27th March 2025
The US presidency is not getting its own way – even with Republican-nominated appeals judges
Overnight the judgment for the federal court of appeal in the deportations case was handed down – and it was a 2-1 defeat for the Trump presidency.
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The issue decided in this appeal was whether the “temporary restraining order” (TRO) – a form of interim injunction – should stay in place. This TRO, which was granted by the federal court in Washington D.C., prevents the federal government from removing alleged “enemy aliens” under the Trump proclamation of earlier this month.
In practical terms, of course, it is preventing the US government from placing currently detained Venezuelans – including those against whom there is no actual evidence – on planes to be sent to a El Salvador mega-prison under a commercial agreement between the US and El Salvador.
The TRO is not intended to be a permanent injunction – the key is the word “temporary” – but “to hold the ring” (as lawyers say) until there can be a proper hearing on the substantive case, after which it seems it can either be discharged or be converted into a firmer “preliminary” injunction.
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The US government really do not like this TRO – for it is a powerful legal weapon and it applies across all the United States at the federal level. The government wants this TRO to be somehow vacated, so that they can go back to the business of mass deportations under the Trump proclamation.
But.
The US government failed to get the judge at first instance to vacate his own order – in a sterling (and highly readable) judgment, Chief Justice Boasberg rejected the US government’s application.
The US government appealed – and you can hear the audio of the appeal hearing here.
The appeal court comprised three judges – two of whom were nominated by Republican presidents (one by Bush the other by Trump) and one nominated by a Democrat president.
And in the appeal judgment now published, the TRO was upheld by a 2-1 majority, with only the Trump-nominated judge dissenting.
And even his dissent admits that the individuals can use habeas corpus to challenge removals, but they have to do it (if they can) in the state they are being detained, if they somehow get notice.
(This is, of course, on par with saying the detainees’ access to justice is via “the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.’”)
That said, that is still a move from saying that the individuals can have no absolute access to justice at all, which was the US government’s initial view.
The majority also gave a wide-ranging ruling, going against the government on point after point, and not just going against the government on a technical narrow basis.
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And so the TRO stands – for now.
The US government may now seek to appeal to the Supreme Court – where there is also a majority of Republican-nominated judges.
But if the US government cannot win over the more moderate Republican judge at the court of appeal, it is an open question whether they will win over Chief Justice Roberts and Justice Barrett who, although conservatives, are independently minded and less prone to slavishly follow a party line in such political cases than their conservative colleagues.
Had the court of appeal gone the other way, with a 1-2 majority against the TRO that may have indicated that the detainee plaintiffs would have a harder time at the Supreme Court.
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So this is good news for liberals – for now.
There has been a win in another court skirmish.
But a win in a skirmish is not a win in a battle, and still less a win in a war.
The broader, longer battles – and the war itself – may still be lost.
The US government may eventually get its legal act together – rather than the amateur hour antics they have exhibited so far – and they have at least another four years to do so.
But.
If the tide was to turn, this appeal win also would be an early sign.
What the appeals win signifies beyond doubt is that the US government is not getting its own way – and that its improvised “shock and awe” “move fast and break things” tactics can become undone.
Even if the Supreme Court side with the dissenting judge here (and somehow also insist that detainees can challenge their removals via “the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’”) the losses so far for the government at first instance and on appeal on the TRO issue means they have not (and will not) have an easy legal time with other such measures.
The US government will not be happy today.
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‘This must be Thursday,’ said Arthur to himself, sinking low. ‘I never could get the hang of Thursdays.’
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For everyone who thanks you for this (and we do!) it would be *ace* if you could just reply saying “Glad to be of service”.
Of service, glad to be, replied Yoda of Kent.
Nice Hitchhikers Guide to the Galaxy reference.
Another fantastic post. You have been the go-to read on these cases. Questions: what is the jurisprudential ideological dimension that makes Roberts and Coney Barrett swing voters on the Supreme Court? Is it simply an independent streak? Or is there actually a judicial ideology that makes them more ‘swing voters’ than Kavanaugh or Gorsuch? It’s clear that Alito and Thomas have extreme views on exec authority, at least for this president.
“what is the jurisprudential ideological dimension that makes Roberts and Coney Barrett swing voters on the Supreme Court?”
My view from reading their judgments, fwiw, is that although both conservative, both tend to reason outwards from the constitution, applying conservative principles. The others – especially Thomas and Alito – seem to me to reason backwards from the conclusions they want – with motivated reasoning. Roberts is also a minimalist – he dreally oes not like to decide more than is necessary to dispose of a case. This does not make them saints – and some of their decisions are very illiberal – but it means they are not “in the bag” for Trump supporters.
This is not just a conservative thing though – liberals can also use motivated reasoning.
> It’s clear that Alito and Thomas have extreme views on exec authority, at least for this president.
