Supreme Court overrules Temporary Restraining Order Prohibiting Use of Alien Enemies Act

 

 

SCOTUS overrules Temporary Restraining Order of District of Columbia Trial Court

 

In our prior post we discussed the actual text of the Alien Enemies Act (1798) (here:  https://appellatespectator.blogspot.com/2025/04/analysis-alien-enemies-act-permits.html) and how the text differs from you may have been told about it by journalists who likely never even skimmed the text.  Today we will discuss the recent ruling vacating the temporary restraining order by one Federal trial court judge that sought to control the actions of the executive branch.

 

Holding

 

The per curium opinion in Trump v. J.C.G.G. (April 7, 2025, No. 24A931) vacated the TRO granted by trial judge Boasberg, holding the relief sought was in fact "habeas corpus" (Latin: "bring forth the body") relief:

 

We grant the application and vacate the TROs. 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 which largely “ ‘preclude[s] judicial review,’ ” Ludecke v. Watkins, 335 U. S. 160, 163−164, (1948), must be brought in habeas. Cf. Heikkila v. Barber, 345 U. S. 229, 234−235 (1953) (holding that habeas was the only cause of action available to challenge deportation under immigration statutes that “preclud[ed] judicial intervention” beyond what was necessary to vindicate due process rights). (Id., p. 2.)

 

Such relief should be requested in the District Court where the person(s) may currently be "confined:"

And “immediate physical release [is not] the only remedy under the federal writ of habeas corpus.” Peyton v. Rowe, 391 U. S. 54, 67 (1968); see, e.g., Nance, 597 U. S., at 167 (explaining that a capital prisoner may seek “to overturn his death sentence” in habeas by “analog[y]” to seeking release); In re Bonner, 151 U. S. 242, 254, 259 (1894). For “core habeas petitions,” “jurisdiction lies in only one district: the district of confinement.” Rumsfeld v. Padilla, 542 U. S. 426, 443 (2004). The detainees are confined in Texas, so venue is improper in the District of Columbia. (Id.)

Due Process

 

The majority found those being removed under the Alien Enemies Act must be afforded due process, not only because there is at least some, even if very "limited," judicial review under the Act but also because the Fifth Amendment requires such:

 

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.”  The detainees’ rights against summary removal, however, are not currently in dispute. The Government expressly agrees. . . . “It is well established that the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings. 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 as will allow them to actually seek habeas relief in the proper venue before such removal occurs. (Id., p. 3; citations omitted.)

 

The dissent

 

The dissenting four justices wrote somewhat longer dissents, especially when considered in toto.  Depending on how one views their attempts to justify filing a petition in Washington, D.C. which in reality seeks habeas relief for persons in Texas, this lengthy dissent may or may not give credence to my "rule" regarding the length of a legal opinion, a rule which is often not true but is a useful starting point for discussion.  Specifically, the longer the opinion, majority or dissenting, the more poorly-reasoned it is, as it requires more words to dance around the issue than simply apply the law.

 

 

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Analysis: The Alien Enemies Act permits deportations due to foreign "incursions" and provides jurisdiction while these enemies are within the United States

 

Analysis after the Supreme Court overrules Judge Boasberg and sides with Attorney General Bondi

The United States Supreme Court has vacated an unconstitutional order from trial court judge James Boasberg barring the President of the United States and the Executive Branch from using the Alien Enemies Act (1798) to deport violent aliens, specifically, criminal gang members from Venezuela.  The latest example of gaslighting by our press, reports almost universally described this act as being a "war time" act which, as we shall see, does not comport with the actual language of the Act. The inference is that you are wrong if you support utilization of this Act because we are not currently at "war:" the gaslighting "tell" if that these supposed news stories do not quote any of the language of the Act and most likely no reporter or editor involved in the reporting has even skimmed the Act itself.

