J.G.G. v. Donald Trump

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5067 September Term, 2024

1:25-cv-00766-JEB

Filed On: March 26, 2025

J.G.G., et al.,

Appellees

v.

Donald J. Trump, in his official capacity as

President of the United States, et al.,

Appellants

------------------------------

Consolidated with 25-5068

BEFORE: Henderson, Millett, and Walker*, Circuit Judges

ORDER

Upon consideration of the emergency motions for stay, the opposition thereto,

the reply, and the Rule 28(j) letters; the amicus brief filed by South Carolina, Virginia,

and other states; the motion to participate as amicus curiae filed by Rep. Brandon Gill

and the lodged amicus brief; and the motion for leave to participate as amicus curiae

filed by State Democracy Defenders Fund and former government officials and the

lodged amicus brief, it is

ORDERED that the motions to participate as amicus curiae be granted. The

Clerk is directed to file the lodged amicus briefs. It is

FURTHER ORDERED that the emergency motions for stay be denied. Separate

concurring statements of Judge Henderson and Judge Millett and a dissenting

statement of Judge Walker are attached.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

* Judge Walker dissents from the denial of the emergency motions for stay.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

statement:

I. BACKGROUND

A. Statutory Background

In 1798, our fledgling Republic was consumed with fear.

Fear of external war with France. Fear of internal strife from

her sympathizers. And, for the incumbent Federalist party, fear

of its chief political rival: the Jeffersonian Republicans. In the

summer of 1798, the Federalists decided to kill two birds with

one stone. In a series of laws known as the Alien and Sedition

Acts, the Federalists granted the administration of President

John Adams sweeping authority to expel immigrants, gag the

free press and rid themselves of two key pillars of Republican

support—immigrant voters and partisan newspapers. At the

same time, these laws would purge the country of reviled

Jacobin sympathizers.

Under the first of these laws, the Alien Friends Act, the

Congress granted the President sweeping power to detain and

expel any alien he deemed “dangerous to the peace and safety

of the United States.” Act of June 25, 1798, ch. 58., 1 Stat.

570. Under the Sedition Act, the Congress made it a crime to

“write, print, utter or publish . . . any false, scandalous and

malicious writing or writings against” the government, the

Congress or the President, “with intent to defame . . . or to

bring them . . . into contempt or disrepute, or to excite against

them . . . the hatred of the [] people.” Act of July 14, 1798, ch.

74, 1 Stat. 596. Both laws were enacted by narrow margins,

widely derided as unconstitutional and allowed to lapse once

the Federalists were swept from power in the elections of 1800.

A third law, the Alien Enemies Act, offered a wartime

counterpart to the Alien Friends Act. That law granted the

President the power to detain and expel enemy aliens during

times of war, invasion or predatory incursion. See Act of July

2

6, 1798, ch. 66, 1 Stat. 577. Unlike its counterparts, the Alien

Enemies Act was never questioned by Jefferson or Madison—

the de facto leaders of the Republicans—“nor did either ever

suggest its repeal.” Ludecke v. Watkins, 335 U.S. 160, 171 n.18

(1948). On the contrary, the then-Republican minority in the

Congress supported its enactment. Perhaps unsurprisingly, it

is the only component of the Alien and Sedition Acts that

remains law today.

The Alien Enemies Act (AEA) contains two provisions: a

conditional clause and an operative clause. The conditional

clause limits the AEA’s substantive authority to conflicts

between the United States and a foreign power. Specifically,

there must be (i) “a declared war between the United States and

any foreign nation or government, or” (ii) an “invasion or

predatory incursion [] perpetrated, attempted, or threatened

against the territory of the United States by any foreign nation

or government,” and (iii) a presidential “public proclamation

of the event.” 50 U.S.C. § 21. If these conditions are met:

[A]ll 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 . . . to

direct . . . the manner and degree of the restraint

to which they shall be subject . . . 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

3

necessary in the premises and for the public

safety.1

Id. Thus, the AEA vests in the President near-blanket authority

to detain and deport any noncitizen whose affiliation traces to

the belligerent state. A central limit to this power is the Act’s

conditional clause—that the United States be at war or under

invasion or predatory incursion.

B. Factual & Procedural Background

On March 15, 2025, President Donald Trump invoked his

authority under the AEA to apprehend, detain and remove “all

Venezuelan citizens 14 years of age or older who are members

of [Tren de Aragua]” and who are not “naturalized or lawful

permanent residents of the United States.” Invocation of the

Alien Enemies Act Regarding the Invasion of the United States

by Tren de Aragua (Proclamation), 90 Fed. Reg. 13,033 (Mar.

14, 2025). The Proclamation rests on two key findings.

First, that Tren de Aragua (TdA)—a designated Foreign

Terrorist Organization—is conducting an invasion or predatory

incursion into the United States. As evidence of these

hostilities, the Proclamation cites TdA’s “irregular warfare

within the country,” including its “drug trafficking” and “mass

illegal migration to the United States.” Id.

Second, that TdA is “closely aligned with, and indeed has

infiltrated” the Venezuelan government, “including its military

and law enforcement apparatus.” Id. As evidence of these

connections, the Proclamation notes that TdA “grew

significantly” while Venezuela’s Vice President was a state

1

The original AEA was limited to males over the age of 14 but

was amended during World War I to its current version. See Act of

Apr. 16, 1918, ch. 55, 40 Stat. 531.

4

governor. Id. The Proclamation also asserts that the President

of Venezuela, Nicholas Maduro, sponsors a “narco-terrorism

enterprise” called Cártel de los Soles. Id. Cártel de los Soles

in turn “coordinates with and relies on TdA and other

organizations” to traffic illegal drugs into the United States. Id.

Learning of the President’s Proclamation, five

Venezuelans in the United States filed a putative class action

to enjoin its enforcement. They also filed an emergency

application for a temporary restraining order (TRO), alleging

that the plaintiffs and class faced “imminent danger of being

removed tonight or early tomorrow morning.” Mot. for TRO,

J.G.G. v. Trump, No. 1:25-cv-766 (D.D.C. Mar. 15, 2025),

ECF No. 3. Given the exigencies, the district court entered an

immediate and ex parte TRO to prevent the Executive Branch

from deporting any of the named plaintiffs for 14 days. The

court conducted a hearing that evening, during which it

provisionally certified a class of plaintiffs consisting of all

noncitizens in U.S. custody who are subject to the

Proclamation. It also entered a second TRO to cover the class

for a period of 14 days. The government immediately appealed

and sought a stay of the TROs pending its appeal of those

orders.

II. JURISDICTION

In the ordinary course of litigation, a plaintiff obtains relief

only if he secures a final judgment and prevails on the merits.

Remedies come at the end—not the beginning—of a suit. But

the world sometimes moves faster than the wheels of justice

can turn. And waiting for a final judgment can do harm that no

remedy can repair. For example, an election deadline may

moot a challenge before a court can resolve the merits. E.g.,

Ne. Ohio Coal. for Homeless & Serv. Emps. Int’l Union, Loc.

1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006). Or a detainee

5

might face imminent expulsion before a court can resolve the

lawfulness of his transfer. E.g., Belbacha v. Bush, 520 F.3d

452 (D.C. Cir. 2008) (granting a temporary injunction to

preserve jurisdiction in a Guantanamo Bay detainee case). In

such circumstances, courts need the ability to press pause.

Our legal tradition recognizes this reality with various

forms of interim relief. A plaintiff can obtain a preliminary

injunction, which (as its name implies) is a preliminary form of

relief meant to “preserve the status quo pending the outcome of

litigation.” Dist. 50, United Mine Workers of Am. v. Int’l

Union, United Mine Workers of Am., 412 F.2d 165, 168 (D.C.

Cir. 1969). “The purpose of such interim equitable relief is not

to conclusively determine the rights of the parties, but to

balance the equities as the litigation moves forward.” Trump

v. Int’l Refugee Assistance Project, 582 U.S. 571, 579–80

(2017) (citation omitted). In other words, a preliminary

injunction acts to shield the plaintiff “from irreparable injury”

and to “preserve[] the trial court’s power to adjudicate the

underlying dispute.” Select Milk Prods., Inc. v. Johanns, 400

F.3d 939, 954 (D.C. Cir. 2005) (Henderson, J., dissenting).

Sometimes even a preliminary injunction will not afford

the rapid relief necessary to prevent irreparable injury. A

preliminary injunction requires weighty considerations, and

those considerations must be memorialized with findings of

fact and conclusions of law. See Fed. R. Civ. P. 52(a)(2). For

that reason, courts may enter an even more provisional form of

relief: a temporary restraining order. A TRO is “designed to

preserve the status quo until there is an opportunity to hold a

hearing on the application for a preliminary injunction.” 11A

Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 2951 (3d ed. June 2024 update). Given the

exigencies that often accompany a TRO, a court may enter the

order ex parte and without notice to the enjoined party. Fed.

6

R. Civ. P. 65(b)(1). But because the procedural safeguards are

threadbare, a TRO may last for no longer than 14 days,

although with the possibility of extension “for good cause” or

with the consent of “the adverse party.” Fed. R. Civ.

P. 65(b)(2).

TROs, unlike preliminary injunctions, are not ordinarily

appealable. This has a “practical justification,” Dellinger v.

Bessent, No. 25-5028, 2025 WL 559669, at *12 (D.C. Cir. Feb.

15, 2025) (Katsas, J., dissenting)—TROs’ limited temporal

duration means the juice is often not worth the squeeze—but

also a formal one: appellate courts have jurisdiction to review

“final decisions of the district courts” only, with certain narrow

exceptions. 28 U.S.C. § 1291. One such exception is for

“interlocutory orders . . . granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to dissolve or

modify injunctions.” 28 U.S.C. § 1292(a)(1). That is why a

preliminary injunction—although not final—is subject to

appellate review. But no such exception exists for TROs. See

Off. of Pers. Mgmt. v. Am. Fed’n of Gov’t Emps., 473 U.S.

1301, 1303–05 (1985); Adams v. Vance, 570 F.2d 950, 953

(D.C. Cir. 1978) (“The grant of a [TRO] . . . is generally not

appealable.”).

Nevertheless, in certain limited circumstances, courts have

treated TROs as appealable orders. A TRO that threatens truly

“irretrievable” harm—that is, harm that cannot be rectified on

future appellate review—may be appealed. Adams, 570 F.2d

at 953.

The government asserts two theories of jurisdiction. We

need not decide the first because the second tips this case over

the jurisdictional line. The government argues that the TROs

risk “scuttling delicate international negotiations” and “may []

forever stymie[]” those negotiations if allowed to remain in

7

place “even temporarily.” Gov’t Br. 9; see also id. at 12

(warning that “once halted, [deportations] have the significant

potential of never resuming”). In an accompanying affidavit,

the government alleges that it has negotiated time-sensitive

agreements with the governments of El Salvador and

Venezuela to accept certain Venezuelan nationals subject to the

challenged executive order. See Kozak Decl. at 1 ¶ 2. If true,

those allegations establish that the government risks

irretrievable injury and thus that we may exercise appellate

jurisdiction. Granted, the government does not specify why a

two-week interlude would dismantle the agreements—it notes

only that “foreign interlocutors might change their minds,” id.

at 2 ¶ 4 (emphasis added)—but in assessing our jurisdiction,

we assume these claims to be true. Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 775 (D.C. Cir. 1984) (per curiam).

One additional factor tips this case over the jurisdictional

line. The district court entered two injunctions against all

named defendants—including the President of the United

States. Equity “has no jurisdiction . . . to enjoin the President

in the performance of his official duties.” Mississippi v.

Johnson, 71 U.S. (4 Wall.) 475, 501 (1867). Nor does the

Administrative Procedure Act (APA) authorize relief against

the President. See Dalton v. Specter, 511 U.S. 462, 469 (1994).

Although injunctions against executive officials are routine and

proper, “injunctive relief against the President himself is

extraordinary, and should . . . raise[] judicial eyebrows.”

