Calling the situation “untenable,” the Trump administration came to the Supreme Court on Wednesday afternoon, asking the justices to block orders by federal judges in Washington, D.C., that instructed government officials to allow board members at two independent agencies to remain in office despite President Donald Trump’s attempts to fire them. Soon after, Chief Justice John Roberts issued an administrative stay, which put those orders on hold while the justices consider the government’s request, and called for a response by 5 p.m. on Tuesday, April 15.
D. John Sauer, Trump’s new solicitor general, told the justices that the dispute “raises a constitutional question of profound importance: whether the President can supervise and control agency heads who exercise vast executive power on the President’s behalf, or whether Congress may insulate those agency heads from presidential control by preventing the President from removing them at will.”
Trump, Sauer wrote, “should not be forced to delegate his executive power to agency heads who are demonstrably at odds with the Administration’s policy objectives for a single day — much less for the months that it would likely take for the courts to resolve this litigation.”
Sauer asked the justices to put orders by U.S. District Judge Rudolph Contreras and Senior U.S. District Judge Beryl Howell on hold while the Trump administration appeals, as well as an administrative stay
Sauer also urged the justices, whether they grant the government’s request to pause the district judges’ orders or not, to take up the dispute and rule on the merits of the cases, without waiting for the court of appeals to weigh in. Particularly if the district judges’ orders are not put on hold, Sauer suggested, the justices should order additional briefing and oral arguments in May, with a decision to follow by late June or early July.
The two agencies at the center of the dispute are the Merit Systems Protection Board, which oversees the federal government’s personnel practices, and the National Labor Relations Board, which protects the rights of employees in the private sector to join unions.
The MSPB has three members, at least one of which must be from a different political party than the other two. The members, who serve seven-year terms, are appointed by the president and confirmed by the Senate.
There are five members of the NLRB, each of whom is appointed for a five-year term by the president and confirmed by the Senate. Without Wilcox, the current board has only two members – Marvin Kaplan, the chair, and David Prouty – one short of the three needed for a quorum.
MSPB members can only be removed by the president for “inefficiency, neglect of duty, or malfeasance in office.” Members of the NLRB can only be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Cathy Harris was appointed to the MSPB in 2022 by then-President Joe Biden for a term that was slated to expire in 2028. She became the chair of the agency in 2024. During her time in that role, the MSPB cleared almost its entire backlog – of nearly 4,000 cases – that had built up since 2017.
After Trump fired Harris on Feb. 10 of this year, she went to federal court, arguing that her termination violated federal law.
U.S. District Judge Rudolph Contreras ruled for Harris, agreeing with her that the removal protections provided to members of the MSPB are constitutional under Humphrey’s Executor v. United States, a 1935 Supreme Court decision holding that although a president can generally fire subordinates for any reason, Congress can create independent, multi-member regulatory agencies whose commissioners can only be removed “for cause.” Contreras ordered the Trump administration to allow Harris to continue to serve until her term expires.
The Supreme Court’s recent decisions in Seila Law v. Consumer Financial Protection Bureau, holding that “for cause” restrictions on the removal of the CFPB director violate the Constitution, and Collins v. Yellen, striking down limitations on the president’s ability to remove the director of the Federal Housing Finance Agency, do not affect “the constitutionality of for-cause removal provisions for multimember bodies of experts heading an independent agency,” Contreras explained. To the contrary, he stressed, the Supreme Court’s reasoning in Seila Law “reaffirmed the constitutionality” of such boards, “as those agencies have a robust basis in this country’s history, and their members lack the power to act unilaterally.” And the MSPB is precisely the kind of board protected under Humphrey’s Executor, Contreras continued, because it “does not wield substantial executive power” but “rather spends nearly all of its time adjudicating ‘inward-facing personnel matters’ involving federal employees.”
Gwynne Wilcox was appointed to the NLRB in 2021 by Biden, and then appointed to a second term in 2023. When Trump fired her on Jan. 27, 2025, he said that she had not “been operating in a manner consistent with” the administration’s “objectives,” had issued decisions that had “vastly exceeded” the NLRB’s powers, and that he did not have confidence that she could “fairly evaluate matters” before the board or that she would “faithfully execute” the law governing the board.
Wilcox went to federal court in Washington, D.C., seeking to be returned to office. She argued that her termination violated the federal law governing removal of NLRB members.