 

Briefly, the Supreme Court held it was not proper to Judge-shop and file a challenge to the use of the Alien Enemies Act in the District Court of the District of Columbia. As our prior posts discussed, a sole trial court judge in Federal Court issued a ruling attempting to direct how the executive branch conducted its core business, going so far as to order the direction of planes operated by the Executive Branch.  This was Judge Boasberg, who formerly served on the FISA Court which approved the FBI's secret spying upon this same President of the United States based upon affidavits filed under the supervision of now disgraced former FBI Director James Comey.  (Indeed, even Comey himself has admitted this entire process involved major errors.) These FISA warrants were, in turn, based on a Russia collusion hoax created by, inter alia, the law firm Perkins Coie.  Perkins Coie worked on behalf of Hillary Clinton's Presidential Campaign and paid the research firm Fusion GPS for the infamous "Steele Dossier" manufactured to show that the President was actually an agent of the Russian government.  This hoax and the subsequent Special Counsel investigation of the President were a key part of the "lawfare" campaign designed to stop the American public from electing and re-electing the President.  There is little doubt the case was filed in the DC court so it would be heard by judges of the same predispositions as Judge Boasberg.

 

The Supreme Court, as noted, put an end to this attempt at judge-shopping by ruling the case should instead have been filed in the District where the inmates were held such as, for example, in Texas. The headlines stress the Act as a "wartime" act and ignore the fact the Act applies to both declared wars and where these has been a foreign "incursion."  The text below is from the code found House.gov and key portions are highlighted for emphasis:

 

CHAPTER 3—ALIEN ENEMIES

§21. Restraint, regulation, and removal

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

As to jurisdiction, the Act provides that aliens residing in the United States are entitled to a hearing before deportation and the judiciary may order (or not order) their removal "from the United States," thus limiting this jurisdiction to those aliens within the United States:

§23. Jurisdiction of United States courts and judges

After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

 

The Act also provides such aliens may in fact have time to settle their affairs before deportation, but only if they have not been involved in an actual "hostility" or "crime:"

 

§22. Time allowed to settle affairs and depart

When an alien who becomes liable as an enemy, in the manner prescribed in section 21 of this title, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.

The Act further provides a United States Marshall may apprehend the aliens:

§24. Duties of marshals

When an alien enemy is required by the President, or by order of any court, judge, or justice, to depart and to be removed, it shall be the duty of the marshal of the district in which he shall be apprehended to provide therefor and to execute such order in person, or by his deputy or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President, or of the court, judge, or justice ordering the same, as the case may be.

So now that we have quoted each and every word of the Act, you know far more than any of the journalists of commentators in corporate media and may judge for yourself whether their characterization of the Act is biased or not.

 

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Opinion: Justice Roberts is Partially Right But Entirely Wrong in Making Comments that Invade "Legislative Independence"

 

 

A judiciary that values "judicial independence" must respect "legislative independence"

 

We are oft-told that unless either the Judicial or Executive Branches is a party to that particular lawsuit, lawmakers and Presidents and state Governors should not attempt to tell the Judicial Branch how they should rule in a specific instance.  This concept is usually called "judicial independence" and its justifications include the fact the judiciary operates as a separate and co-equal branch of government.

Justice Roberts recently criticized calls to impeach a trial court judge in Washington, D.C., i.e., District Court, James Boasberg,for, inter alia, his attempt to control the precise and detailed operations of the executive branch (including an order to turn around planes put in flight by the Executive Branch).  Indeed, this unconstitutional overreach was the subject of a recent congressional hearing. (See https://www.youtube.com/watch?v=JJ07UCK7AXk.) 

 

Justice Roberts responded to these calls for impeachment by stating the obvious, namely, that impeachment of a judge or justice is not the primary method to correct improper rulings, this being appellate review. (See  https://apnews.com/article/donald-trump-federal-judges-impeachment-29da1153a9f82106748098a6606fec39.)

 

Though Justice Roberts was correct in this respect, his comments were entirely wrong and utterly misguided in a broader sense.  Simply put, it is not proper for the Judicial Branch to tell the Legislative Branch how it may utilize the power of impeachment.  