Franklin v. Massachusetts, 505 U.S. 788, 802 (1992).

Whatever the merits (or lack thereof) of the government’s

claims, an injunction against the President is reason enough to

exercise jurisdiction.

8

III. THE STAY FACTORS

Before granting a stay pending appeal, we consider (1) the

applicant’s likelihood of success on the merits; (2) whether the

applicant faces irreparable injury absent a stay; (3) whether a

stay will substantially injure the other parties; and (4) the

public interest. Nken v. Holder, 556 U.S. 418, 434 (2009).

A. Likelihood of Success

The government raises three arguments for why it is likely

to succeed on the merits. First, the district court lacked

jurisdiction to hear the case. Second, the political question

doctrine bars consideration of the issues raised in this suit.

Third, its conduct is lawful under the plain text of the Alien

Enemies Act.

1. The District Court’s Jurisdiction

The government argues that plaintiffs sued in the wrong

venue because their habeas claims could be heard only in the

federal district where they are detained. A habeas remedy runs

against the immediate custodian of a detainee—“the person

who holds [the detainee] in what is alleged to be unlawful

custody.” Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484,

494–95 (1973). Ordinarily, the immediate custodian “is the

warden of the facility where the prisoner is being held.”

Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). A habeas suit

against the custodian must be brought in the detainee’s “district

of confinement,” which “[b]y definition” is the same district in

which the immediate custodian resides. Id. at 444. This is the

only district where “jurisdiction lies.” Id. at 443; see also id.

at 434 n.7 (noting that jurisdiction has a specific meaning in the

habeas statute); id. at 451–52 (Kennedy, J., concurring)

(explaining the rule is “not jurisdictional in the sense of a

limitation on subject-matter jurisdiction” but is instead “a

9

question of personal jurisdiction or venue”). The five named

plaintiffs are currently detained at the El Valle Detention

Center, Compl. ¶¶ 9–13, which is in the Southern District of

Texas. For habeas relief, then, they must sue the warden of the

Valle Detention Center in the U.S. District Court for the

Southern District of Texas.2

Plaintiffs initially challenged the lawfulness of the

Proclamation under the APA and sought various forms of

relief, including a writ of habeas corpus. Compl. at 21. But

they quickly abandoned their habeas claims and no longer

contest their confinement, only their detention. Cf. Rumsfeld,

542 U.S. at 439 (explaining that habeas’ geographic limits have

“no application” when plaintiffs are “not challenging any

present physical confinement”); Citizens Protective League v.

Clark, 155 F.2d 290 (D.C. Cir. 1946) (hearing AEA challenge

outside of habeas). The government’s second brief omits any

discussion of proper venue and instead contains a conclusory

assertion that the district court lacked jurisdiction because

“these claims sound in habeas.” Gov’t Br. 1. But cf. POM

Wonderful, LLC v. FTC, 777 F.3d 478, 499 (D.C. Cir. 2015)

(noting that arguments made “in conclusory fashion and

without visible support” may be deemed forfeited (quoting Bd.

of Regents of Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C.

Cir. 1996))). Assuming habeas relief is no longer sought, I turn

to plaintiffs’ APA claims, which again, I assume constitute

claims they can assert thereunder.

2

Padilla reserved judgment on whether the immediate-

custodian rule applies to “an alien detained pending deportation.”

542 U.S. at 435 n.8.

10

2. The Political Question Doctrine

a. The Availability of Judicial Review

The government argues that we may not even assess the

lawfulness of its conduct. In its view, whether there is an

invasion or predatory incursion—or whether an organization

qualifies as a foreign nation or government—is a political

question unreviewable by the courts.

Federal courts possess a “virtually unflagging obligation

. . . to exercise the jurisdiction given them.” Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976);

accord Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)

(Marshall, C.J.). One “limited and narrow exception” to this

duty arises when a case presents a purely “political question.”

Starr Int’l Co., Inc. v. United States, 910 F.3d 527, 533 (D.C.

Cir. 2018) (citing United States v. Munoz-Flores, 495 U.S. 385

(1990)). A case falls within the sparing ambit of the political

question doctrine “where there is ‘a textually demonstrable

constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and

manageable standards for resolving it.’” Nixon v. United

States, 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369

U.S. 186, 217 (1962)). It is not enough to highlight that “the

issues have political implications,” Zivotofsky ex rel. Zivotofsky

v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha,

462 U.S. 919, 943 (1983)), or that the case “lies beyond judicial

cognizance” because it “touches foreign relations.” Baker, 369

U.S. at 211.

At the outset, the government’s suggestion that judicial

review of the Alien Enemies Act is categorically foreclosed is

incorrect. See Gov’t Br. 14 (allowing that there could be a

narrow sliver of questions “potentially” open to review without

conceding the point). Nothing in the text of the AEA expressly

11

or implicitly forecloses the strong “presumption [of] judicial

review.” Coll. of Am. Pathologists v. Heckler, 734 F.2d 859,

862 (D.C. Cir. 1984). That result accords with the

understanding of the enacting legislature. In the Fifth

Congress, supporters of the AEA insisted “persons []

imprisoned [under the Act] would [] have the power of

demanding a trial.” 8 Annals of Cong. 1958 (1798). And early

practice comports with that understanding. See McGirt v.

Oklahoma, 591 U.S. 894, 914 (2020) (explaining that early

practice can shed light on an ambiguous statute). For example,

during the War of 1812, the Pennsylvania Supreme Court

entertained a habeas petition from a British resident of

Philadelphia challenging his relocation under the AEA. See

Lockington’s Case, Bright (N.P.) 269 (Pa. 1813); Boumediene

v. Bush, 476 F.3d 981, 988–89 (D.C. Cir. 2007) (describing the

case), rev’d, 553 U.S. 723 (2008). Chief Justice Marshall,

riding circuit and sitting with St. George Tucker, ordered the

release of an alien detained under the Act. See Gerald L.

Neuman & Charles F. Hobson, John Marshall and the Enemy

Alien, 9 Green Bag 2D 39, 41–42 (2005) (reproducing

Marshall’s decision in United States v. Williams).

b. The Scope of Judicial Review

Although these cases establish the availability of judicial

review, they do not settle the scope of that review. The

government asserts that the “sole question” amenable to

judicial scrutiny is whether a detained individual is “an alien

enemy,” Gov’t Br. 14, i.e., whether the person is a fourteen year

or older “native[], citizen[], denizen[], or subject[]” of a

presidentially declared hostile nation. 50 U.S.C. § 21. Any

other AEA prerequisites are purportedly “political question[s]”

“outside the competence of the courts.” Gov’t Br. 13.

12

The Court does not approach this issue in an analytic

vacuum. In Ludecke v. Watkins, the Supreme Court reviewed

the habeas petition of a German alien detained under the AEA

during the Second World War. 335 U.S. at 162–63. Following

Germany’s unconditional surrender and a cessation of actual

hostilities, the petitioner claimed that there was no longer a war

giving rise to AEA authority. Id. at 166. Splitting 5-4, the

Court disagreed. As it explained, a mere ceasefire does not

conclusively resolve a war, nor do war powers subside simply

because the “shooting stops.” Id. at 167. The mode of ending

a war “is a political act” and courts “would be assuming the

functions of the political agencies” to declare a war over when

“[t]he political branch of the Government” has not. Id. at 169–

70. The quantum of threat posed by enemy aliens during “a

state of war [] when the guns are silent but the peace of Peace

has not come” is a “political judgment for which judges have

neither technical competence nor official responsibility.” Id. at

170.

From Ludecke, the government draws the mistaken

inference that all questions of AEA authority are political and

thus beyond the scope of judicial review. But that is not what

the Court held. In no uncertain terms, the Court said the AEA

“preclude[s] judicial review . . . [b]arring questions of

interpretation and constitutionality.” Id. at 163 (emphasis

added). Questions of interpretation and constitutionality—the

heartland of the judicial ken—are subject to judicial review.

See Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221,

230 (1986) (explaining that “a decision which calls for

applying no more than the traditional rules of statutory

construction” is not a political question). Indeed, the Ludecke

Court itself engaged in interpretation, rejecting a definition of

“the statutory phrase ‘declared war’” that would “mean ‘state

of actual hostilities.’” Id. at 166 n.11, 170–71. Ludecke did

not foreclose courts’ ability to interpret the AEA’s predicate

13

acts—a declared war, invasion or predatory incursion—or

whether such conditions exist. Instead, Ludecke stands for the

proposition that when and by what means to end that

acknowledged war are choices “constitutional[ly] commit[ted]

. . . to a coordinate political department.” Nixon, 506 U.S. at

228.

Ludecke itself couched its holding in the line between law

and policy and the role of the judge to only decide the former.

The Alien Enemies Act, the Court explained, sets forth

“conditions upon which it might be invoked” but is silent as to

“how long the power should last when properly invoked.”

Ludecke, 335 U.S. at 166 n.11. The petitioner did not contest

the “propriety” of the conditional trigger—“the President’s

Proclamation of War”—only its continued durability. Id. That

latter question (how long the power should last) has no answer

in the plain text of the Act. Put another way, such a question

is lacking “judicially discoverable and manageable standards”

and thus lies outside the judicial purview. Nixon, 506 U.S. at

228. But conditional questions—the legal meaning of war,

invasion and predatory incursion—are well within courts’

bailiwick.3

3

The government also quotes Ludecke’s statement that “[t]he

very nature of the President’s power to order the removal of all

enemy aliens rejects the notion that courts may pass judgment upon

the exercise of his discretion.” Id. at 164. But the Court was simply

rejecting the argument that judicial approval was a prerequisite to

arrest, detention or deportation. That principle had been established

as early as the War of 1812. See Lockington v. Smith, 115 F. Cas.

758 (C.C.D. Pa. 1817). Indeed, immediately after the Ludecke

language the government quotes, the Court dropped a footnote

containing a long recitation from and citation to Lockington.

Ludecke, 335 U.S. at 164 n.7. And Lockington did not foreclose

14

One month before the Supreme Court’s decision in

Ludecke, this Court reviewed a nearly identical challenge

seeking injunctive and declaratory relief against enforcement

of the AEA. See Citizens Protective League, 155 F.2d at 290.

The challengers similarly alleged that AEA authority lapsed

with the cessation of hostilities with Germany. Id. at 292. We

rejected the challengers’ war-termination argument because

“[i]t is not for the courts to determine the end of a war declared

by the Congress.” Id. at 295. We said no more—and no less—

than the Supreme Court would the following month. The

elected branches—not the unelected bench—decide when a

war has terminated. That is a question of fact for elected

leaders. That does not mean that courts cannot pass on the legal

meaning of statutory terms.

Finally, the government cites the Ninth Circuit’s decision

in California v. United States for the proposition that an

invasion is a nonjusticiable political question. 104 F.3d 1086

(9th Cir. 1997). That case is inapposite and—insofar as it

carries any relevance—cuts directly against the government.

There, California advanced precisely the theory the

government claims here: that illegal immigration constitutes an

invasion of the United States. Id. at 1090. This was part of a

theory—advanced by several states—asserting that (i) illegal

immigration is an invasion; (ii) the United States was derelict

in its duties under the Guarantee Clause to repel that invasion;

and (iii) therefore the United States should compensate the

states and better enforce immigration laws. Id. The Ninth

Circuit had none of it, deeming the issue a political question

better suited to the halls of the Congress than the Article III

bench. Id. at 1091.

judicial review; it expressly entertained a habeas challenge and then

rejected it on the merits. Lockington, 115 F. Cas. at 759–62.