Senior U.S. District Judge Beryl Howell ruled that Wilcox had been illegally fired, and she barred Kaplan from removing Wilcox or interfering with her ability to carry out her duties. Howell concluded that Humphrey’s Executor was “not only binding law,” but also a “well-reasoned reflection of the balance of powers sanctioned by the Constitution.” Moreover, she added, the power of the current NLRB “is, if anything, less extensive than that of the FTC” at the time of the court’s decision in Humphrey’s Executor.
A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit paused both judges’ orders. However, the full D.C. Circuit – by a vote of 7-4 – lifted those orders, allowing Harris and Wilcox “to continue exercising the President’s executive power over the President’s express objection,” the Trump administration contends.
Humphrey’s Executor does not bar the president from removing members of the MSPB and NLRB, Sauer asserted in his filing on Wednesday. In Humphrey’s Executor, Sauer explained, the court “recognized a narrow exception to the President’s removal power that, properly construed, extends only to ‘multimember expert agencies that do not wield substantial executive power.’” But that is exactly what the MSPB and the NLRB do, Sauer insisted, by “implementing and enforcing federal labor and civil-service laws.”
Lower courts, in ordering reinstatement of Harris and Wilcox, contended that Humphrey’s Executor is still good law, and they could not overrule it. The Supreme Court cautioned, the government continued, in Seila Law that Humphrey’s Executor is not a “freestanding invitation for Congress to impose additional restrictions” on the president’s power to remove executive officials.
But if for-cause removal laws like the ones at issue in these cases are constitutional under Humphrey’s Executor, Sauer added, it plans to ask the Supreme Court to “hold, after receiving full briefing and argument,” that the case was wrong and should be overturned. But in any event, Sauer noted, the district court’s orders should be put on hold for now even under a “narrower reader” of Humphrey’s Executor.
And in any event, Sauer continued, a stay of the orders by Contreras and Howell is also warranted because federal courts do not have the power to order the return of agency heads fired by the president – in fact, no court has ever done so until this year. The courts’ intervention in these cases, Sauer wrote, “has thus thrown the NLRB’s and MSPB’s operations into chaos, cast a cloud on the lawfulness of the agencies’ actions, left the President and the Senate uncertain about whether and when they may install new officers to succeed” Wilcox and Harris, and “undermined ‘the steady administration of the laws’ that” the Constitution “seeks to secure.”
In the two-and-a-half months since Donald Trump’s inauguration, a rush of challenges to executive orders and directives have made their way through the courts and have now started to reach the justices in earnest. Alongside those orders, Trump fired the heads of several independent government agencies, experts who oversee technical matters of government including the enforcement of antitrust laws and review of federal workers’ challenges to their dismissals. Although the president can remove most government officials for any reason, those positions are protected by Congress from firing without good cause, such as “malfeasance in office,” and by a 1935 Supreme Court case that upheld such for-cause limits.
But some conservative legal scholars, and the president, have embraced a much broader view of executive power, one in which the president has complete authority to fire agency heads. The administration has indicated that it will ask the Supreme Court to overturn a 1935 decision, Humphrey’s Executor v. United States, which would allow the president to do just that. In that decision, the court barred Franklin Delano Roosevelt from firing a Republican member of the Federal Trade Commission. The decision protects the heads of independent, multimember agencies from unjustified removal to allow the agencies to function without the threat of political retaliation.
On Monday, the U.S. Court of Appeals for the District of Columbia Circuit ordered the Trump administration to reinstate Cathy Harris, of the Merit Systems Protection Board, and Gwynne Wilcox, of the National Labor Relations Board. Harris and Wilcox were fired in February and argue that they were illegally removed without the cause that the law requires. The federal government appealed to the Supreme Court on Wednesday, and just hours later Chief Justice John Roberts put both reinstatements on hold while the court considers the request.
I spoke recently with Stephen Vladeck, a professor at Georgetown University Law Center and close observer of the recent rise of the court’s emergency docket. His book on the subject is called The Shadow Docket. We discussed how likely the current court is to overrule Humphrey’s Executor and what might stand in its way, even as the majority has embraced an expansive view of executive power.
Our conversation was conducted by phone and email and has been edited for clarity.
Back in February, then-Acting Solicitor General Sarah Harris wrote in a letter to Congress that the Trump administration planned to challenge Humphrey’s Executor, is there a history of presidents ignoring or pushing that precedent since the 1930s?
The short answer is no. Obviously opposition to Humphrey’s Executor has become something of a cause célèbre especially among conservative judges and scholars, but this is the first time I think we’ve seen the justice department specifically take the position not just that it’s wrong, but that it should be overruled.