 

This legislative power to impeach is found in Article I, Section Two, of the United States Constitution:

 

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

 

If the judiciary should not be told or pressured as to how to rule on a specific issue or case, it follows that likewise the legislature should not be lectured as to how to exercise its own power, and, in particular, how to decide whether to impeach someone.  After all, if the judiciary is a separate, independent, and co-equal branch of government, so is the legislature.

 

Indeed, if the President is impeached by the House of Representatives, then our Constitution states the Chief Justice presides over the trial in the Senate. But this does not occur if it is a judge or justice who is impeached, and the Chief Justice therefore does not preside.  This indicates that in the case of impeachment of other persons, including judicial officers, impeachment proceeds without the participation of the Chief Justice or other members of the judiciary.

 

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The Judiciary's Takeover of the Executive Branch continues: Trial Court Judge Attempts to Direct Path of Federal Aircraft

 

District Court Trial Judge Believes He Has the Same Authority as the President of the United States

 

In a recent post we discussed insidious attempts by the Federal Judiciary to act beyond their jurisdiction and to order the Executive Branch to undertake, or not undertake, very specific actions which are within the core powers of the President of the United States and the departments and agencies which "execute" his authority. Our prior post is here, which predicted the Supreme Court of the United States will need to rein in these trial courts:

 

https://appellatespectator.blogspot.com/2025/02/unconstitutional-interference-by.html.  

 

While this executive authority is often derived from specific statutes, it is ultimately derived from Article II of the United States Constitution, as our prior article discussed.  On the other hand the Judiciary's power is derived from Article III and does not include supervision of the day to day activities of the Executive Branch, or vice versa.

 

This past week this trend continued with a stunning development.  One of these unelected trial-court judges, meaning he is but one of the hundreds of United States District Court Judges, attempted to order the Executive Branch about, and, in particular, a Federal plane, to alter a flight mid-course on its way to take Venezuelan gang members to El Salvador. The ACLU sued to block the deportation of these violent thugs from Tren De Aragua, this deportation taking place under a 1798 law permitting the President of the United States to deport such aliens. (See https://www.dailymail.co.uk/news/article-14507571/trump-deportation-flights-el-salvador-terrorists.html.) 

 

The ACLU sought and received an order that the deportation, already in progress, stop and, indeed, that a plane be turned around, mid-flight.  As the Court had no legal authority whatsoever to direct the mode, speed, or direction of such a flight and the aircraft had left United States airspace, the President of the United States (who, unlike a trial court judge, does have the authority to direct the path of the aircraft) did not order the aircraft to change course.  

 

However, the trial judge does not see his obvious overreach and has demanded to know why his order to change the path and destination of the aircraft was not immediately complied-with while the plane was in mid-air.  (See https://www.cbsnews.com/news/trump-administration-ignored-order-gang-removal-flights/ .)  Dictators, it seems, do not take kindly to non-compliance.

 

We understand these trial court judges believe their power to issue "nation-wide" injunctions is unlimited and, it is rather apparent, are determined to do whatever it takes to frustrate the will of the American people was evidenced by the law election.  But this latest order is beyond extra-jurisdictional and, in fact, is dangerous: if a trial court judge may issue orders that include directions to pilots as to how to proceed, there really is no limit upon judicial "supervision" of any and all functions of the Executive Branch.

 

Indeed, in doing a search on Bing.com about this incident, the AI-generated summary stated:

 

The aircraft that sent Tren de Aragua members to El Salvador was operated by the U.S. federal judge¹. The flight carried 238 alleged members of the Venezuelan prison gang Tren de Aragua, along with 23 people affiliated with MS-13²³. U.S. Secretary of State Marco Rubio also confirmed that over 250 members of Tren de Aragua were sent to El Salvador⁴.

 

While this is obviously not true, it is interesting that it was generated at all.  Perhaps the fact the District Court judge believes he has the authority to direct Federal aircraft would logically lead to the conclusion the Judiciary, and not the Executive Branch, "operated" the plane.

