE OF PERSONNEL MANAGEMENT V. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Not surprisingly, and on a slender reed of “standing,” six agencies sued to block the termination of, and to compel the rehire of, 16,000 federal probationary employees. This decision by the Administration was part of the election promise to streamline the federal government and to reduce the effects of the administrative state. The Biden administration hired hundreds of thousands of new employees to feed a system that most American voters see as a needless intrusion upon the separation of powers as well as on reserved state powers. The lawfare and the forum shopping led to a filing in the Northern District of California, and the court issued a vast injunction preventing the executive from firing employees who were still in a probationary status. The government’s brief set forth the frustration experienced by an Executive branch that has significant sway over the federal workforce and policy:
“Declaring open season on challenges to federal personnel management is especially unsound because Congress has created an entirely different framework for resolving legal challenges to the terminations of federal employees. As this Court has held, challenges to terminations of federal employees must proceed, if at all, under the reticulated process Congress set out in the Civil Service Reform Act of 1978 (CSRA). Allowing strangers to the federal-employment relationship to head straight to district court and raise claims that the affected federal employees themselves cannot raise would upend that entire process. This Court should not allow a single district court to erase Congress’s handiwork and seize control over reviewing federal personnel decisions—much less to do so by vastly exceeding the limits on the scope of its equitable authority and ordering reinstatements en masse. This Court has recognized that the judicially compelled reinstatement of even a single government employee represents a substantial intrusion on the Executive. This Court has required a heightened showing before permitting that remedy so as to preserve the Executive’s traditional “latitude in the dispatch of its own internal affairs.”
The Supreme Court agreed; the suing parties didn’t even have standing, and the District Court vastly exceeded its authority on a basic issue that it should have considered. It didn’t because to do so would get in the way of its political agenda to frustrate the legitimate purpose of reducing a workforce that has little to no benefit but costs billions to maintain. The Court said essentially, “Never mind”:
“The March 13, 2025 preliminary injunction entered by the United States District Court for the Northern District of California, case No. 3:25-cv-1780, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. The District Court’s injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case. But under established law, those allegations are presently insufficient to support the organizations’ standing. See, e.g., Clapper v. Amnesty Int’l USA, 568 U. S. 398 (2013).”
The terminations will stand, and based upon this guidance, the case has little chance of success in going forward to the Ninth Circuit—the plaintiffs have no standing, and their remedy is elsewhere. Again, politics swayed what should have been a routine dismissal by the District Court.
NOEM V. ABREGO-GARCIA
This case was filed as an emergency application by the Administration after a Maryland U.S. District Judge ordered the Administration to facilitate the release of Mr. Abrego-Garcia, who had been removed to the facility in El Salvador. The Administration’s brief in relevant part set the stage for why ultimately the Supreme Court issued a hybrid decision that in the end will most probably not bring Mr. Abrego-Garcia back to the United States. It was contended that his removal was “in error” since he was the subject of an order in 2019 blocking his removal on the basis that he had been the victim of gang violence in El Salvador and would be in danger if he was removed. The evidence of his gang affiliation was disputed and still is. The Government contended and still contends that he was a member of MS-13, and it is unclear whether this 2019 Order is final and cannot be contested by the Government or reopened. Government counsel at the recent injunction hearing essentially conceded the issue that he was removed as the result of “administrative error.” This DOJ attorney was placed on leave, and another counsel will handle the rehearing order by the Supreme Court. The full opinion can be found here. The brief of the United States argued as follows in relevant part:
“The district court in this case ordered the United States ‘to facilitate and effectuate the return of Plaintiff Armando Abrego Garcia to the United States.’ There can be no question about what ‘effectuating’ Abrego Garcia’s ‘return’ means: It means that the government must ‘return Abrego Garcia to the United States.’ The court’s order expressly ‘DIRECTS Defendants to return Abrego Garcia to the United States’ and ‘orders that Defendants return Abrego Garcia to the United States’ by 11:59 PM last night. That order thus requires the United States to successfully persuade or compel the Government of El Salvador to release a member of a designated foreign terrorist organization who is on foreign soil under foreign control—and to do so by the district court’s impossible deadline. Yet respondents now focus entirely on the ‘facilitating’ while ignoring the ‘effectuating’ and ‘return.’ They do not defend the requirement that ‘Defendants return Abrego Garcia to the United States,’ perhaps because respondents below disclaimed being able to seek such relief as contrary to El Salvador’s sovereignty, and rightly so: Abrego Garcia is a citizen of El Salvador being detained in El Salvador by the Government of El Salvador. To demand Abrego Garcia’s return is thus to demand that a foreign nation release one of its own citizens from one of its own detention centers and return him to the United States. But, as respondents ‘admitted’ below, the district court ‘has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.’ Even worse, ordering Abrego Garcia’s return offends the separation of powers, which forbids one branch from dictating to another how that branch should exercise its core and exclusive powers. Congress cannot order a court to enter a particular judgment, because Article III vests the ‘judicial Power’ in the Judiciary alone. U.S. Const. Art. III, § 1; see Patchak v. Zinke, 583 U.S. 244, 250 (2018) (Congress cannot enact a statute that says, ‘In Smith v. Jones, Smith wins’). Nor can courts order Congress to pass particular bills, because Article I vests ‘legislative Powers’ in Congress alone. U.S. Const. Art. I, § 1; see Franklin v. Massachusetts, 505 U.S. 788, 827-829 (1992) (Scalia, J., concurring in part and concurring in the judgment). So too here, courts cannot order the Executive to conduct the country’s foreign relations in a particular way, because under Article II, ‘the transaction of business with foreign nations is executive altogether.’ Zivotofsky v. Kerry, 576 U.S. 1, 39 (2015) (Thomas, J., concurring in the judgment in part and dissenting in part) (quoting Thomas Jefferson, Opinion on the Powers of the Senate (Apr. 24, 1790), in 5 Writings of Thomas Jefferson 161 (Paul Leicester Ford ed., 1895)); see, e.g., id. at 32 (majority opinion) (holding that the power ‘to control recognition determinations’ of foreign countries is an ‘exclusive power of the President’); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (observing that foreign policy decisions are ‘of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry’)”
The Supreme Court remanded the case back to the District Court but took steps to separate “facilitate” from “effectuate“ and ordered the District Court to clarify its Order. The Administration must be prepared to establish how it sidestepped a final order issued in 2019 protecting the plaintiff from removal and how it should be able to claim “foreign affairs” exclusive authority when it alone brought Abrego-Garcia to El Salvador and then imposed that country’s sovereignty on the “exclusivity” argument. On the other hand, the Supreme Court seems to understand that to “effectuate” his return means that the foreign affairs authority of the Executive IS exclusive, regardless of the back story, and that the Court may at this point be powerless to order his actual return—that is, to order the Executive to negotiate the return of a foreign national who is a citizen of the country he currently is in. The hearing on remand will be closely followed. The Administration must get this right. This case could be a billboard case for 2028 as well as the midterms. There is no rush in cases like this wherein there is a question regarding the subject’s affiliation with a designated terrorist organization. This contrasts with the Tren De Aragua removals, wherein active criminal agents were removed summarily under a different statute.
CONCLUSION
The number of injunctions issued against the administration is staggering. In many instances nationwide injunctions have been issued by U.S. District Courts sitting in one District in, say, California that bind the Administration in ALL decisions nationwide. The House has apparently taken steps to stop this with legislation, and it remains to be seen if the votes exist in the Senate to get it to the President’s desk. Both parties have used these nationwide injunction procedures, which are controversial, and it would seem there should be common ground if Congress can look beyond the immediate political climate and legislate for the ages. The business of the Administration has been frustrated, and the Supreme Court has been inundated with a historic number of emergency stay requests. It seems the Court will entertain many of these when the issues implicate core constitutional powers and if the Court senses judicial overreach or forum shopping, as took place in the Alien Enemies Act case. The Supreme Court will doubtless be issuing rulings both on its “Shadow Docket” and its routine docket that will define separation of powers authority for the years to come. Stay tuned.
Mike Imprevento
April 14th, 2025