What about FDR, where does the case come out of?
FDR took the position that, under the Supreme Court’s 1926 ruling in Myers
, he had the unencumbered power to remove anyone on the Federal Trade Commission and the Supreme Court said he was wrong. The Supreme Court in Humphrey’s Executor unanimously upheld the for-cause removal limitations that Congress had written into the FTC act.
So at least since 1935, presidents of both parties have labored under the assumption that that’s at least good law, whether or not it’s rightly decided, and so have not attempted to remove members of the FTC or the NLRB, or perhaps even more importantly the Federal Reserve, without at least some argument that they met the relevant statutory requirements of good cause.
Was there any analogous protection for that relationship between Congress and the executive before the New Deal era?
Congress had started putting in for-clause removal restrictions long before FDR came along. I think it was just that FDR was, if not the first president, certainly the most vocal president about the scope of a president’s constitutional removal powers. In some respects, I think it was the Supreme Court that changed things when it handed down Myers. Because there’s language in Chief Justice Taft’s majority opinion in Myers that for the first time opened the door to arguments that for-cause removal restrictions were generally unconstitutional. So if we’re building the chronology, the restrictions existed, and then Myers comes along and suggests, perhaps inartfully, that all of them might be unconstitutional. And then Humphrey’s Executor was basically the test case for that proposition.
Interesting that Taft was the one that comes under.
There’s a profound historical irony in the fact that it’s the only president to ever serve on the court who’s in a position in Myers to endorse a very very broad and indefeasible presidential removal power.
So back to where Humphrey’s Executor sits today, how narrow are those protections?
One of the tricky things about Humphrey’s Executor is that, even though the Supreme Court hasn’t overruled it, it has to at least some degree reconceptualized it. Humphrey’s Executor itself, if you read Justice Sutherland’s opinion, spends a lot of time talking about how what the FTC does is not purely executive power. Instead, he talks about the quasi-judicial role that the FTC plays and even in some respects, the quasi-legislative role that the FTC plays.
Even though the modern court has not overruled Humphrey’sExecutor, it has really, I think, heavily watered down that understanding. Indeed, it has increasingly come to treat Humphrey’s Executor as this extreme outlier — as one of two Supreme Court precedents that are at least superficially inconsistent with the broad view of the unitary executive toward which the court has otherwise gravitated, Morrison v. Olsonbeing the other.
So the Supreme Court today basically takes the view that there’s Morrison, there’s Humphrey’s Executor and there’s nothing else. And that was the basis for the court’s 2020 ruling in Seila Law
that Congress could not insulate the head of the Consumer Financial Protection Bureau from presidential removal because, unlike the head of these multi-member commissions, the head of the CFPB is a single person.
In a world in which we were being faithful to the analysis of Humphrey’s Executor and not just the result, it shouldn’t make a difference whether the head was a single person or a multimember board; all that would matter is the type of power that the agency was wielding. But in a world in which Humphrey’s Executor and Morrison are nothing more than exceptions to the rule, then all of the litigation tends to reduce to whether the agency structure at issue is just like the exceptions or not.
You mentioned the Fed before, where does the Fed stand?
Part of why I believe that even this court has been reluctant to overrule Humphrey’s Executor, and it’s had chances, is because I think there is an unspoken but widely shared view that the independence of the Fed (and no other agency) is really important. I don’t think the court has yet been provided with a coherent rationale for a way in which it could overrule Humphrey’s Executor without also undermining the independence of the Fed, and thereby risking yet further harm to the stability of our economic system.
Of course, these cases are not just about the FTC and the Fed — there are a bunch of multimember-headed agencies, the SEC, the FCC, the Merit Systems Protection Board, etc., that are implicated by Humphrey’s Executor. But I think the real 800-pound gorilla is the Fed. Maybe it’s enough to just assert that the Fed is different, but at least to this point, there’s been no persuasive explanation for why, legally, that’s so.
But given how the court has handled what’s come to them so far from the Trump administration, is the field wide open for them to take on Humphrey’sExecutor?
I think two things can be true. One, I think the court would rather not have to decide one way or the other. And two, I think the Wilcox and Harris cases were always going to force the court to take up the question.
Do you have a sense of where the justices stand individually on this?
I don’t doubt that there are more than two votes to overrule Humphrey’s Executor. But, to me, the most important data point here is that the court has thus far resisted invitations to do so. And if the court were in a hurry to overrule Humphrey’s Executor, I think it would have already.