15

From that holding, the government draws the mistaken

proposition that the existence vel non of an invasion is beyond

judicial reach. That misreads California. That court rightly

disclaimed any role “to determine that the United States has

been ‘invaded’ when the political branches have made no such

determination.” Id. (emphasis added). This is merely the

inverse of the Ludecke principle: just as the courts will not

declare a properly declared war ended until the political

branches do so, they will not start a war on the government’s

behalf. Neither side of the coin precludes judicial review of

whether the Executive has properly invoked a wartime

authority. And insofar as California has any bearing on this

case, it is against the government. Although the court declared

the issue a political question, it also rejected the states’

immigration-as-invasion theory on the merits. As the court put

it, invasion refers to “situations wherein a state is exposed to

armed hostility from another political entity” and “was not

intended to be used as urged by California.” Id. (citing the

Federalist No. 43 (J. Madison)).4

At bottom, the government errs by “suppos[ing] that every

case or controversy which touches foreign relations lies beyond

judicial cognizance.” Baker, 369 U.S. at 211. Sensitive subject

matter alone does not shroud a law from the judicial eye. Cf.

Japan Whaling Ass’n, 478 U.S. at 230 (“As Baker plainly held,

. . . courts have the authority to construe treaties.”). Indeed, we

have previously considered the precise sort of question that the

4

Other circuits confronting similar claims have likewise

concluded that declaring an invasion by judicial fiat would pervert

the proper role of the political branches, and also that illegal

immigration is not an “invasion.” See Padavan v. United States, 82

F.3d 23, 28 (2d Cir. 1996) (explaining that “invasion” requires

“armed hostility from another political entity,” which is not “the

influx of legal and illegal aliens into” the United States); New Jersey

v. United States, 91 F.3d 463, 468–70 (3d Cir. 1996) (same).

16

government contends we cannot. See Kaplan v. Cent. Bank of

the Islamic Republic of Iran, 896 F.3d 501, 514, (D.C. Cir.

2018) (reviewing whether certain conduct rises to the level of

“an act of war within the meaning of [a] statut[e]”); Pan Am.

World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989,

1015–16 (2d Cir. 1974) (assessing whether a plane’s hijacking

was a “warlike act” or “warlike operation”). There is a “strong

presumption” in favor of judicial review of agency action like

that of the Department of Homeland Security here, which may

be overcome only by “clear and convincing evidence” that the

Congress intended to strip jurisdiction over the particular

category of challenge. Guerrero-Lasprilla v. Barr, 589 U.S.

221, 229–30 (2020). The government points us to no such

textual hook. And its precedent fails to fill the gap.

3. The Alien Enemies Act

The AEA provides that “[w]henever there is a declared

war . . . or any invasion or predatory incursion is perpetrated,

attempted, or threatened against the territory of the United

States by any foreign nation or government,” its apprehension,

detention and removal powers apply. 50 U.S.C. § 21. Quoting

a dictionary over two-hundred years post-enactment, the

government claims that the term “invasion” as used in the AEA

encompasses “the arrival somewhere of people or things who

are not wanted there.” Gov’t Br. 17 (alteration omitted)

(quoting Invasion, Black’s Law Dictionary (12th ed. 2024)).

The text and its original meaning say otherwise.

a. Invasion

Begin with the text. The term “invasion” was a legal term

of art with a well-defined meaning at the Founding. It required

far more than an unwanted entry; to constitute an invasion,

there had to be hostilities. As one leading dictionary of the era

specifies, an invasion is a “[h]ostile entrance upon the right or

17

possessions of another; hostile encroachment,” such as when

“William the Conqueror invaded England.” Samuel Johnson,

Invasion, sense 1, A DICTIONARY OF THE ENGLISH LANGUAGE

(4th ed. 1773). As another recounts, an invasion is a “hostile

entrance into the possession of another; particularly the

entrance of a hostile army into a country for the purpose of

conquest or plunder, or the attack of a military force.” Noah

Webster, Invasion, sense 1, AMERICAN DICTIONARY OF THE

ENGLISH LANGUAGE (1828). And because the invasion must

be “by any foreign nation or government,” 50 U.S.C § 21, that

entity would be an invader—i.e., “[o]ne who enters the territory

of another with a view to war, conquest or plunder.” Webster,

Invader, sense 1.

Next, look to context. The term “invasion” appears as part

of a list of three interrelated terms: (i) “a declared war” or

“any” (ii) “invasion” or (iii) “predatory incursion.” The basic

interpretive principle of noscitur a sociis counsels reading an

ambiguous word that appears in a list of related terms in light

of the company it keeps. See Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961). There could be a congressionally

declared war, an invasion by the belligerent government or a

lesser incursion into the United States. Each could trigger a

formal change in relations between the United States and the

hostile power under the law of nations, and, in turn, the

relationship of America to that nation’s people. The

surrounding statutory context confirms as much.

First, the invasion must be “against the territory of the

United States by any foreign nation or government.” 50 U.S.C.

§ 21 (emphasis added). The requirement that the “invasion” be

conducted by a nation-state and against the United States’

“territory” supports that the Congress was using “invasion” in

18

a military sense of the term.5 See Ex parte Bollman, 8 U.S. (4

Cranch) 75, 131 (1807) (describing levying war against the

United States as “a military enterprize . . . against any of the

territories of the United States”); Wiborg v. United States, 163

U.S. 632, 633 (1896) (explaining that a group of seamen were

charged with preparing for a “military expedition . . . against

the territory and dominions of a foreign prince”). Undesired

people do not arrive against the territory. But foreign armies

can—and as the 1798 Congress feared might—invade the

territory of the United States.6 Second, the invasion may be

actual, “attempted, or threatened.” 5 U.S.C. § 21. Again, when

used in reference to hostilities among nations, an attempted or

threatened invasion of the United States would mark a logical

trigger for enhanced presidential authority. Third, and

relatedly, the conditional list of triggering events—a declared

war, invasion or predatory incursion—must be read against the

means the Congress employed to combat the same. The AEA

authorizes the President to restrain and remove the nationals of

a belligerent foreign power. Such power tracks when invasion

is considered in its military sense.

Finally, consider history. The Alien Enemies Act was

enacted by the Fifth Congress amid an actual conflict—the

Quasi-War—with France, a foreign power. War was front and

5

Invasion had a secondary meaning at the Founding that

described “[a]n attack on the rights of another; infringement or

violation” of “the rights of another.” Webster, Invasion, sense 2; see

THE DECLARATION OF INDEPENDENCE para. 7 (U.S. 1776) (accusing

the Crown of an “invasion on the rights of the people”); id. para. 8

(returning to a military connotation of invasion). By focusing on

territory rather than individuals or rights, the Congress made plain it

was using the military sense of the term.

6

Although TdA and other drug cartels are reported to control

portions of other countries, that is not the case in the United States.

19

center in the minds of the enacting legislature. A little over one

month before enacting the AEA, the same Congress authorized

the President to raise a standing army of 10,000 men to combat

any French invasion. But he could do so only “in the event of

a declaration of war against the United States, or of actual

invasion of their territory, by a foreign power, or of imminent

danger of such invasion.” Act of May 28, 1798, ch. 47, § 1,

1 Stat. 558. This language bears more than a passing

resemblance to the language of the AEA, which the Congress

enacted a mere thirty-nine days later. In his most famous

exposition against the Alien and Sedition Act, Madison

explained that an “[i]nvasion is an operation of war.” James

Madison, Report of 1800 (Jan. 7, 1800), in Founders Online

[https://perma.cc/2D3N-N64Z]. In such times, the “law of

nations” allowed for the expulsion of alien enemies as “an

exercise of the power of war.” Id.

Debates in the Congress surrounding ratification of the

Alien and Sedition Acts support this read. Rep. Joshua Coit of

Connecticut warned that the United States “may very shortly

be involved in war” against France and that the “immense

number of French citizens in our country” could threaten the

Republic. GORDON S. WOOD, EMPIRE OF LIBERTY 247 (2009).

Rep. James Bayard of Delaware pushed back on critics of the

new laws by warning of aliens who might be “likely to join the

standard of an enemy, in case of an invasion.” 8 Annals of

Cong. 1966 (1798). Rep. John Allen of Connecticut cautioned

that the country could not “wait for an invasion, or threatened

invasion” before granting the power to the President to remove

aliens, noting that multiple European powers had fallen to

France “by means of [alien] agents of the French nation.” Id.

at 1578. Opponents of the Acts contested their constitutionality

and warned that—if accepted—they could lead to the

suspension of habeas corpus, which is allowable “in cases of

rebellion or invasion.” Id. at 1956 (Statement of Rep. Albert

20

Gallatin of Pennsylvania) (citing U.S. Const. art. I., § 9, cl. 2)

(emphasis added). Supporters disputed that any suspension

would occur, id. at 1958, but did not dispute that the AEA drew

on wartime powers. On the contrary, they invoked, among

other authority, the Congress’s “power . . . of providing for the

common defence,” id. at 1959 (statement of Rep. Gray Otis of

Massachusetts) and the President’s “powers which [he] already

possesses, as Commander-in-Chief.” Id. at 1791.7

This should come as no surprise. The term “invasion” was

well known to the Fifth Congress and the American public

circa 1798. The phrase echoes throughout the Constitution

ratified by the people just nine years before. And in every

instance, it is used in a military sense. For example, the

Guarantee Clause provides that “[t]he United States shall . . .

protect each [State] against Invasion; and on Application of the

Legislature, or of the Executive (when the Legislature cannot

be convened) against domestic Violence.” U.S. Const. art. IV,

§ 4. The clause is a federal guarantee to the states against

attack from without (invasion) or within (insurrection). In

describing the clause, the Federalist Papers refer to invasion

and domestic violence as “bloody” affairs involving “military

talents and experience” and “an appeal to the sword.” The

Federalist No. 44 (J. Madison). To effectuate the guarantee,

the Congress has power “[t]o provide for calling forth the

Militia to . . . suppress Insurrections and repel Invasions.” U.S.

Const. art. I, § 8, cl. 15. Again, to use military force against

invasion. During these exigent times of hostilities—“in Cases

of Rebellion or Invasion”—the Congress may suspend “The

7

Although “legislative history is not the law,” Azar v. Allina

Health Servs., 587 U.S. 566, 579 (2019), it can provide some

probative evidence of the original public meaning of the text. And

here, congressional debates squarely accord with the plain meaning

of the text in context and are thus “extra icing on a cake already

frosted.” Van Buren v. United States, 593 U.S. 374, 394 (2021).

21

Privilege of the Writ of Habeas Corpus . . . when . . . the public

Safety may require it.” Id. art. I, § 9, cl. 2. Finally, if the

federal guarantee fails, a state may exercise its Article I power

to “engage in War” but only if “actually invaded, or in such

imminent Danger as will not admit of delay.” Id. art. I, § 10,

cl. 3. When the Constitution repeats a phrase across multiple

clauses—and the early Congresses echo that phrase in statute—

it is a strong signal that the text should be read in pari materia.

See 2B Shambie Singer & Norman J. Singer, Sutherland

Statutes & Statutory Construction (7th ed. Nov. 2024 update)

§ 51:1–3; Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev.

747, 788–91 (1999). The theme that rings true is that an

invasion is a military affair, not one of migration.

What evidence does the government muster against the

weight of this evidence? It marshals a lone contemporary

dictionary and then plucks the third-order usage of the term

after skipping over its (still) more common military meaning.

See Gov’t Br. 17 (citing Invasion, sense 3, Black’s Law

Dictionary (12th ed. 2024)). But see id., sense 1 (“[a] military

force’s hostile entry into a country or territory”); cf. District of

Columbia v. Heller, 554 U.S. 570, 577 (2008) (“Normal

meaning . . . excludes secret or technical meanings that would

not have been known to ordinary citizens in the founding

generation.”).

b. Predatory Incursion

The government finds no safer refuge in the alternative

“predatory incursion.” The government defines the term as

“(1) an entry into the United States, (2) for purposes contrary

to the interests or laws of the United States.” Gov’t Br. 18.

