Alito/Thomas Slam Middle Of Night Alien Enemies Act Stay: Judiciary has “an obligation to follow the law”Legal Insurrection by William A. Jacobson 4/20/2025
Judiciary appears to be cracking under the weight of Democrat lawfare: “In sum, literally 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.”The emergency stay issued just after midnight Saturday morning, April 19, by the U.S. Supreme Court over the dissent of Justices Alito and Thomas, continues to reverberate. Some of the reactions were in our post, Supreme Court Halts All Deportations Under Alien Enemies Act.
The SCOTUS conduct was bizarre by any standard – reacting to a filing made on Friday night before a holiday weekend without giving the government any chance to respond. It reminded me of one of the earliest judicial excesses in the face of the pre-planned lawfare assault on the Trump administration, when a federal judge in NY sitting on the Emergency Calendar issued an ex parte TRO at 1 a.m. on a Saturday morning effectively decapitating the Treasury Department. (Another judge partially walked back that TRO the following week.)
The conduct of numerous District Court Judges has been emotional and reactive, but you don’t expect that from the Supreme Court.
Yet it happened.
In Justice Alito’s Dissenting Opinion, joined by Justice Thomas, he excoriated the Court for this reaction. Here is the Dissent, in part:
Shortly after midnight yesterday, the Court hastily and prematurely granted unprecedented emergency relief. Proceeding under the All Writs Act, 28 U. S. C. §1651, the Court ordered “[t]he Government” not to remove a “putative class of detainees” until this Court issues a superseding order. 604 U. S. ___ (2025). Although the order does not define the “putative class,” it appears that the Court means all members of the class that the habeas petitioners sought to have certified, namely, “[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.”* Motion for Class Certification in No. 1:25–cv– 59 (ND Tex., Apr. 16, 2025), ECF Doc. 3, p. 1. And although the Court does not specify what it means by “[t]he Government,” it appears that the term is intended to embrace all the named defendants, including the President. Cf. Fed. Rule Civ. Proc. 65(d)(2).
The Court did all this even though:
• It is not clear that the Court had jurisdiction….
• It is questionable whether the applicants complied with the general obligation to seek emergency injunctive relief in the District Court before asking for such relief from an appellate court. Fed. Rules App. Proc. 8(a)(1)(A), (a)(1)(C). When the applicants requested such relief in the District Court, they insisted on a ruling within 45 minutes on Good Friday afternoon, and when the District Court did not act within 133 minutes, they filed a notice of appeal, which the District Court held deprived it of jurisdiction….
More:
https://legalinsurrection.com/2025/04/alito-thomas-slam-middle-of-night-alien-enemies-act-stay-judiciary-has-an-obligation-to-follow-the-law/