Maybe that was just because it didn’t have to face the issue; maybe there are five or more votes on the merits. But if the theory is correct that at least some of the justices’ reticence is because they don’t want to undermine the independence of the Fed, at least so far, no one has been able to square that circle.
On Wednesday, the chief justice moved very quickly to pause the district court’s orders that had reinstated Harris and Wilcox, just hours after the administration appealed to the court. Does that tell us anything? What do you have your eye on for what happens next?
I think it tells us two things — first, that the chief justice may have been a bit exasperated by the ping-pong nature of the proceedings in the lower courts, where Harris and Wilcox were fired, then not fired, then fired, then not fired again. And second, it strongly suggests to me that the court is going to use these cases to resolve the Humphrey’s Executor question — perhaps not by answering it through the Trump administration’s emergency application, but by taking up the government’s request that it treat the application as a petition for certiorari before judgment, and take up these cases for plenary review on an expedited basis now. If nothing else, it seems increasingly likely that the fate of Humphrey’s Executor will be resolved before the justices rise for their summer recess.
The Supreme Court on Friday afternoon put on hold an order by a federal judge in Massachusetts that would have required the Department of Education to reinstate more than $65 million in grants that it terminated in February because they funded programs that included diversity, equity, and inclusion initiatives.
In an unsigned three-page opinion
, a majority of the court explained that the government likely would not be able to get the funds back once they were disbursed. Moreover, the majority added, the recipients of the funds would not be permanently harmed if the funds are withheld while the litigation continues.
The vote was 5-4, with Chief Justice John Roberts indicating that he would have denied the government’s request. Justice Elena Kagan dissented, calling the court’s ruling a “mistake.” Justice Ketanji Brown Jackson, in an opinion joined by Justice Sonia Sotomayor, also dissented, writing that it was “beyond puzzling that a majority of the Justices conceive of the Government’s application as an emergency.”
At issue in the case are two grant programs intended to address a nationwide shortage of teachers. The Department of Education canceled all but five of the 109 grants after reviews found “objectionable” diversity and equity training material in the recipient programs.
Eight states, led by California, filed a lawsuit in federal court in Massachusetts in early March. They contended that universities and nonprofits in their states had received grants through the programs, and that the Department of Education had violated the federal law governing administrative agencies when it ended those grants.
A federal district judge issued a temporary order that required the government to reinstate the grants that it had terminated in the states bringing the lawsuit. U.S. District Judge Myong Joun also prohibited the government from implementing other terminations in those states.
The United States Court of Appeals for the 1st Circuit declined to put the district court’s order on hold while the government appealed, but it fast-tracked the appeal itself.
The Trump administration came to the Supreme Court on March 24, asking the justices to step in. Acting Solicitor General Sarah Harris asserted that unless the justices intervened, federal courts around the country will continue to exceed their powers “by ordering the Executive Branch to restore lawfully terminated grants across the government, keep paying for programs that the Executive Branch views as inconsistent with the interests of the United States, and send out the door taxpayer money that may never be clawed back.” Harris appealed to the justices to “put a swift end to federal district courts’ unconstitutional reign as self-appointed managers of Executive Branch funding and grant-disbursement decisions.”
California and the other states urged the court to stay out of the dispute. Joun, they said, “acted responsibly — entering a narrow and time-limited restraining order to preserve the status quo while moving rapidly to adjudicate” the state’s request for a preliminary injunction. The government cannot appeal the district court’s order, in any event the government’s appeal will be moot (that is, no longer a live controversy) by early April, they concluded.
In its order granting the Trump administration’s request on Friday, the majority first noted that although temporary orders like the one entered by Joun in this case are not normally appealable, it could nonetheless weigh in here because the order “carries many of the hallmarks of a preliminary injunction,” which can be appealed.
And the government is likely to show, the majority continued, that Joun lacked the power to order the government to make the payments under the federal law governing administrative agencies. Although that law waives the federal government’s general immunity from lawsuits, the majority explained, the waiver is a limited one that does not apply to court orders that would require the government to pay money for a contractual obligation. Instead, the majority continued, another federal law – the Tucker Act – gives another court, the Court of Federal Claims, the power to hear lawsuits arising from contracts with the United States.
Other considerations also weigh in favor of granting the government’s request, the majority wrote. On the one hand, the government contended (and the states do not dispute) that, once the funds are disbursed, it likely will not be able to recover them. By contrast, the majority stressed, the states have indicated that they have enough money to be able to continue their programs without the federal funding while the litigation moves forward.