And it explains that illegal immigration and drug trafficking

readily qualify under that standard. As before, the government

misreads the text, context and history. An incursion is a lesser

22

form of invasion; an “[a]ttack” or “[i]nvasion without

conquest.” Samuel Johnson, Incursion, senses 1 & 2, A

DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773). Its

predatory nature includes a “[p]lundering,” such as the

“predatory war made by Scotland.” Id., Predatory, sense 1.

Secretary of State Thomas Pickering used the term to describe

a lesser form of attack that France could conduct against the

U.S. and which, in his view, could be repelled by the militia.

See Letter from Thomas Pickering to Alexander Hamilton

(June 9, 1798), in Founders Online [https://perma.cc/VD5M-

QSNA]. This was raised in contradistinction to a full invasion,

which would require an army. Id. Rep. Otis likewise described

a predatory incursion as a lesser form of invasion or war. 8

Annals of Cong. 1791 (1798). Early American caselaw sounds

a similar theme: incursions referred to violent conflict.

Alexander Dallas, appearing before the Marshall Court,

described “predatory incursions of the Indians” onto

Pennsylvania’s frontier, which had led to “an Indian war.”

Huidekoper’s Lessee v. Douglass, 7 U.S. (3 Cranch) 1, 11

(1805).8 Chief Justice Marshall referred to “incursions of

hostile Indians,” which involved “constant scenes of killings

and scalping,” and led to a retaliatory “war of extermination.”

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831);

accord Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 545 (1832)

(explaining that Pennsylvania’s royal charter included “the

power of war” to repel “incursions” by “barbarous nations”).

Like its statutory counterparts, predatory incursion referred to

a form of hostilities against the United States by another nation-

8

Alexander Dallas was a lawyer and the first reporter of

Supreme Court decisions responsible for the “Dallas” series. He

later served as Secretary of the Commonwealth of Pennsylvania,

U.S. attorney for the Eastern District of Pennsylvania and Secretary

of the Treasury.

23

state, a form of attack short of war. Migration alone did not

suffice.

4. Issues Not Decided

Preliminary relief is not simply a fast track to the merits.

Because the Supreme Court has instructed that likelihood of

success on the merits is among “the most critical” factors, the

parties’ underlying dispute must be addressed. Nken, 556 U.S.

at 434. Had the government shown a likelihood of success on

any of the three issues above, it would have prevailed on the

first factor. Two of the three issues discussed go to jurisdiction

and all present purely legal questions amenable to a provisional

peek at the merits. The multitude of outstanding issues raised

by the parties are more amenable to resolution by the district

court on remand than this Court on expedited review. It bears

emphasis what we are not deciding.

First, the analysis supra III.A.1–3 represents a preliminary

view of the merits. The government remains free to muster

additional evidence and arguments. But on the record

presented, the government has yet to show a strong likelihood

of prevailing. That is not “in any sense intended as a final

decision” or meant to “intimate [a] view as to the ultimate

merits.” Brown v. Chote, 411 U.S. 452, 456–57 (1973)

(describing the role of preliminary rulings); Univ. of Texas v.

Camenisch, 451 U.S. 390, 394 (1982) (emphasizing that it

would be error to “improperly equate[] ‘likelihood of success’

with ‘success.’”). Just as plaintiffs’ TRO does not signal that

they are “absolutely certain” to prevail, Wash. Metro. Area

Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844

(D.C. Cir. 1977), neither the district court nor the parties should

attempt to imbue this opinion with an aura of finality.

Second, I do not pass on whether TdA has conducted an

“invasion or predatory incursion” “against the territory of the

24

United States.” 50 U.S.C. § 21. The government will have

ample opportunity to prove its case and its evidence should be

afforded the requisite deference due the President’s national

security judgments. See, e.g., Holder v. Humanitarian L.

Project, 561 U.S. 1, 36 (2010) (recognizing that the

government’s judgment in “sensitive [areas of] national

security and foreign affairs” “is entitled to significant weight”);

Trump v. Hawaii, 585 U.S. 667, 704 (2018) (noting the

“constrained” nature of judicial “inquiry into matters of . . .

national security”).

Third, I offer no view on whether TdA’s conduct is

“perpetrated, attempted, or threatened . . . by a[] foreign nation

or government.” 50 U.S.C. § 21 (emphasis added). The

Proclamation claims that TdA “is closely aligned with, and []

has infiltrated” the Venezuelan state such that it is a “hybrid

criminal state.” This issue raises disputed questions of

sovereignty, authority and control that turn as much on

contested facts as they do legal conclusions. Ours is a court of

review, not first view; such issues are appropriately left to the

district court in the first instance.

Finally, plaintiffs contend that the Immigration and

Nationality Act (INA)’s procedures are the “exclusive

procedure” for removal and thus eclipse any contrary authority

in the AEA. Pl. Br. 24 (quoting 8 U.S.C. § 1229a(a)(3)). This

claim, however, speaks more to plaintiffs’ likelihood of success

on the merits than the government’s. And although it is a

primarily legal question, it is one we need not—and therefore

ought not—decide in this nascent posture.

B. Balance of Harms & Public Interest

The harm to the government and the public interest factor

“merge” when the government is seeking a stay, so they are

considered together. Nken, 556 U.S. at 435. The government

25

spends almost all of its brief arguing the merits. As explained,

the central purpose of preliminary relief—whether at the trial

level or the appellate level—is to prevent irreparable injury, not

to short-circuit the normal course of litigation. The equities

thus loom large in this early posture. Yet the only mention of

irreparable injury in the government’s brief is to deny that

plaintiffs’ injury is irreparable. See Gov’t Br. 12–13. Although

plaintiffs must show irreparable injury to secure an injunction,

it is now the defendant who—seeking relief from an injunction

so obtained—must show irreparable injury absent a stay of the

injunction. See Nken, 556 U.S. at 434 (requiring a stay

applicant to show “irreparabl[e] injur[y] absent a stay”).

Insofar as the argument is preserved, it is unavailing.

The government warns that “delayed removal may be

removal denied.” Gov’t Br. 12 (emphasis added). Equity will

not act “against something merely feared as liable to occur at

some indefinite time.” Connecticut v. Massachusetts, 282 U.S.

660, 674 (1931); see also Murthy v. Missouri, 144 S. Ct. 7, 9

(2023) (Alito, J., with Thomas and Gorsuch, JJ., dissenting

from grant of application for stay) (“[S]peculation does not

establish irreparable harm.”); Singh v. Berger, 56 F.4th 88, 97

(D.C. Cir. 2022) (explaining that “the [government] must

demonstrate the specific harm that ‘would’—not could—result

from” denying a stay).

Next, the government claims that the TROs “impede the

President from using his constitutional and statutory authority

to address a predatory invasion by a hostile group.” Gov’t

Reply 13. The President’s inherent constitutional authority is

not the subject of the TRO and the burden on his statutory

powers under the AEA is limited. The district court’s

injunction covers only deportation. The President may arrest

and detain purported enemy aliens under the Proclamation

without violating that order. Insofar as exigent circumstances

26

require prompt deportation, the President can tap his

substantial authorities under the INA to do so. Finally, the

TRO expires in just a few days. The government has not

explained why its purported harms rise or fall on a few days’

delay.

The Executive’s burdens are comparatively modest

compared to the plaintiffs’. Lifting the injunctions risks exiling

plaintiffs to a land that is not their country of origin. See J.G.G.

v. Trump, 1:25-cv-766 (D.D.C. Mar. 16, 2025), ECF Nos. 19,

21 (informing the district court that Venezuelan members of

the plaintiff class were deported to El Salvador). Indeed, at

oral argument before this Court, the government in no

uncertain terms conveyed that—were the injunction lifted—it

would immediately begin deporting plaintiffs without notice.

Plaintiffs allege that the government has renditioned innocent

foreign nationals in its pursuit against TdA. For example, one

plaintiff alleges that he suffered brutal torture with “electric

shocks and suffocation” for demonstrating against the

Venezuelan regime. Id. (D.D.C. Mar. 19, 2025), ECF No. 44-

5 ¶ 2. While awaiting adjudication of his asylum claim, he was

expelled to “El Salvador with no notice to counsel or family”

based on a misinterpretation of a soccer tattoo. Id. ¶¶ 5–7. To

date, his family and counsel have “lost all contact” and “have

no information regarding his whereabouts or condition.” Id.

¶ 10. The government concedes it “lack[s] a complete profile”

or even “specific information about each individual” it has

targeted for summary removal. Id. (D.D.C. Mar. 17, 2025),

ECF No. 26-1 ¶ 9.

There is a “public interest in preventing aliens from being

wrongfully removed, particularly to countries where they are

likely to face substantial harm.” Nken, 556 U.S. at 436. The

government’s response to this interest is that “removal . . . is

not categorically irreparable.” Gov’t Br. 12 (quoting Nken, 556

27

U.S. at 435). But in this procedural posture, it is not plaintiffs’

burden to prove irreparable injury; it is the government’s. We

must consider whether a stay will “substantially injure”

plaintiffs. Nken, 556 U.S. at 434. And Nken emphatically

states that “removal is a serious burden for many aliens.” Id.

at 435.

For these reasons, the government has not met its burden

to obtain the “extraordinary remedy” of staying the district

court’s injunctions. KalshiEX LLC v. CFTC, 119 F.4th 58, 63

(D.C. Cir. 2024) (cleaned up).

C. The Scope of Relief

Even if we decline to stay the district court’s injunctions,

the government contends that we should narrow their scope. In

its view, the lower court entered an “unconstitutional”

“universal TRO.” Gov’t Br. 20; Gov’t Reply 15–16. Universal

injunctions “ha[ve] significantly stretched the traditional

equitable powers of Article III courts.” Indus. Energy

Consumers of Am. v. FERC, 125 F.4th 1156, 1168 (D.C. Cir.

2025) (Henderson, J., concurring). Even if universal relief is

constitutionally sound—and there are reasons to believe it is

not—courts should be particularly wary before entering “an

injunction that bar[s] the Government from enforcing the

President’s Proclamation against anyone” given the “toll on the

federal system . . . and for the Executive Branch.” Hawaii, 585

U.S. at 713 (Thomas, J., concurring). But what the district

court did here was not a universal injunction—i.e., it did not

enter relief that goes beyond the parties to the suit. Instead, the

court followed the Rules of Civil Procedure and certified a

class—a class that will be bound by an unfavorable judgment

just as much as by a favorable one. See Indus. Energy

Consumers of Am., 125 F.4th at 1169 (Henderson, J.,

concurring) (pointing to class actions as a procedurally proper

28

way to afford relief to a disparate class); Samuel Bray, Multiple

Chancellors: Reforming the National Injunction, 131 Harv. L.

Rev. 418, 475 (2017) (describing class actions as the “obvious

answer” to the problems universal injunctions seek to

address).9

Although the injunctions’ breadth is permissible as to the

plaintiffs, it is not as to all defendants. Specifically, the district

court’s TROs enjoin the President of the United States himself.

At common law, the Chancellor could not grant “any relief

against the king, or direct any act to be done by him.” 3

William Blackstone, Commentaries on the Laws of England

428. This historic limitation carries forward to today and strips

the federal courts of equitable “jurisdiction . . . to enjoin the

President in the performance of his official duties.” Johnson,

71 U.S. at 501. Separation of powers concerns pose an

independent bar. We can no more “direct the President to take

a specific executive act” than we can compel the “Congress to

perform particular legislative duties.” Franklin, 505 U.S. at

829 (Scalia, J., concurring in part and concurring in the

judgment). However, the government has not sought to lift the

injunction as to the President alone. We do not ordinarily

dispense “relief that a party failed to clearly articulate in its

briefs.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 763

(D.C. Cir. 2014). I decline to do so sua sponte today. On

remand, the district court should modify its TROs to exclude

the President from their scope.

* * *

At this early stage, the government has yet to show a

likelihood of success on the merits. The equities favor the

plaintiffs. And the district court entered the TROs for a

quintessentially valid purpose: to protect its remedial authority

9

I do not pass on the class action “fit” of the plaintiffs’ claims.