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Case note - California court rules against Bakery and Puts Statute Prohibiting Discrimination Above First Amendment Rights

 

California appellate court makes plain it considers First Amendment protections inferior to state-level statutes against discrimination

 

In Civil Rights Dept. v. Cathy's Creations (March 5, 2025, F08580) the Fifth District of  California refused to properly apply precedent upholding the breadth of First Amendment.  Recall that California all but gutted the First Amendment during the three years of the pandemic, caused by the release of the COVID-19 virus by a lab in Wuhan, China (reference:  the United States Department of Energy and the Central Intelligence Agency) and, indeed, California courts did little to stop the infringement upon freedoms guaranteed by the Bill of Rights.  Nonetheless, the lack of consideration given to the First Amendment in the recent Cathy's Creations opinion is troubling.  As the Fifth District framed the issue:

 

This appeal involves a bakery’s refusal to sell a predesigned white cake, popularly sold for a variety of events, because it was intended for use at the customers’ same-sex wedding reception. The State of California, through the Civil Rights Department (the CRD), filed suit on behalf of real parties in interest Eileen and Mireya Rodriguez-Del Rio (the Rodriguez-Del Rios) when Tastries Bakery (Tastries) refused to provide them the cake for their wedding pursuant to the bakery’s policy that prohibited the sale of any preordered cake for a same-sex couple’s wedding. The case culminated in a bench trial on the CRD’s claim of discrimination under the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (UCRA)), and the free speech and free exercise affirmative defenses of defendants
Tastries, Tastries’s owner Cathy’s Creations, Inc. (Cathy’s Creations), and Cathy’s Creations’s sole shareholder Catharine Miller (Miller) (collectively defendants).2
The trial court concluded there was no violation of the UCRA because the CRD
failed to prove intentional discrimination, and concluded Miller’s referral of the
Rodriguez-Del Rios to another bakery constituted full and equal access under the UCRA.
The trial court proceeded to consider defendants’ affirmative defenses as an alternative matter, and concluded the preparation of a preordered cake by defendants always constitutes expression protected by the federal Constitution’s First Amendment when it is sold for a wedding, and, as applied here, concluded the UCRA compelled defendants to speak a message about marriage to which they objected. . . .

 

One should further recall that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (2018) 584 U.S. 617, the United States Supreme Court ruled a bakery could not be forced to make a cake it found offensive and that the Colorado state government had evidenced hostility toward the baker's religious belief when it attempted to force the baker to do so.  As Justice Kennedy succinctly stated, "[w]hen the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires."  However, the Fifth District did not apply the holding in Masterpiece so as to constrain the ability of California to fine and harass Cathy's Creations, explaining:

 

If the mere act of providing and/or delivering a predesigned product for use at a same-sex wedding conveys a message of celebration and endorsement for same-sex
marriage, a baker could potentially refuse to sell any goods or any cakes for same-sex weddings as a protected form of expression; but this would be a denial of goods and services that likely goes “beyond any protected rights of a baker who offers goods and services to the general public .…” (Masterpiece, supra, 584 U.S. at p. 632.) Expanded logically, this reasoning would extend to a whole range of routine products and services provided for a wedding or wedding reception, including those highly visible items like jewelry, makeup and hair design for the wedding party, table centerpieces, stemware and alcohol for a toast, and catering displays. This is tantamount to business establishments being “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
(Id. at p. 634.) If mere product provision to a wedding is considered expressive conduct,
then all wedding vendors could potentially claim their refusal to serve same-sex couples. . . (Id., pp. 56-57.)

 

In other words, Cathy's Creations explained that California could not and should not actually apply the First Amendment, despite the Masterpiece holding from the United States Supreme Court, because if we do then we will not be able to enforce anti-discrimination laws. But this is exactly what the First Amendment does:  puts real limits on the scope of government powers and, of course, as Masterpiece held "anti-discriminaton" laws are not exempt from the purview of the Bill of Rights.