Kagan complained that the government had not defended “the legality of canceling the education grants at issue” in this case. Moreover, she continued, the states challenging the termination of the grants do say that the termination of the grant “will force them—indeed, has already forced them—to curtail teacher training programs.” And the court’s conclusion that the dispute belongs in the Court of Federal Claims, rather than a federal district court, she suggested, is “at the very least under-developed, and very possibly wrong.”
More broadly, she wrote, the chance that the justices will make such a mistake increases when, as in this case, the justices act quickly, outside the normal briefing and argument schedule. She acknowledged that such fast action is sometimes necessary “despite the risk.” But for Kagan, “nothing about this case demanded our immediate intervention. Rather than make new law on our emergency docket,” she concluded, “we should have allowed the dispute to proceed in the ordinary way.”
Jackson called what she characterized as the majority’s “eagerness to insert itself into this early stage of ongoing litigation over the lawfulness” of the Department of Education’s actions “equal parts unprincipled and unfortunate.” Noting that Joun’s order will expire in just three days, she emphasized that it only bars the government from implementing a “mass termination” of grants; it does not prohibit the government from deciding, under its normal review process, to terminate individual grants.
Moreover, she continued, “there is no evidence that grantees have rushed to draw down the remaining $65 million in grant funds” in the 25 days since the order was entered. But if they did, she added, the government does have mechanisms to recover those funds.
Jackson criticized both the government’s decision to seek emergency relief without addressing the merits of the challenge and her colleagues’ decision to grant it, “If the emergency docket has now become a vehicle for certain defendants to obtain this Court’s real-time opinion about lower court rulings on various auxiliary matters, we should announce that new policy and be prepared to shift how we think about, and address, these kinds of applications.”
Finally, she insisted that the harm to the states challenging the grant terminations is – contrary to the majority’s suggestion – real. “In Massachusetts,” for example, she wrote, “Boston Public Schools has already had to fire multiple full-time employees due to this loss of grant-funding.”
Lawyers for two different groups of states, as well as lawyers representing immigrants’ rights groups and several pregnant women, urged the Supreme Court on Friday to leave in place three orders by federal judges that prohibit the federal government from implementing an executive order by President Donald Trump ending birthright citizenship – the guarantee of citizenship to almost everyone born in the United States. If the Supreme Court intervenes when the Trump administration “is so plainly wrong on the law,” the brief by Washington state (joined by three other states) warned, “there will be no end to stay applications and claims of emergency, undermining the proper role and stature of this Court.”
The United States is one of 30 countries, including Canada and Mexico, that offer virtually automatic citizenship to everyone born within their borders. The concept of birthright citizenship was explicitly added to the Constitution in 1868, following the Civil War and Emancipation. The 14th Amendment provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.”
In an executive order
signed on Jan. 20 and originally slated to go into effect 30 days later, Trump declared that children born in the United States will not be automatically entitled to citizenship if their parents are in this country illegally or temporarily.
Before the order could go into effect, several different challenges were filed in courts around the country. In Seattle, Senior U.S. District Judge John Coughenour called birthright citizenship a “fundamental constitutional right” and said that Trump’s order was “blatantly unconstitutional.” He granted a request from Washington and three other states (Arizona, Illinois, and Oregon) to temporarily bar the government from implementing the order.
A federal appeals court in San Francisco rejected the government’s plea to pause Coughenour’s order while its appeal moves forward.
In Maryland, U.S. District Judge Deborah Boardman also issued an order on Feb. 5 that temporarily prohibited the government from applying the order. In granting a request from immigrants’ rights groups and expectant mothers, Boardman emphasized that “no court in the country has ever endorsed the president’s interpretation,” adding that she “will not be the first.”
A federal appeals court in Richmond, Va., declined to partly block Boardman’s ruling while the government’s appeal continued. Judge Paul Niemeyer, who dissented from that decision, called the Trump administration’s request a “modest motion.”
A third judge, Leo Sorokin of the District of Massachusetts, also blocked the government from enforcing the order, in a case filed by 18 states, the District of Columbia, and San Francisco. Like the other courts of appeals, the U.S. Court of Appeals for the 1st Circuit refused to partly block Sorkin’s order.