29

long enough to consider the parties’ arguments. Accordingly,

and for the foregoing reasons, the request to stay the district

court’s TROs should be denied.

MILLETT, Circuit Judge, concurring: “The government of

the United States has been emphatically termed a government

of laws, and not of men” and women. Marbury v. Madison, 5

U.S. 137, 163 (1803). This means that the United States

government adheres faithfully to the Constitution’s

requirements and duly enacted laws. Any government can hew

to a legal path when dealing with easy and workaday matters

of governance. The true mark of this great Nation under law is

that we adhere to legal requirements even when it is hard, even

when important national interests are at stake, and even when

the claimant may be unpopular. For if the government can

choose to abandon fair and equal process for some people, it

can do the same for everyone.

In this appeal, the government seeks exceptional

emergency relief from temporary restraining orders that do just

one thing—prevent the summary removal of Venezuelan

immigrants to a notorious prison in El Salvador or other

unknown locations without first affording them some

semblance of due process to contest the legal and factual bases

for removal. Plaintiffs are Venezuelan immigrants who the

government claims are members of a violent criminal gang

known as Tren de Aragua. In the government’s view, based on

its allegation alone, Plaintiffs can be removed immediately

with no notice, no hearing, no opportunity—zero process—to

show that they are not members of the gang, to contest their

eligibility for removal under the law, or to invoke legal

protections against being sent to a place where it appears likely

they will be tortured and their lives endangered.

The district court has been handling this matter with great

expedition and circumspection, and its orders do nothing more

than freeze the status quo until weighty and unprecedented

legal issues can be addressed through a soon-forthcoming

preliminary injunction proceeding. There is neither

jurisdiction nor reason for this court to interfere at this very

preliminary stage or to allow the government to singlehandedly

2

moot the Plaintiffs’ claims by immediately removing them

beyond the reach of their lawyers or the court. See Oral Arg.

1:44:39-1:46:23, J.G.G. v. Trump, 25-5067 (D.C. Cir. 2025),

https://perma.cc/LB7B-7UFN (J. Millett: “My question is, if

we were to grant the relief you request, would the government

consider it necessary to allow time to file a habeas petition

before removing people? * * * [Is it] the government’s position

that it could immediately resume mass removals of the five

named Plaintiffs and the class members, immediately?

Government: “Your Honor, * * * we take the position that the

AEA does not require notice * * * [and] the government

believes there would not be a limitation [on removal.]”). The

Constitution’s demand of due process cannot be so easily

thrown aside.

For those reasons I agree with the judgment denying the

government’s motions for stays in this case.

I

This case arises at the intersection of the Due Process

Clause of the Constitution, U.S. CONST. Amend. V, and the

Alien Enemies Act of 1798, 50 U.S.C. §§ 21-24.

A

The Fifth Amendment to the Constitution provides, as

relevant here, that “[n]o person shall * * * be deprived of life,

liberty, or property without due process of law.” U.S. CONST.

Amend. V. The “persons[s]” protected by that foundational

guarantee include all persons present in the United States, the

law-abiding as well as those who violate the law, the immigrant

without documentation as well as the citizen. See Reno v.

Flores, 507 U.S. 292, 306 (1993) (“It is well established that

the Fifth Amendment entitles aliens to due process of law in

3

deportation proceedings.”) (citing The Japanese Immigrant

Case, 189 U.S. 86, 100-101 (1903)).

While the Due Process Clause’s coverage is broad, the

amount of process due can vary based on the nature and context

of the governmental intrusion. See Morrissey v. Brewer, 408

U.S. 471, 481 (1972) (“Once it is determined that due process

applies, the question remains what process is due. * * *

Consideration of what procedures due process may require

under any given set of circumstances must begin with a

determination of the precise nature of the government function

involved as well as of the private interest that has been affected

by governmental action.”) (internal citation and quotation

marks omitted); Snyder v. Massachusetts, 291 U.S. 97, 116-

117 (1934) (“Due process of law requires that the proceedings

shall be fair, but fairness is a relative, not an absolute concept.

* * * What is fair in one set of circumstances may be an act of

tyranny in others.”).

At its most basic, due process requires notice of adverse

governmental action, an opportunity to be heard, and the right

to an unbiased decisionmaker. See Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (“The fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time and

in a meaningful manner.’”) (quoting Armstrong v. Manzo, 380

U.S. 545, 552 (1965)); Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950) (“Many controversies have

raged about the cryptic and abstract words of the Due Process

Clause but there can be no doubt that at a minimum they require

that deprivation of life, liberty or property by adjudication be

preceded by notice and opportunity for hearing appropriate to

the nature of the case.”); Tumey v. State of Ohio, 273 U.S. 510,

523 (1927) (Due process is violated when the decision maker

has a “direct” and “substantial” interest “in reaching a

conclusion against” the defendant.).

4

In the specific context of immigration, Congress has

enacted a comprehensive legal regime providing due process

to those who the government alleges are unlawfully present in

the United States. The Immigration and Nationality Act

provides “the sole and exclusive procedure for determining

whether an alien may be * * * removed from the United

States.” 8 U.S.C. § 1229a(a)(3). Under that Act, noncitizens

are entitled to “apply for asylum” if they can “establish that

race, religion, nationality, membership in a particular social

group, or political opinion was or will be at least one central

reason for [their] persecution” in the country of their

nationality. Id. § 1158(a)(1), (b)(1)(B)(i). They also can seek

“withholding of removal” to a country where it is more likely

than not that they would face persecution. See id. § 1231(b)(3).

In addition, the United States is a signatory to the Convention

Against Torture and so is obligated not to return individuals to

a country where they more likely than not would be tortured.

See id. § 1231 note.

To protect the Nation’s safety and security, Congress

enacted special expedited removal proceedings for noncitizens

who have been convicted of committing aggravated felonies, 8

U.S.C. § 1228(a), or are deemed to be “alien terrorist[s,]” id.

§ 1533(c)(2)(B). Even those expedited proceedings allow for

notice and an opportunity to be heard before a neutral

decisionmaker. Id. § 1229 (“In removal proceedings * * *

written notice * * *shall be given in person to the alien * * *

specifying * * * [t]he time and place at which the proceedings

will be held.”); id. § 1534(b)-(c) (“An alien who is the subject

of a removal hearing under this subchapter shall be given

reasonable notice of the nature of the charges * * * and the time

and place at which the hearing will be held[.] * * * The alien

shall have a right to be present at such hearing[.]”).

5

B

The Alien Enemies Act (“AEA”) allows the President to

“apprehend[], restrain[], secure[], and remove[]” “alien

enemies” whenever “there is a declared war between the

United States and any foreign nation or government, or any

invasion or predatory incursion” into the United States. 50

U.S.C. § 21. Alien enemies are “natives, citizens, denizens, or

subjects of the hostile nation or government, being of the age

of fourteen years and upward” who are “not actually

naturalized[.]” Id.

If there has been no formal declaration of war by Congress,

the President must make a “public proclamation[,]” 50 U.S.C.

§ 21, and “allow[]” enemy aliens a “reasonable time” to

comply with the proclamation’s orders, id. § 22. The only

exception is for enemy aliens “chargeable with actual hostility,

or other crime against the public safety[.]” Id.

Under the AEA, when a “complaint against” an “alien

enemy resident” is presented to a court of the United States, the

court’s “duty” is to provide “a full examination and hearing on

such complaint” and to decide whether there is “sufficient

cause” to have that person removed or otherwise detained. 50

U.S.C. § 23.

The AEA was one of several measures known as the Alien

and Sedition Acts passed in 1798 when the United States feared

that France was planning a military invasion. STANLEY ELKINS

& ERIC MCKITRICK, THE AGE OF FEDERALISM 588-591 (1993).

The original version of the law was introduced by pro-war

6

Federalists and it would have required federal courts to simply

fall in line and enforce the President’s order:

[A]ll Justices and Judges of the Courts of the United

States * * * shall be * * * required to discharge,

enforce, and execute the duties and authorities which

shall be incumbent upon them respectively, by virtue

of the rules and directions which, in any proclamation

or other public act, the President of the United States

shall and may make[.]

8 ANNALS OF CONG. 1786 (1798).

That language received prompt opposition from

Republicans who strongly resisted its effort to make judges “be

obedient to the will of the President” rather than “being

obedient to the laws.” 8 ANNALS OF CONG. 1789 (1798)

(statement of Rep. Gallatin). As Representative Gallatin

summarized the problem, “the whole of the bill might as well

be in two or three words, viz: ‘The President of the United

States shall have the power to remove, restrict, or confine alien

enemies and citizens whom he may consider as suspected

persons.’” Id.

That original version of the Act was quickly rejected.

Congress enacted instead the provision now codified at 50

U.S.C. § 23, in which courts, when presented with a case, are

to undertake an independent examination of the asserted

authority to remove a person under the Act. An Act Respecting

Alien Enemies, ch. 66, § 3, 1 Stat. 578 (1798). As

Representative Gordon explained, the AEA as amended would

not violate “habeas corpus” because “[t]here is nothing in this

bill to prevent a person from being brought before a Judge.” 8

ANNALS OF CONG. 1985 (1798); see id. at 2026 (statement of

Rep. Harper) (“Every man seized under this law, will have a

7

right to sue out a writ of habeas corpus, and if it appear that he

is a citizen, he must be discharged.”); id. at 1967 (statement of

Rep. Bayard) (“This bill provides only for the arrestation of

persons in certain cases, and it will be competent for every

person so arrested to obtain a writ of habeas corpus.”). 1

As James Madison explained, the AEA was passed based

on Congress’s “power to declare war” and was in accord with

“the law of nations.” The Report of 1800. The Supreme Court

subsequently agreed with Madison’s assessment, holding that

the AEA is a constitutional exercise of congressional authority

to “vest[] the President” with a “war power” to manage alien

enemies during the “shooting war” and an appropriate period

thereafter. Ludecke v. Watkins, 335 U.S. 160, 165 (1948).

Before now, the AEA has been invoked only three times

during the nation’s history: the War of 1812, World War I, and

World War II. See Lockington v. Smith, 15 F. Cas. 758, 758-

759 (C.C.D. Pa. 1817) (discussing the War of 1812

1

The AEA’s counterpart was the Alien Friends Act, which gave

the President authority to remove “all such aliens as he shall judge

dangerous to the peace and safety” regardless of whether there was a

declared war or invasion. An Act Concerning Aliens, ch. 58, § 1, 1

Stat. 571 (1798). Many considered the Alien Friends Act

unconstitutional because it gave the President unreviewable

discretion to remove noncitizens. See GORDON WOOD, EMPIRE OF

LIBERTY 249-250 (2009). James Madison argued that the Alien

Friends Act was unlawful because it did not allow for “the benefits

of a fair trial[.]” James Madison, The Report of 1800 (Jan. 7, 1800),

https://perma.cc/K564-KQND. Thomas Jefferson also concluded

that the Alien Friends Act was contrary to law because it violated the

right to “due process[.]” Kentucky General Assembly, Resolutions

Adopted by the Kentucky General Assembly (Nov. 10, 1798),

https://perma.cc/7JL4-N86T. No one was ever removed under the

Alien Friends Act and it expired in 1800. AGE OF FEDERALISM, at

591-592.

8

proclamation); Proclamation, 40 Stat. 1651 (1917) (World War

I); Proclamation: Alien Enemies—Japanese, 6 Fed. Reg. 6,321

(Dec. 10, 1941) (World War II). 2

Judicial review has always been available to noncitizens

detained or removed under the AEA. During the War of 1812,

Chief Justice John Marshall and federal District Judge St.

George Tucker ordered a British subject released because the

local marshal had acted beyond his delegated authority by

detaining the plaintiff without proper notice. See Gerald

Neuman & Charles Hobson, John Marshall and the Enemy

Alien, 9 GREEN BAG 39, 41-43 (2005) (describing the

unreported case of United States v. Thomas Williams (C.C.D.

