Not So Fast…

 Gettin’ down to the nut cuttin’:

That may be the most important point here: Even if courts buy, or at least defer to, the transparently cynical argument by the Trump administration that what TdA is doing constitutes an “invasion or predatory incursion” by “a foreign nation or government,” the U.S. government still bears the burden of persuading courts that individual detainees are members of TdA. That’s going to require case-by-case judicial review; and, as ended up happening in the Guantánamo cases, the government is going to lose many of those cases (perhaps even more of these). All of this goes to why, the way the proclamation is written, it is hard to see how the Alien Enemy Act becomes a meaningful tool for removing large numbers of individuals from the United States. Even if the statute applies to TdA (it doesn’t), it contemplates a meaningful role for the courts in deciding whether the statute applies to individual detainees—a role courts have played during prior wars even when there was no question that the statute had been properly invoked in the first place.

There is also the question of venue. Suit was brought in D.C., but the detainees were (are?) in Texas. That may lead to challenges that require suit(s) be brought in Texas.

Candidly, I’m not sure that any of those arguments are going to prevail, so it’s entirely possible that these cases end up in Texas (and, thus, the Fifth Circuit). If anything, though, that’s why the membership issue is so significant. Even if the Fifth Circuit might be more sympathetic to the invasion/predatory incursion argument than any other court in the country (including the Supreme Court), the government will still bear the burden of establishing each individual detainee’s membership in TdA in places those detainees are held (e.g., a Bronx detainee in the Southern District of New York). And if the Guantánamo cases teach any lesson on this very specific point, it’s that having individual cases turn on such a showing can bog things down in a hurry.

The keystone here is that Trump wants all the detainees treated as a group for purposes of judicial review (which he doesn’t want in the first place), but the law requires they be reviewed individually, which means as many cases as there are detainees. DOJ has already filed for emergency stays of the D.C. court orders . That could easily lead to an emergency application to the Supremes by week’s end.  That doesn’t mean the action against these detainees will be as swiftly decided. The opposite is, in fact, likely.

The mills of the law turn slowly, too; and they also turn exceeding fine.