Acting Solicitor General Sarah Harris came to the Supreme Court on March 13, asking the justices to partially block the three orders, so that the government would only be barred from enforcing them with respect to (at most) the individuals named in the complaints, the members of the groups challenging the order, and the residents of the states challenging the order. At the very least, Harris said, while the litigation continues the federal government should be able to make plans to implement the order.
The briefs filed by the challengers on Friday echo similar themes. First, they told the justices, there is no emergency requiring the Supreme Court to step in. There has long been broad agreement – among the justices of the Supreme Court, Congress, the executive branch, and legal scholars – that the Constitution guarantees citizenship to virtually everyone born in this country, they said. “Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay,” Washington Solicitor General Noah Purcell wrote
. This is particularly true, the brief filed by New Jersey and 17 other states
(along with D.C. and San Francisco) added, when the Trump administration does not “even attempt” to challenge the underlying merits of the district courts’ orders.
Second, they contended, the court should not narrow the scope of the orders that the district courts entered, but instead leave in place the nationwide (sometimes described as “universal”) injunctions issued in each of the three cases. The Supreme Court has allowed nationwide injunctions when “necessary to provide complete relief,” Washington state explained, and in this case the whole point of the 14th Amendment was to “create a uniform, national rule for citizenship.”
Because “children often move across state lines or are born outside their parents’ home states,” New Jersey added, “any patchwork injunction” that covered only some of the states “would be both unworkable and fail to remedy the States’ harms.”
CASA and the Asylum Seeker Advocacy Project, the two immigrants’ rights groups challenging the president’s order in Maryland (along with several expectant mothers), emphasized that between them
they have “more than 800,000 members, spread across all 50 states.” “The only workable way to ensure that the government respects the constitutionally guaranteed citizenship of all children born to those members during the pendency of this litigation is through a universal injunction.” Granting the government’s request to block the lower courts’ orders would lead to “chaos,” they said, because existing birth certificates would not be enough to prove citizenship for any child born in the United States – including those whose parents are both U.S. citizens.
The challengers also pushed back against the government’s suggestion that district courts more generally have been issuing too many nationwide injunctions that block the Trump administration from being able to “carry out its functions.”
CASA insisted that the number of nationwide injunctions issued this year “must be understood in proportion to the number of major policies announced through Executive Orders.” Trump, they stressed, “has already issued more than 100 Executive Orders in his second term, far and away the most ever for this point in a presidential term.”
And in any event, New Jersey continued, the fact that the Trump administration may be “frustrated by the scope of relief awarded in other cases, filed by other parties, involving other injuries and other administrability arguments,” does not justify the Supreme Court intervening in this case.
The challengers similarly resisted the government’s contention that keeping the district courts’ orders in place would make it more difficult for the president to “address the crisis at the Nation’s southern border.” CASA noted first that this case does not involve immigration, but instead the rights of people who are already in this country. But in any event, to the extent that the order is intended to address border security, it casts too broad a net, targeting people who may have nothing to do with the southern border – such as the children of people who came to this country on work or student visas.
And, finally, the challengers maintained that there is no reason for the court to grant the government’s request to at the very least be allowed to make internal plans to implement the executive order. CASA told the justices that, among other things, they should not weigh in on this question because the government did not make this argument in the lower court.
The Supreme Court on Monday lifted a pair of orders by a federal judge in Washington, D.C., that had barred the government from removing noncitizens who are designated as members of a Venezuelan gang under a March 15 executive order issued by President Donald Trump.
By a vote of 5-4, the justices declined to address the challengers’ contention that they are not covered by the 18th-century law on which Trump relied in issuing the order. Instead, the challengers’ lawsuit must be brought in Texas, where they are being held, rather than in Washington, D.C., the court explained.
The unsigned four-page opinion
emphasized that although courts have a limited role in reviewing claims under that law, the plaintiffs and others detained under the law are entitled to “notice and an opportunity to challenge their removal.”
Justice Sonia Sotomayor penned a 17-page dissent joined in full by Justices Elena Kagan and Ketanji Brown Jackson and in part by Justice Amy Coney Barrett. She contended that her colleagues’ “decision to intervene in this litigation is as inexplicable as it is dangerous.”
Jackson wrote her own two-page dissent in which she lamented that the majority’s “fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.”
The 1798 law at the center of the case is the Alien Enemies Act, which allows the president to detain or deport citizens of an enemy nation without a hearing or any other review by a court if either of two things occurs: Congress declares war, or there is an “invasion” or “predatory incursion.” The law has been invoked only three times – during the War of 1812, World War I, and World War II.