Va. 1813)). The Pennsylvania Supreme Court later agreed with

the Chief Justice that those subject to the AEA are entitled to

judicial review. Lockington’s Case, Bright (N.P.) 269, 273,

285 (Pa. 1813).

These early cases set a precedent followed during the

twentieth century. Review was available during World War I,

see, e.g., Ex parte Gilroy, 257 F. 110, 114 (S.D.N.Y. 1919), as

well as World War II, e.g., Ludecke v. Watkins, 335 U.S. 160,

172 (1948) (“[H]earings are utilized by the Executive to secure

an informed basis for the exercise of summary power[.]”).

Indeed, during World War II, a former “member of the Nazi

Party” not only received a hearing on his eligibility for

removal, but also had his case heard by the Supreme Court.

Ludecke, 335 U.S. at 162 n.3.

2

The AEA has been amended once when, during World War I,

language clarified that it applied to both men and women. An Act to

amend section four thousand and sixty-seven of the Revised Statutes

by extending its scope to include women, ch. 55, 40 Stat. 531 (1918).

9

As the court in Gilroy explained, “[v]ital as is the necessity

in time of war not to hamper acts of the executive in the defense

of the nation and in the prosecution of the war, of equal and

perhaps greater importance, is the preservation of

constitutional rights.” 257 F. 110 at 114.

II

A

Tren de Aragua (“TdA”) is a violent transnational criminal

organization based in Venezuela. See United States

Department of State, Designation of International Cartels,

(Feb. 20, 2025), https://perma.cc/XJ7F-GY8U. The State

Department designated TdA a foreign terrorist organization on

February 20, 2025. See id.

Although not publicly disclosed at the time, on March 14,

2025, President Trump signed a Proclamation invoking the

Alien Enemies Act in response to “the Invasion of the United

States by Tren De Aragua.” See Invocation of the Alien

Enemies Act Regarding the Invasion of the United States by

Tren De Aragua, 90 Fed. Reg. 13033 (Mar. 14, 2025). The

Proclamation was not released publicly until March 15, 2025,

at 3:53 pm ET. See id; ECF No. 28-1 (Cerna Decl.) ¶ 5. 3

The Proclamation “find[s] and declare[s] that TdA is

perpetrating, attempting, and threatening an invasion or

predatory incursion against the territory of the United States[,]”

and that “TdA is undertaking hostile actions and conducting

irregular warfare against the territory of the United States both

directly and at the direction, clandestine or otherwise, of the

3

All ECF documents refer to the district court docket in this

case, J.G.G. v. Trump, No. 25-cv-766 (D.D.C. Mar. 18, 2025).

10

Maduro regime in Venezuela.” Proclamation § 1. Based on

these findings, the Proclamation provides that “all Venezuelan

citizens 14 years of age or older who are members of TdA, are

within the United States, and are not actually naturalized or

lawful permanent residents of the United States are liable to be

apprehended, restrained, secured, and removed as Alien

Enemies.” Proclamation § 1. The Proclamation further

“direct[s] that all Alien Enemies described in * * * th[e]

proclamation are subject to immediate apprehension,

detention, and removal, and further that they shall not be

permitted residence in the United States.” Proclamation § 3.

The Proclamation directs the Attorney General and the

Secretary of Homeland Security to execute these directives.

Proclamation § 4.

The Proclamation does not establish any process by which

individuals are given notice of the government’s determination

that they meet the Proclamation’s criteria and are therefore

removable to a country of the government’s choosing. Nor

does the Proclamation establish any process by which

individuals may challenge the government’s determination that

they meet the Proclamation’s criteria. Instead, upon the

government’s determination that an individual meets the

Proclamation’s criteria, that individual is subject to

“immediate” removal, without notice and without time or

opportunity to challenge their removal. Proclamation § 3.

B

Plaintiffs are a class of Venezuelan nationals in

government custody who the government claims are subject to

removal under the Proclamation. Plaintiffs are in the United

States without permission or lawful documentation and, as a

result, most if not all are already in immigration detention

centers across the United States pending immigration hearings

11

or removal proceedings. But beginning in March 2025, at least

some of them were moved to the El Valle Detention Facility in

Texas. See ECF No. 3-3 (J.G.G. Decl.) ¶ 5; ECF No. 3-4

(Carney Decl. for G.F.F.) ¶ 12; ECF No. 3-5 (Shealy Decl. for

J.G.O.) ¶ 5; ECF No. 3-6 (W.G.H. Decl.) ¶ 7; ECF No. 3-8

(J.A.V. Decl.) ¶ 7; ECF No. 44-6 (Thierry Decl.) ¶ 5; ECF No.

44-8 (Kim Decl.) ¶ 5. The government was unable to inform

this court whether all individuals subject to the Proclamation

have been moved to the El Valle Detention Facility, or whether

they are scattered across detention centers around the country.

Oral Arg. 1:47:43.

Apparently having caught wind of the forthcoming

Proclamation and the summary removals planned under it, in

the early morning hours of March 15, 2025, five named

Plaintiffs filed in the United States District Court for the

District of Columbia a class action complaint and petition for

writ of habeas corpus, and a motion for a Temporary

Restraining Order (“TRO”) against the President, Attorney

General, Department of Homeland Security, Immigration and

Customs Enforcement, and Department of State. See ECF No.

1 (Complaint); ECF No. 3 (TRO Motion). Plaintiffs allege that

their expected summary removal would be unlawful because

the Proclamation violated the terms of the AEA, bypassed the

procedures set forth for removal in the Immigration and

Nationality Act, violated the Administrative Procedure Act

(“APA”), and deprived the Plaintiffs of constitutionally

required due process to challenge their eligibility for removal.

See ECF No. 1 (Complaint).

All five of the named Plaintiffs vehemently deny that they

are members of TdA. See ECF No. 3-3 (J.G.G. Decl.) ¶ 3; ECF

No. 44-11 (Carney Decl. for G.F.F.) ¶ 3; ECF No. 44-12

(Smyth Decl. for J.A.V.) ¶¶ 9, 11; ECF No. 3-6 (W.G.H. Decl.)

¶ 12; ECF No. 44-9 (Shealy Decl. for J.G.O.) ¶ 4. Several of

12

the named Plaintiffs state, in fact, that they sought asylum in

part because they themselves were victims targeted by TdA and

other gangs. See ECF No. 44-11 (Carney Decl. for G.F.F.) ¶ 3;

ECF No. 44-12 (Smyth Decl. for J.A.V.) ¶ 5; ECF No. 3-6

(W.G.H. Decl.) ¶¶ 3, 11, 12.

According to Plaintiffs’ declarations, the government has

accused one named Plaintiff, who is a tattoo artist, of TdA

membership on the basis of his tattoo design, which was

sourced from Google. ECF No. 3-3 (J.G.G. Decl.) ¶ 4. Other

individuals subject to the Proclamation have also denied

membership in TdA and have stated that the government has

wrongly accused them of TdA membership based on tattoos

that have no connection to TdA. See, e.g., ECF No. 44-5

(Tobin Decl.) ¶ 7 (declaring that individual is a Venezuelan

professional soccer player with a tattoo of a soccer ball with a

crown, similar to the logo of his favorite soccer team, Real

Madrid). The government also accused another named Plaintiff

of TdA membership because he attended a party where he

knew no one other than the person who invited him. ECF No.

3-4 (G.F.F. Decl.) ¶¶ 5-6.

At 9:20 am ET, on the morning of March 15, 2025, the

district court “contacted the [g]overnment and connected with

defense counsel[.]” J.G.G. v. Trump, No. 25-cv-766 (JEB),

2025 WL 890401, at *6-7 (D.D.C. Mar. 24, 2025). At 9:40 am

ET, the district court granted Plaintiffs’ motion for a TRO

which prohibited the government from removing the five

named Plaintiffs based on the Proclamation for fourteen days

absent further order from the district court. Second Minute

Order (Mar. 15, 2025). That same day, the government

appealed the district court’s TRO and filed an emergency

motion to stay the TRO in this court. The district court also set

an emergency hearing for 5:00 pm ET that day to consider

whether to issue a TRO as to the entire class of individuals

13

whom the government asserts are subject to removal under the

Proclamation.

Despite Plaintiffs’ lawsuit and the district court’s order

setting a hearing for that afternoon, the government seems to

have begun the removal process that morning. See ECF No.

44-9 (Shealy Decl.) ¶ 8; ECF No. 44-10 (Quintero Decl.) ¶ 3;

ECF No. (Carney Decl.) ¶¶ 12-13; ECF No. 44-12 (Smyth

Decl.) ¶ 14. By 9:20 am ET, at least one named Plaintiff,

J.G.O., had been taken to an airport along with other

Venezuelans. ECF No. 44-9 (Shealy Decl.) ¶ 8.

On the afternoon of March 15, 2025, the district court held

a hearing on Plaintiffs’ class certification motion. During the

hearing, Plaintiffs represented that two flights “were scheduled

for this afternoon that may have already taken off or [will]

during this hearing.” See Mar. 15 Tr. 12:23-25. In response,

at 5:22 pm ET, the court adjourned the hearing and directed the

government to determine whether removal of individuals under

the Proclamation was underway. Around 6:00 pm ET, the

district court resumed, and the government represented that it

had no flight information to report to the court. See Mar. 15

Tr. 15:4-18:8. During the hearing, the district court also

allowed Plaintiffs to dismiss their habeas claims without

prejudice. See Mar. 15 Tr. 22:24-25.

The district court then provisionally certified a class of all

Venezuelan noncitizens subject to the Proclamation. See Mar.

15 Tr. 23:1-4, 25:9-10. At approximately 6:45 pm ET, the

district court issued an oral TRO prohibiting the government

from removing members of the class pursuant to the

Proclamation for fourteen days absent further order from the

district court. See Mar. 15 Tr. 41:18-21. The court also

directed the government “that any plane containing”

individuals subject to the Proclamation “that is going to take

14

off or is in the air needs to be returned to the United States[.]”

Mar. 15 Tr. 43:12-15. The district court emphasized that “this

is something that [the government] need[ed] to make sure

[was] complied with immediately.” Mar. 15 Tr. 43:18-19.

The court issued a written TRO at approximately 7:25 pm

ET. See Fourth Minute Order (Mar. 15, 2025); ECF No. 21

(Plaintiffs’ Response to Defendants’ Notice) at 1-2. As

relevant here, that order provides: “Plaintiffs’ Motion for Class

Certification is GRANTED insofar as a class consisting of ‘All

noncitizens in U.S. custody who are subject to the March 15,

2025, Presidential Proclamation entitled “Invocation of the

Alien Enemies Act Regarding the Invasion of The United

States by Tren De Aragua” and its implementation’ is

provisionally certified; [] The Government is ENJOINED from

removing members of such class (not otherwise subject to

removal) pursuant to the Proclamation for 14 days or until

further Order of the Court[.]” Fourth Minute Order (Mar. 15,

2025). The court then set a highly expedited schedule for the

government to seek vacatur of the TROs. Id.

In so ruling, the district court was explicit that its order did

not affect the government’s ability to apprehend or detain

individuals pursuant to the Proclamation, nor did it require the

government to release any individual in its custody subject to

the Proclamation. Mar. 15 Tr. 42:16-18; Mar. 21 Tr. 9:2-16;

J.G.G., 2025 WL 890401, at *1. In addition, neither TRO

prevented the government from deporting any individual on the

basis of authorities other than the Proclamation, including

under the Immigration and Nationality Act. Mar. 15 Tr. 47:5-

8; J.G.G., 2025 WL 890401, at *1; see also ECF No. 28-1

(Cerna Decl.) ¶ 6 (government informing the court that a plane

“departed after” the district court’s TRO, “but all individuals

on that third plane had Title 8 final removal orders and thus

15

were not removed solely on the basis of the Proclamation at

issue”).

