🥚

 Invaluable background on this from Professor Vladeck:

Then things got messy. According to media reports, starting on Thursday, a number of non-citizens being held at the Bluebonnet detention facility in Anson, Texas (in the Northern District of Texas) were given notices of their imminent removal under the AEA (in English only), with no guidance as to how they could challenge their removal in advance. Not only did this appear to be in direct contravention of the Supreme Court’s ruling in J.G.G., but it also raised the question of whether the government was moving detainees to Bluebonnet, specifically, to get around the district court orders barring removals of individuals being held at El Valle and other facilities.

The ACLU had already filed a habeas petition on Wednesday in the Northern District of Texas on behalf of two specific (anonymous) plaintiffs and a putative class of all Bluebonnet detainees—captioned A.A.R.P. v. Trump. Judge Hendrix had already denied the ACLU’s initial motion for a TRO—based on government representations that the named plaintiffs were not in imminent threat of removal (he reserved ruling on the request for class-wide relief).

Thus, once the news of the potentially imminent AEA removals started leaking out, the ACLU did two things at once: It sought renewed emergency relief from Judge Hendrix in the A.A.R.P. case, and it went back to Chief Judge Boasberg in the J.G.G. case—which has not yet been dismissed—since that case at least for the moment includes a nationwide class of individuals subject to possible removal under the AEA. And while it waited for both district judges to rule, the ACLU sought emergency relief in A.A.R.P. from both the Fifth Circuit and the Supreme Court.

The ACLU went back to Boasberg, who said his hands were tied by the 9-0 decision in J.G.G. The judge in Texas said the appeal to the 5th Circuit and the Supremes took jurisdiction from him. So it looked like deportations were imminent.

Then, a little before 1:00 a.m., the Supreme Court stepped in. As noted above, the cryptic order specifies that “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” And it notes that (1) the government can respond to the emergency application once the Fifth Circuit rules (which it did even later in the evening—denying emergency relief); and (2) Justices Thomas and Alito dissented, with an opinion from Alito apparently forthcoming.

There were a lot of reasons for the Court not to do this (I’m sure the dissent will list them).  Professor Vladeck has three major categories, and this conclusion:

But this case arose only because of the Trump administration’s attempt to play Calvinball with detainees it’s seeking to remove under the Alien Enemy Act. The Court appears to be finally getting the message—and, in turn, handing down rulings with none of the wiggle room we saw in the J.G.G. and Abrego Garcia decisions last week. That’s a massively significant development unto itself—especially if it turns out to be more than a one-off.

Definitely a come to Jesus weekend for the Administration. I hope they bring eggs.

ADDING: The Supremes may have noticed the Administration was being too cute by half:

To sum up for those who may have missed it, the notice that the government is giving out after SCOTUS said they must provide an opportunity for habeas review says nothing about the right to challenge the removal

DOJ's position is that's all SCOTUS required—notice of removal, not of rights

If it isn’t already clear, that is NOT what the Court said in J.G.G.

To recap: The administration couldn’t deport from South Texas (court order). They moved detainees to north Texas (district), and told the judge there: “No worries, we’re not deporting anyone from north Texas.” They then declared “King’s ‘X’” and began preparing removals with notice ONLY of removals, not rights to habeas, and ONLY in English. Too cute by half, and clearly aimed at avoiding court orders without quite being in contempt.

Now is when it gets interesting.