Trump’s executive order focuses on a large Venezuelan gang named Tren de Aragua, which began in Venezuela’s prisons and then spread into other parts of Latin America and, eventually, the United States. In February, Secretary of State Marco Rubio designated it as a “foreign terrorist organization.”
Trump found in his order that TdA “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Therefore, he concluded, “all Venezuelan citizens 14 years of age or older who are members of TdA are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
Even before Trump issued the order, a group of Venezuelan nationals in immigration custody went to federal court in Washington. They said that they feared that they would be removed, and they challenged Trump’s attempt to rely on the Alien Enemies Act.
U.S. District Judge James Boasberg quickly prohibited the federal government from removing any of the individual plaintiffs for 14 days. In a separate order issued later that day, Boasberg barred the government from removing anyone else under the Alien Enemies Act. During a hearing, Boasberg also ordered any flights to remove noncitizens that had already taken off to return to the United States.
The five individual plaintiffs named in the complaint are still in immigration detention in the United States. However, news reports indicated that more than 200 other noncitizens were taken from the United States on March 15, with their planes landing in El Salvador after Boasberg issued his written order.
The migrants were taken in shackles to a maximum-security “mega” prison in El Salvador, where their heads were shaved. The country’s president, Nayib Bukele, posted a video of the prisoners on social media that Rubio later reposted. The caption of the video read “Ooopsie … too late.”
The Trump administration asked the U.S. Court of Appeals for the District of Columbia Circuit to pause Boasberg’s order. The D.C. Circuit fast-tracked the government’s appeal, but on March 26 it rejected that request by a vote of 2-1.
Sarah Harris, then the acting U.S. solicitor general, came to the Supreme Court on March 28, asking the justices to allow the Trump administration to enforce the March 15 order. The dispute, she contended, “presents fundamental questions about who decides how to conduct sensitive national-security operations in this country – the President … or the Judiciary.” Harris told the justices that the “Constitution supplies a clear answer: the President.”
Lawyers for the Venezuelan nationals urged the court to leave Boasberg’s order in place. They noted that “many (perhaps most) of the men” sent to the El Salvadoran prison in March “were not actually members of” TdA. Boasberg’s order, they told the justices, is therefore “essential to ensure that more individuals who have no affiliation with the gang will not be sent to a notorious foreign prison.”
In an unsigned opinion on Monday evening, five of the court’s conservative justices – Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh – indicated that they would “not reach” the plaintiffs’ arguments regarding the application of the AEA to them. Instead, the majority explained, because the relief that they are seeking “necessarily” suggests that their confinement in immigration custody and removal under the AEA is invalid, they must bring their claims as habeas corpus claims – that is, a challenge to the legality of their detention.
The only place that such claims can be brought, the majority continued, is the judicial district where a prisoner is being detained. Because the plaintiffs in this case are now in Texas, rather than in Washington, D.C., the majority concluded, their case cannot be brought in Washington.
The court made clear that – as the government agrees – the plaintiffs, as well as others who may be detained or removed under the AEA, are entitled to be notified “that they are subject to removal under the Act.” Moreover, the court added, addressing an argument made by lawyers for the plaintiffs during oral arguments in the lower courts, the government must provide that notice “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
Kavanaugh wrote a brief concurring opinion in which he emphasized that “the Court’s disagreement is not over whether the detainees receive judicial review of their transfers—all nine Members of the Court agree that judicial review is available. The only question,” he concluded “is where that judicial review should occur.”
Sotomayor called the court’s conclusions “suspect.” She wrote that the removal of noncitizens to the prison in El Salvador “presented a risk of extraordinary harm to these” plaintiffs. Referring to the case (also pending at the Supreme Court) of a Maryland man whom the government admits was sent to El Salvador as a result of an administrative error, she observed that the government has contended that “even when it makes a mistake, it cannot retrieve individuals from” the prison in El Salvador.
“The implications of the Government’s position,” Sotomayor stressed, “is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.”
Sotomayor concluded by calling the majority’s decision on Monday “indefensible.” “We, as a Nation and a court of law, should be better than this,” she wrote.
In her separate dissent, Jackson explained that she agreed with Sotomayor but also wrote a separate dissent in which she questioned the majority’s decision to step into the dispute now, immediately before Boasberg had scheduled a hearing on the plaintiffs’ request for a preliminary injunction.