C

Questions of the government’s compliance with the TROs

soon arose, which the district court continues to investigate.

See Second Minute Order (Mar. 18, 2025); ECF No. 47

(District Court Order dated Mar. 20, 2025); ECF No. 49

(Notice filed by Gov’t dated Mar. 20, 2025); ECF No. 50

(Notice filed by Gov’t dated Mar. 21, 2025); ECF No. 56

(Notice filed by Gov’t dated Mar. 24, 2025).

In those proceedings, the government has taken the

position that it was not legally bound by and had no obligation

to obey the district court’s oral orders directing the return of

airplanes in flight. The government’s repeated position in

district court has been that those oral orders had no legal force

until reduced to writing. See ECF No. 24 (Gov’t Mot. to

Vacate) at 2 (“[A]n oral directive is not enforceable as an

injunction.”); Mar. 17 Tr. 16:12-14 (“Oral statements are not

injunctions and [] the written orders always supersede whatever

may have been stated in the record[.]”); id. at 17:20-21 (“[O]ral

statements are not injunctions[.]”); see also Mar. 21 Tr. 4:18-

19, 6:4-5 (district court noting the government’s position that

the oral ruling was not binding); Oral Arg. 1:48:24-1:49:19.

On March 24, 2025, the district court denied the

government’s motion to vacate the TROs. The district court

found that Plaintiffs are likely to succeed on their claim that

either the Proclamation or its implementation are unlawful

under the AEA and unconstitutional for failure to provide

Plaintiffs with any advance opportunity to challenge whether

they qualify for removal under the Proclamation’s terms. See

J.G.G., 2025 WL 890401, at *3.

16

III

The government asks this court to stay the TROs. I agree

with Judge Henderson that a stay should be denied. There is

an unsurmountable jurisdictional barrier to the government’s

request for a stay, and the government’s own threshold

jurisdictional arguments fail. In addition, the balance of harms

weighs strongly in favor of the Plaintiffs.

A

1

A stay pending appeal is an “extraordinary” remedy.

Citizens for Resp. & Ethics in Washington v. Federal Election

Comm’n, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam).

To obtain such exceptional relief, the stay applicant must (1)

make a “strong showing that [it] is likely to succeed on the

merits” of the appeal; (2) demonstrate that it will be

“irreparably injured” before the appeal concludes; (3) show

that issuing a stay will not “substantially injure the other

parties” interested in the proceeding; and (4) establish that “the

public interest” favors a stay. Nken v. Holder, 556 U.S. 418,

434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776

(1987)).

Here, the standard for obtaining a stay is even more

daunting. That is because this court has no jurisdiction to hear

an appeal from a temporary restraining order, making any

claim of likelihood of success vanishingly low. See Belbacha

v. Bush, 520 F.3d 452, 455 (D.C. Cir. 2008); see also

Brotherhood of Railway & S. S. Clerks, Freight Handlers, Exp.

& Station Emp. v. National Mediation Bd., 374 F.2d 269, 275

(D.C. Cir. 1966) (“A stay pending appeal is always an

17

extraordinary remedy, and it is no less so when extraordinary

jurisdiction must be asserted as a prerequisite.”).

By statute, “our appellate jurisdiction generally extends

only to the ‘final decisions’ of district courts.” Salazar ex rel.

Salazar v. District of Columbia, 671 F.3d 1258, 1261 (D.C. Cir.

2012) (quoting 28 U.S.C. § 1291). There is an exception to that

finality requirement for “[i]nterlocutory orders * * * granting,

continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions.” 28 U.S.C.

§ 1292(a)(1). But that provision encompasses “injunctions”

only. See United States v. Hubbard, 650 F.2d 293, 314 n.73

(D.C. Cir. 1980). There “is no [equivalent] statutory provision

for the appeal of a temporary restraining order.” Dellinger v.

Bessent, No. 25-5028, 2025 WL 559669, at *4 (D.C. Cir. Feb.

15, 2025) (quoting Wright & Miller, Fed. Prac. & Proc. Civ.

§ 2951 (3d ed. June 2024 update)).

As a result, we can review a TRO only if the appellant can

show that the order is the legal equivalent of a preliminary

injunction. See Belbacha, 520 F.3d at 455. The “label attached

to an order by the trial court is not decisive[,]” and instead

appellate courts must “look to other factors” to determine

whether a TRO should be treated as a preliminary injunction.

Adams v. Vance, 570 F.2d 950, 953 (D.C. Cir. 1978) (citation

omitted).

Among those factors, we assess whether the TRO (1)

remains in force longer than the time permitted for such an

order under Federal Rule of Civil Procedure 65, Sampson v.

Murray, 415 U.S. 61, 86 (1976); (2) “foreclose[s]” the

appellant “from pursuing further interlocutory relief in the form

of a preliminary injunction,” Belbacha, 520 F.3d at 455

(citation omitted); or (3) otherwise upsets “the status quo

18

pending further proceedings” in ways that have “irretrievable”

consequences, Adams, 570 F.2d at 953.

The government has not shown that any of those

exceptions apply.

First, the TROs fall well within the 14-day time length

(extendable for another 14 days for “good cause”) allowed by

Federal Rule of Civil Procedure 65. FED. R. CIV. P. 65(b)(2).

The district court has been handling this complicated matter

with speed and diligence, and has directed the Plaintiffs to file

any motion to convert the TROs into a preliminary injunction

by March 26, 2025, which is a date within the original 14-day

time period for the TROs. When a district court arranges for a

“prompt hearing on a preliminary injunction[,]” this court does

not short-circuit that process and treat a TRO as a “de facto”

injunction. Office of Pers. Mgmt. v. American Fed’n of Gov’t

Emps., AFL-CIO, 473 U.S. 1301, 1305 (1985) (Burger, C.J., in

chambers). 4

Second, the government does not even argue that the TROs

have somehow impaired its ability to pursue injunctive relief

of its own. So that avenue for appeal of the TROs is closed.

Third, the district court’s TROs are carefully tailored just

to preserve the status quo while the court obtains briefing and

the factual development needed to rule on a motion for a

preliminary injunction. In removal cases, the status quo is the

“state of affairs before the removal order was entered.” Nken,

556 U.S. at 418 (“Although such a stay acts to ‘ba[r] Executive

Branch officials from removing [the applicant] from the

4

For those reasons, the government’s argument that the TROs

amount to preliminary injunctions because they are slated to last 14

days is without merit. Gov’t First Stay Mot. 3-5.

19

country,’ * * * it does so by returning to the status quo[.]”)

(citation omitted). That status quo is the time before the

Proclamation and removals under it commenced. See also

Huisha-Huisha v. Mayorkas, 27 F.4th 718, 734 (D.C. Cir.

2022) (“[T]he status quo [i]s ‘the last peaceable uncontested

status’ existing between the parties before the dispute

developed.”) (quoting 11A Wright & Miller § 2948 (3d ed.

1998)).

Importantly, the district court has tailored its TROs to

operate even more narrowly than the status quo by allowing the

apprehension and detention of alleged TdA members under the

Proclamation, proscribing only their removal under the AEA.

Mar. 15 Tr. 42:16-18 (ordering a TRO “to prevent the removal

of the class for 14 days”); Mar. 21 Tr. 9:2-16 (underscoring that

the TROs allow the government to keep Plaintiffs “in-custody”

and do “not order anybody to be released into the United

States”); J.G.G., 2025 WL 890401, at *1 (“Neither Order

prevented the Government from apprehending anyone

pursuant to the * * * Proclamation.”). In addition, the court has

been explicit that nothing in the TROs prohibits removals

based on other legal grounds such as the Immigration and

Nationality Act. Mar. 15 Tr. 47:5-8; J.G.G., 2025 WL 890401,

at *1 (“[N]either Order prevented the Government from

deporting anyone—including Plaintiffs—through

authorities other than the Proclamation, such as the INA.”).

In those ways, this case bears no resemblance to Adams v.

Vance, supra, on which the government hangs its jurisdictional

hat. Gov’t First Stay Mot. 5; Gov’t Second Stay Mot. 9. In

Adams, this court treated a TRO as a preliminary injunction

because, instead of “preserv[ing] the status quo pending further

proceedings,” it “commanded an unprecedented action

irreversibly altering [a] delicate diplomatic balance” in the

“arena” of international restrictions on whale hunting. 570

20

F.2d at 953. In particular, that TRO would have forced the

Secretary of State to file a formal “objection” to an action of

the International Whaling Commission. Id.

The TROs at issue here are the polar opposite. Rather than

compelling Executive action, they simply stay the

government’s hand in part.

2

The government nonetheless argues that the TROs should

be treated as injunctions because they work “an extraordinary

harm” to the President’s authority under Article II to conduct

foreign affairs. Gov’t First Stay Mot. 4; Gov’t Second Stay

Mot. 8. But the government has shown no such harm here, and

its own arguments weigh against it.

To start, as noted above, the TROs do not affect the

government’s ability to remove deportable individuals under

federal laws other than the AEA or to detain and arrest anyone

who is a threat to national or domestic security. So the only

potential harm is the temporary inability to remove individuals

under the AEA and Proclamation.

As to that limitation, the government agrees that

individuals are entitled to challenge in court whether they fall

within the terms of the AEA or are otherwise not lawfully

removable under it. Oral Arg. 1:41:55-1:42:28, 1:42:50-

1:43:12. Indeed, the government repeatedly points to

unidentified habeas corpus litigation in Texas raising those

very types of claims. Oral Arg. 19:46-20:10, 20:30-20:50,

22:14-22:20, 31:00-31:40.

Given that the government agrees that removal can be

delayed to allow for due process review in habeas consistent

21

with national security, the same must be true in this courthouse.

Certainly the government has given no reason that the delays

occasioned by these TROs affect national security in a way

different than the removal delays associated with the habeas

corpus cases of which it procedurally approves. And, if the

government were correct in concluding that AEA removal

challenges could be brought in habeas, that litigation could

afford the same relief from imminent removal sought here. So

the government has not shown how the nature of the relief

afforded in these TROs itself somehow impacts national

security.

The government’s last national security objection is that

the district court’s oral order on March 15th to turn around

airplanes removing class members under the AEA was the

equivalent of a court ordering a carrier group to redeploy from

the South China Sea. Oral Arg. 1:03-1:12.

A TRO directing military deployments or maneuvers

certainly would raise profound separation of powers questions

warranting the most careful consideration and remediation.

But nothing remotely like that happened here. The district

court’s TROs only directed immigration officials to preserve

their custody, and thus the court’s jurisdiction, over the

Plaintiffs. The government does not dispute that the Plaintiffs

on the non-military planes and the planes themselves were fully

under its control at the time of the court’s oral order. See Munaf

v. Geren, 553 U.S. 674, 686 (2008) (“An individual is held ‘in

custody’ by the United States when the United States official

charged with his detention has ‘the power to produce’ him.”)

(quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)); see

also Braden v. Thirtieth Judicial Circuit Court of Kentucky,

410 U.S. 484, 489 n.4 (1973) (petitioner can be “in custody” of

an entity through that entity’s agent); Umanzor v. Lambert, 782

F.2d 1299, 1302 (5th Cir. 1986) (stating that there was “little

22

difficulty in concluding” that habeas petitioner was “in

custody” where petitioner “was under actual physical restraint

by the government’s agent—the airline” and noting that

petitioner “was imprisoned inside of the aircraft, against his

will, until the aircraft completed the flight and he was

released[]”).

Even more to the point, the government’s persistent theme

for the last ten days has been that the district court’s oral

direction regarding the airplanes was not a TRO with which it

had to comply. See ECF No. 24 (Gov’t Mot. to Vacate) at 2

(“[A]n oral directive is not enforceable as an injunction.”);

Mar. 17 Tr. 16:12-14 (“Oral statements are not injunctions and

[] the written orders always supersede whatever may have been

stated in the record[.]”); id. at 17:20-21 (“[O]ral statements are

not injunctions[.]”); see also Mar. 21 Tr. 4:18-19, 6:4-5

(district court noting the government’s position that the oral

ruling was not binding); Oral Arg. 1:48:24-1:49:19.