They both endorse the (or a) unitary executive theory that Congress and the judicial branch should show nearly absolute deference to the executive (although I wonder whether a Democrat executive would enjoy the same deference).
I know it is pedantic, but isn’t it “at least 3 years 10 months more” of this? Personally I do actually take comfort that a clock is ticking down and we have already passed 2 of the 48 months….
I am sad that the comfort you gain on one hand is offset by the discomfort your pedantry must bring to you.
The first ten thousand seconds were the worst, the next ten thousand, they were the worst too. After that I went into a bit of a decline.
“And even his dissent admits that the individuals can use habeas corpus to challenge removals, but they have to do it (if they can) in the state they are being detained, if they somehow get notice.”
This is not good news. It should have been unanimous. It is a ridiculous proposition that habeus is the correct and indeed only way to challenge a removal. The case law doesn’t support this and habeus is a challenge to detention, not deportation. None of the plaintiffs challenge their detention and the TRO does not prevent detention. It’s absurd.
Sorry, by the way, for misspelling habeas twice.
What I hate about this is that now he gets to rant and rave about how he should be allowed to fire all the federal court judges that he didn’t personally appoint so he can appoint their replacements. If he has not already said so, we will not be waiting long.
The rule of law is hanging by a thread. As I’ve said before, even if SCOTUS should go against him, that will not spell the end of this dangerous behaviour. He will likely defy them.
Douglas Adams prescient as ever. You brightened the morning of a fellow ‘Brummie’.
You are doing sterling service with this series of explainers, David.
This temporary restraining order might at least stop more deportation flights leaving for a while, at least until the affected individuals have an opportunity to challenge their seemingly arbitrary classification as “enemy aliens” on the basis of little to no evidence, but as far as I can see it does little to help the people already detained in the Salvadorian hellhole from which it seems no one is released. “Oopsie” indeed. The US government does seem to like these judicial no-spheres, like Guantanamo.
It is disappointing to see an appeals judge relying on a theoretical right to seek judicial review from a local court, when any such right may be impossible to exercise and so in practice illusory. Just like the wonderful theoretical rights under the Soviet constitution. Long live Comrade Stalin.
For the time being I would suggest anyone who is not a US citizen should think very carefully before voluntarily travelling to the US. Some quite horrific stories of people being detained at the border or seized off the streets by plainclothes immigration officers.
“It is disappointing to see an appeals judge relying on a theoretical right to seek judicial review from a local court, when any such right may be impossible to exercise and so in practice illusory.”
Walker seems fixated on the original writ of habeas corpus which has been abandoned. It’s as though the plaintiffs are not entitled to change their legal position but the government may.
In examining the public interest, he makes the prospect of irreparable harm to sensitive diplomatic negotiations paramount, as though you couldn’t just stick someone on a plane to Venezuela, where they actually come from.
Indeed, they might choose to voluntary return to Venezuela rather than end up in prison in some third country with which they have no relationship. The reasoning is tortuous.
So essentially, the message is “Don’t panic.”
This makes the US extradition right over UK citizens look extremely unwise and unjustifiable. After all, the Court of Appeal said Rwanda was not safe enough to send immigrants to. They’d hardly support allowing UK citizens to be extradited to a country whose Government may send them to a Salvadorean “mega prison” without warning would they ?
Millet’s concurrence is masterful.
Potential deportees are going to find it harder to find anyone to act for them if Trump’s latest actions against law firms are anything to go by, what with the Attorney General directed “to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.”
https://www.whitehouse.gov/presidential-actions/2025/03/preventing-abuses-of-the-legal-system-and-the-federal-court/
https://edition.cnn.com/2025/03/27/politics/law-firms-trump-attacks/index.html
Sorry, those two urls got squashed together. They are the EO:
https://www.whitehouse.gov/presidential-actions/2025/03/preventing-abuses-of-the-legal-system-and-the-federal-court/
and a commentary by CNN on the chilling effect:
https://edition.cnn.com/2025/03/27/politics/law-firms-trump-attacks/index.html
The memorandum is hogwash. Pure political posturing.
“To address these concerns, I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.”
Any such action deemed frivolous or vexatious would be thrown out. An action which is not thrown out cannot be deemed frivolous or vexatious. “Unreasonable” doesn’t even make sense, and the fact that all of these terms are joined by “and” means they would all have to be true. It’s idiotic in the extreme, but what else would we expect? The AG can pursue whatever sanctions he likes if he wants to be an idiot. Law firms will not be deterred by this.
They are too savvy to fall for the memo. But watch their bowels turn to water when Musk’s thugs, armed and dressed up as U.S. marshals, march into their offices and slap on the cable-ties.
(I don’t know what pronouns Pam Bondi prefers, but I can guess.)