Jackson criticized the majority for addressing these issues on their emergency docket and reaching a “rushed conclusion.” Normally, she said, when the justices weigh in on “complex and monumental issues,” they give the lower courts an opportunity to “address those matters first.” Then, she continued, the court “receives full briefing, hears oral argument, deliberates internally, and, finally, issues a reasoned opinion.” When the court departs from that normal practice, she said, “the risk of error always substantially increases” and it does so without “a record so posterity [may] see how it went wrong.”
The Supreme Court on Tuesday paused an order by a judge in San Francisco that would require the federal government to reinstate more than 16,000 workers who were fired by six agencies earlier this year. A group of nonprofits challenging the layoffs argued that the terminations by the Office of Personnel Management violated several different parts of the federal law governing administrative agencies. But by an apparent vote of 7-2, the justices nonetheless put the order by Senior U.S. District Judge William Alsup on hold while the challenge to the firings continues, explaining that the nonprofits do not have a legal right, known as standing, to challenge the terminations.
In a brief unsigned order, the court explained that it was not weighing in on the claims by other plaintiffs in the lawsuit – specifically, unions representing government employees, whose claims Alsup did not address because he concluded that he likely did not have the power to hear them. The court also did not weigh in on the propriety of the firings more generally.
Justice Sonia Sotomayor indicated that she would have denied the Trump administration’s request to pause Alsup’s order.
Justice Ketanji Brown Jackson also would have turned down the Trump administration’s plea, because she would not have reached the question of the nonprofits’ standing to sue at this stage of the case.
The layoffs of tens of thousands of probationary employees – that is, employees who have been newly hired for a position, usually within the past year – in February came as part of a broader effort by the Trump administration to reduce the size of the federal workforce.
A group of nonprofits, arguing that layoffs could lead to fewer government services, which could in turn harm their members, went to federal court in San Francisco, seeking to have the probationary employees returned to their jobs.
Alsup concluded that although federal agencies can fire their own employees, the “Office of Personnel Management has no authority to hire and fire employees in another agency.” On March 13, he issued a preliminary injunction that directed OPM and six federal agencies – the Departments of Veterans Affairs, Agriculture, Defense, Energy, Interior, and the Treasury – to immediately bring back the probationary employees who had been fired.
A federal appeals court rejected the government’s request to put Alsup’s order on hold while its appeal – which the court agreed to fast-track – moved forward.
The Trump administration came to the Supreme Court on March 25, asking the justices to temporarily pause Alsup’s order. Sarah Harris, then the acting U.S. solicitor general, contended (among other things) that the nonprofits do not have a legal right to sue, known as standing, to challenge the layoffs. Alsup’s ruling, she argued, also lets “third parties hijack the employment relationship between the federal government and its workforce.”
The nonprofits countered that they have standing to sue because the layoffs will affect their members – for example, the firings of workers at the Department of Veterans Affairs “has already had and will imminently continue to have serious negative consequences” for the members of a veterans’ nonprofit who rely on federal services. And Alsup’s order, they wrote, simply “restored the status quo that existed prior to OPM’s illegal conduct.”
The two-paragraph order on Tuesday explained that Alsup’s order “was based solely on the allegations of the nine” nonprofits challenging the layoffs. But those allegations, the majority continued, “are presently insufficient” to give the nonprofits a legal right to sue. “This order does not address the claims of the other plaintiffs,” the majority noted, “which did not form the basis of” Alsup’s order.
Sotomayor noted only that she would have denied the Trump administration’s request, without explanation.
Jackson explained that, in an emergency appeal like this one, “where the issue is pending in the lower courts and the applicants have not demonstrated urgency in the form of interim irreparable harm,” she would not have ruled on the standing question at all.
Although the court put Alsup’s order on hold, a different federal judge in Maryland also has issued an order, which remains in effect for now, that requires the reinstatement of probationary employees at 20 federal agencies who live and work in the 19 states (along with the District of Columbia) that brought the case.
Tuesday’s order was the second in less than 24 hours putting a federal district judge’s order on hold and allowing – at least for now – the Trump administration to move forward with implementing its policies. On Monday evening, a closely divided court lifted a pair of orders by U.S. District Judge James Boasberg that had prohibited the government from removing noncitizens designated as members of a Venezuelan gang under a March 15 executive order issued by President Donald Trump. The majority in that case agreed with their dissenting colleagues – Sotomayor and Jackson, along with Justices Elena Kagan and Amy Coney Barrett – that noncitizens are entitled to notice and an opportunity to challenge their removal.