Analysis

 

Even if one were to factually distinguish this case from the cake-baking case ruled upon by the United States Supreme Court, the discussion and holding in Cathy's Creations is troubling.  First Amendment protections permit persons to refuse to voluntarily engage in actions which require speech and that they find offensive and/or violate their religious beliefs should be of the utmost consideration in terms of any court's legal analysis.  But Justice Meehan and his two colleagues dismissed application of these crucial limits on government power because to do so would render null a state statute prohibiting discrimination.  The justification was rather slim, resting on the silly notion that though baking a cake requires care and skill (and, as I would add, a bit of love) such care and skill is not "expressive:"

Because we conclude the cake defendants refused to provide in this instance was not an expressive activity protected by the First Amendment, defendants’ free speech defense fails. A huge number of routinely produced goods in the stream of commerce are designed with attention to aesthetic details that may reflect the designer’s sense of color, balance and perspective, and while those elements might be viewed as artistic features, they are primarily applied and intended for broad appeal and profitability—not as a medium for self-expression. While a routinely produced and multi-purpose cake like the one here might be baked and decorated with skill and creativity, we cannot conclude it is inherently expressive. (Id., p. 57.)

 

In other words, the Court's analysis is fundamentally flawed because it failed to apply the analysis mandated by Masterpiece.  Instead, it made it very clear a state-mandated prescription against discrimination must take precedence over Federal protections because, well, otherwise, the state law could not be given its full intended effect.  

 

This begs the question:  when will religious freedom and freedom of speech be restored to California?  And an even better question:  why do those who favor unlimited government power seem especially keen on harassing small businesses that do not have the resources to fight back?

 

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How not to negotiate - learning from the rank idiocy of Victor Zelensky (with valuable lessons for those under 50)

 

Zelensky's arrogant, delusional, and horrific performance tells us how not to negotiate.

Ladies and Gentleman:
 
In a vist to the Oval Office, Mr. Zelensky showed palpable disrespect for the United States of America and its taxpayers, who have been its benefactor to the tune of more than $200 billion dollars (or perhaps more than $300 billion as there is little transparency here).  Indeed, he verbally ambushed the President and Vice President of the United States by his hostility and impertinence. Prior to this press conference he reportedly refused to sign an already negotiated deal for production of valuable minerals and instead wanted security guarantees that would have put two nuclear powers in direct conflict, something that not even our senile former President and his wife, Dr. Biden, would have agreed-to.

As the brilliant historian Victor Davis Hanson has written, he attempted to correct both Mr. Trump and Mr. Vance by "Ukraine-spaining" in the most aggressive manner.  Indeed, while dressed in all black Mr. Zelensky gave a masterclass in how not to negotiate.  As someone who has negotiated countless legal issues over more than 30 years, let me explain what not to do as illustrated by the “President” of Ukraine:

* Make clear your lack of gratitude for prior support
* Cross your arms and refuse to unfold them
* Unless you are Johnny Cash, a female wearing a cocktail dress, or attending a funeral, wearing all-black
* Roll your eyes in an attempt to distract someone from the excellent point they are making
* "Ukraine-splaine," as Mr. Hanson puts it, under the assumption that anyone who disagrees with you must know less
* Assume someone 20, 30, or even 40 years older than you knows nothing whatsoever
* Threaten anyone in a superior position, let alone the President and Vice President of the United States of America
* Threaten your benefactor, here, the people of the United States of America;
* Interrupt anyone you are negotiating-with;
* Refuse to acknowledge your unequal bargaining power in an attempt to act "strong"
* Misrepresent your position by, for example, pretending you are supporting "freedom" when in fact you have suspended elections and civil liberties
* Acts as if you are a peer when in fact you are appearing as a supplicant.
 
This last point is important because as a gross simplification, I have found that the younger the person in our society today, the more unrealistic and overconfident they are.
 
Other the other hand, the video clearly shows how well Mr. Trump and Mr. Vance handled themselves and that our country is no longer willing to fund endless wars with ill-defined objectives. 
 
As has oft been said in the past few months, America is back.
 
Ukraine and its deluded Zelensky, not so much.

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