On Friday, the Supreme Court blocked the deportation of several Venezuelan nationals with alleged ties to Tren de Aragua, the violent transnational gang designated by the U.S. as a foreign terrorist organization. The case, A.A.R.P. v. Trump, involved the Trump administration’s attempt to remove the Venezuelans under the Alien Enemies Act. The Venezuelans sued to stop it.
The plaintiffs, Venezuelan migrants, asked a federal judge for an emergency order to halt their removal. The judge gave the Trump administration 24 hours to respond. Not wanting to wait, the migrants bypassed the judge and went directly to the Fifth Circuit Court of Appeals, which quickly dismissed their case. They then appealed to the Supreme Court, which not only agreed to hear it—but went even further.
In a 7–2 ruling, the Supreme Court granted the Venezuelans’ request for an emergency injunction. Normally, before a party can appeal a ruling, there has to be a ruling. Here, the District Court had not yet decided whether to issue the injunction, so there was technically nothing to appeal. That’s when the Supreme Court squinted a bit.
To get the outcome they wanted, the seven Justices treated the 24-hour response window the District Court had given the governement as a “constructive denial” of the Venezuelan’s request. Referencing the Abrego Garcia case from March where the President was criticized by some for whisking illegal aliens out of the country before a court order took effect, the Supreme Court here reasoned that giving the government 24 hours to respond allowed the administration enough time to try to do that again. (Previous thoughts on Abrego Garcia below)
So, the court decided to view the District Court’s 24 hour window as an actual ruling in favor of Trump – thereby allowing them to decide the appeal. The Court then gave the Venezuelans what they wanted and issued the injunction.
While the “constructive denial” doctrine is not entirely unprecedented, applying it to a mere 24-hour delay - especially after the administration assured the Court that no one would be deported in that time - was, at minimum, aggressive judging. But the Court didn’t stop there. It went on to treat the case as something more than the narrow request for a temporary injunction, which usually just garners an up or down vote on the one limited issue presented. The Court instead, without prompting from Plaintiffs’ attorneys’, gave the lower court specific instructions on how to reach a final decision. Then most astonishingly, the Court granted the Tren de Aragua members a direct path back to the Supreme Court for review of the final decision, bypassing normal procedures. Whatever the final decision is on the merits of this case, it is undeniable that the Supreme Court has abandoned normal procedure for this case.
Justice Alito, in dissent, noted the overreach:
The Court’s opinion ventures far beyond the question presented. It interprets a District Court’s silence as a refusal to act, overturns an appellate decision, and then remands the case with detailed instructions—without full briefing, a hearing, or a developed record.
And further:
The Court also purports to bless a path back to this Court that bypasses the traditional certiorari process. This kind of pre-commitment is both procedurally improper and institutionally reckless.
The Supreme Court’s decision in A.A.R.P. v. Trump is troubling on its own. But it becomes even more so when contrasted with a decision issued just one day earlier, in Barnes v. Felix. In Barnes, the Court declined to address a pressing national issue involving police use-of-force standards, despite its obvious importance. Instead, it chose procedural restraint over clarity, leaving law enforcement exposed. (Full analysis of Barnes case here)
So while American police officers remain in legal limbo, denied clarity (and safety) due to the Court’s restraint, the very next day in A.A.R.P. v. Trump, the Court stretched far beyond the limits of the appeal, creating what amounts to an unprecedented fast-track appeal process for the alleged Venezuelan terrorists. Justice Alito even warned that the majority may have already “silently decided” issues beyond the narrow injunction, calling that “doubly extraordinary.” In short, American police got judicial restraint. Suspected gang members got judicial activism. Two cases. One Court. Why the double standard?
At its core, the A.A.R.P. decision feels less like a principled ruling and more like institutional muscle-flexing - a turf war between the judiciary and the executive. On its face the decision is just the Court resisting an executive action it sees as infringing on a sacred value: the right to be heard. Fair enough. By why such an overreach?
Let’s be clear: this case isn’t about a U.S. citizen being denied fundamental justice or a landmark due process ruling with sweeping national implications. It’s a narrow immigration dispute involving a handful of suspected terrorists trying to delay deportation by a few days. Yes, they should have a chance to prove they’ve been misidentified or the like, but most of them can’t claim that (and won’t). For the vast majority of them, this is simply about buying a few extra days to sit in U.S. detention. And let’s be honest: this litigation isn’t being driven by the migrants at all. It’s being driven by their lawyers, for ideological or political reasons. The real question is this: why did the Court feel compelled to take what is fairly characterized as aggressive steps to help suspected terrorists stay in the country a few more days, while just one day earlier, it refused to offer even minimal guidance for the good guys on an issue putting them in danger?
Is it possible that seven Justices genuinely believe the Trump administration’s approach to Tren De Aragua in this particular case signals a sweeping threat to civil liberties on a broader basis? Maybe. Let’s hope it’s not simply that the President has rattled the Court’s institutional power base - or that the Justices were swept up in the media-fueled “constitutional crisis” narratives or swayed by pressure from self-absorbed and fervent legal activists. (Justice Alito did note the plaintiffs’ attorneys’ “stark departure” from “acceptable practice.”) Let’s also hope this isn’t about the Court positioning itself to be “on the right side of history.” Whatever the motive, let’s at least hope the Court’s opinion reflects a sincere effort to apply the law fairly and equally to keep everyone safe. But that’s far from clear.