I leave the merits of that argument for the district court to

resolve in the first instance. But the one thing that is not

tolerable is for the government to seek from this court a stay of

an order that the government at the very same time is telling

the district court is not an order with which compliance was

ever required. Heads the government wins, tails the district

court loses is no way to obtain the exceptional relief of a TRO

stay. 5

5

See New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (A

party may not “prevail[] in one phase of a case on an argument and

then rely[] on a contradictory argument to prevail in another phase.”)

(citation omitted); Solo v. United Parcel Serv. Co., 947 F.3d 968, 972

n.2 (6th Cir. 2020) (positions in district court and on appeal cannot

be contradictory).

23

Next, the government claims that the TROs “risk[]

scuttling delicate international negotiations” providing for the

removal of Plaintiffs to Venezuela and El Salvador. Gov’t

Second Stay Mot. 9; ECF No. 26-2 (Kozak Decl.) ¶¶ 2-4. The

government then says that “removal delayed tends to become

removal denied.” Gov’t Reply 3.

But the government’s arguments keep running into

themselves. The government has no objection on diplomatic

grounds to removal delays while individualized review of

whether a noncitizen falls within the Proclamation’s own terms

is under way. At least as long as it is a habeas action. But once

again, we are lacking any explanation as to why the Plaintiffs’

APA claim challenging the government’s across-the-board

failure to allow any opportunity for that review is somehow a

different strain on diplomatic relations. At bottom, the TROs’

purpose is to ensure that justice is neither delayed nor denied

to Plaintiffs.

In addition, the government does not explain why there

would be any possible breakdown in diplomatic discussions

over ensuring that removed individuals are, in fact, members

of TdA. Surely the government claims no diplomatic interest

in sending individuals to El Salvador or Venezuela who are not

members of TdA and so are not covered by the Proclamation.

See Proclamation § 1 (invoking authority over “Venezuelan

citizens 14 years of age or older who are members of TdA”)

(emphasis added). I will not put the cart before the horse and

rely on a harm that assumes the very fact Plaintiffs vigorously

contest.

3

There is yet another (non-jurisdictional) procedural

problem with the government’s request for a stay. Appellate

24

Litigation 101 requires parties seeking a stay from this court to

first request one from the district court. FED. R. APP. P. 8(a)(2);

Powder River Basin Res. Council v. United States Dep’t of

Interior, No. 24-5268, 2025 WL 312649, at *1 (D.C. Cir. Jan.

24, 2025) (per curiam); Teva Pharms. USA, Inc. v. Food &

Drug Admin., No. 05-5401, 2005 WL 6749423, at *1 (D.C. Cir.

Nov. 16, 2005) (per curiam).

The government is fully familiar with that requirement. In

fact, the government routinely asks this court to dismiss stay

requests by other parties for failure to seek a stay below, see

Gov’t Br. 9, Vertical Aviation Int’l, Inc. v. Federal Aviation

Auth., No. 25-1017 (D.C. Cir. Mar. 19, 2025); Gov’t Br. 8,

Frontier Airlines, Inc. v. Department of Transp., No. 25-1002

(D.C. Cir. Feb. 6, 2025); Gov’t Br. 10, Bull v. Drug Enf.

Agency, No. 13-1279 (D.C. Cir. Nov. 20, 2013), and we

commonly agree, see Vertical Aviation Int’l, Inc. v. Federal

Aviation Auth., No. 25-1017 at 1 (D.C. Cir. Mar. 19, 2025);

Frontier Airlines, Inc. v. Department of Transp., No. 25-1002

at 1 (D.C. Cir. Feb. 6, 2025); Bull v. Drug Enf,. Agency, No.

13-1279 at 1 (D.C. Cir. Nov. 20, 2013).

Yet the government completely failed to seek stays of the

TROs from the district court at all. Not for lack of time. It has

had more than a week to do so. And not for temporarily

forgetting the requirement. It has openly flagged its

noncompliance in its briefs. Gov’t First Stay Mot. 4 n.1; Gov’t

Second Stay Mot. 8 n.1. There are occasional exceptions to

seeking a stay in district court, but the government has argued

none of them here.

I would deny the stay on this additional ground. The

government needs to play by the same rules it preaches. And

it needs to respect court rules.

25

B

While the government has not demonstrated a likelihood

of establishing jurisdiction over its appeals and request for a

stay of the TROs, a majority of this panel has concluded

otherwise. Given that resolution, I address why the

government’s own threshold arguments challenging the district

court’s jurisdiction also are unlikely to succeed.

1

a

The government argues that Plaintiffs’ case is non-

justiciable because the Executive Branch’s interpretation of the

AEA as applying to the removal of members of a criminal gang

is a judicially unreviewable political question. Gov’t First Stay

Mot. 4.

I note at the outset that the government’s argument does

not suggest that the Plaintiffs’ constitutional entitlement to

notice and some opportunity for pre-removal due process is a

political question. So this argument by the government does

not actually affect the district court’s jurisdiction to enter the

TROs.

Anyhow, political questions are decisions committed by

the Constitution to the discretion of the Political Branches or

lacking judicially manageable standards of review. See

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 197-198

(2012) (Zivotofsky I). Although federal courts must account for

prudential considerations when deciding whether an issue

constitutes a political question, see Baker v. Carr, 369 U.S.

186, 217 (1962), the Constitution’s assignment of

responsibilities and the feasibility of judicial review are “the

26

most important” factors, Schieber v. United States, 77 F.4th

806, 810 (D.C. Cir. 2023), cert. denied, 144 S. Ct. 688 (2024).

The gravamen of the government’s position is that the

President has total and unreviewable authority to decide

whether the statutory prerequisites for invoking the AEA are

met in Plaintiffs’ case. This includes deciding whether TdA is

a “foreign nation or government” and whether its actions

amount to an “invasion or predatory incursion” into the United

States. 50 U.S.C. § 21.

That argument is not likely to succeed. The judiciary, not

the Executive, has the ultimate constitutional responsibility and

capacity for saying what statutes and statutory terms mean.

Under the Constitution, federal courts are vested with the

“judicial Power of the United States[,]” U.S. CONST. Art. III,

§ 1, and “[i]t is emphatically the province and duty of the

judicial department to say what the law is.” Marbury, 5 U.S.

at 177. “When the meaning of a statute [is] at issue, the judicial

role [is] to ‘interpret the act of Congress, in order to ascertain

the rights of the parties.’” Loper Bright Enterprises v.

Raimondo, 603 U.S. 369, 385 (2024) (quoting Decatur v.

Paulding, 39 U.S. 497, 515 (1840)).

In addition, statutory interpretation is judicially

manageable because it does not require courts to exercise “their

own political judgment[.]” Rucho v. Common Cause, 588 U.S.

684, 705 (2019). Instead, the judicial “task is to discern and

apply the law’s plain meaning as faithfully” as possible. BP

P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532,

1542 (2021). Because questions about meaning are objectively

discernible from statutory text and context, courts can decide

them “by applying their own judgment.” Loper Bright, 603

U.S. at 392.

27

That is why the “Supreme Court has never applied the

political question doctrine in cases involving statutory claims

of this kind.” El-Shifa Pharm. Indus. Co. v. United States, 607

F.3d 836, 855 (D.C. Cir. 2010) (Kavanaugh, J., concurring in

the judgment). Instead, the Court has emphasized that whether

to “enforce a specific statutory right” is “a familiar judicial

exercise,” not a political question. Zivotofsky I, 566 U.S. at

196.

That remains true even if the statute’s subject concerns

foreign or military affairs. Zivotofsky, 566 U.S. at 196

(statutory right to passport designation implicating diplomatic

status of Jerusalem is not a political question). Indeed, “[i]t is

error to suppose that every case or controversy which touches

foreign relations lies beyond judicial cognizance.” Baker, 369

U.S. at 211. Many legal questions arising from statutes

involving foreign policy are not political questions. 6 And

many cases require courts to decide whether the plaintiff has a

statutory right based on terms like “war,” “peace,” and

“hostilities” abroad. See Lee v. Madigan, 358 U.S. 228, 229

(1959); Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140-141

(1948); Ludecke, 335 U.S. at 166-167; Al-Alwi v. Trump, 901

F.3d 294, 300 (D.C. Cir. 2018).

6

See Zivotofsky I, 566 U.S. at 194; Japan Whaling Association

v. American Cetacean Society, 478 U.S. 221, 229 (1986); Trans

World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 254 n.25

(1984); Al-Tamimi, 916 F.3d at 13; Schieber, 77 F.4th at 812; Simon

v. Republic of Hungary, 812 F.3d 127, 150 (D.C. Cir. 2016),

abrogated on other grounds by Federal Republic of Germany v.

Philipp, 592 U.S. 169 (2021); Wilson v. Libby, 535 F.3d 697, 703-

704 (D.C. Cir. 2008); DKT Memorial Fund, Ltd. v. Agency for

International Dev., 810 F.2d 1236, 1238 (D.C. Cir. 1987);

Population Institute v. McPherson, 797 F.2d 1062, 1068 (D.C. Cir.

1986).

28

This case fits that same apolitical, statutory-construction

mold. The parties disagree about the meaning of words. For

example, relying on dictionaries from when the AEA was

written, the plaintiffs argue that the word “invasion” means

“entrance of a hostile army[.]” Pls’ Br. 21 (citing Webster’s

Dictionary, Invasion (1828)). By contrast, the government

cites a modern dictionary defining “invasion” as the “arrival

somewhere of people or things who are not wanted[.]” Gov’t

First Stay Mot. 12 (citing Black’s Law Dictionary, Invasion

(12th ed. 2024)). The judiciary can resolve this disagreement

with settled tools of statutory construction.

To be sure, other non-interpretive parts of the

Proclamation may involve expert and discretionary judgments.

For example, whether a criminal gang has infiltrated a foreign

government so deeply that it has become a part of that

government itself may well be a judgment for the Political

Branches to make. Cf. Zivotofsky ex rel. Zivotofsky v. Kerry,

576 U.S. 1, 28 (2015) (deciding political status of Jerusalem is

a political question); Oetjen v. Century Leather Co., 246 U.S.

297, 302 (1918) (determining government of Mexico is a

political question); Jones v. United States, 137 U.S. 202, 212

(1890) (determining sovereignty over Guano Islands is a

political question); Lin v. United States, 561 F.3d 502, 506

(D.C. Cir. 2009) (determining sovereignty over Taiwan is a

political question); U.S. CONST. Art. II, § 3 (The President

“shall receive Ambassadors and other public Ministers[.]”).

But once those decisions are made, determining whether the

political answer falls within the meaning of a statutory term is

the job of the Judicial Branch.

29

b

The government’s efforts to shoehorn the statutory

interpretation questions in this case into the political-question

doctrine are unlikely to succeed.

First, the government argues that the Supreme Court

foreclosed judicial review of the AEA’s meaning in Ludecke.

Actually, the Supreme Court said the opposite. Ludecke,

which is the only Supreme Court case interpreting the AEA,

said that courts may not “pass judgment upon the exercise of

[the President’s] discretion” when invoking the AEA. 335 U.S.

at 164. But the discretion to which the Court referred was the

President’s judgment whether, in the conduct of a war, to

invoke the Act and, if so, whether to remove, relocate, or just

detain alien enemies. Ludecke, 335 U.S. at 164-169.

But the separate issue of what the AEA’s text means is a

question of law, not discretion. That is why the Supreme Court

specifically held that the AEA’s “interpretation and

constitutionality” are matters to be decided by federal courts.

Ludecke, 335 U.S. at 163-164. In fact, the central question

resolved by the Supreme Court was whether the term “war” in

Section 21 of the Act requires ongoing hostilities for the AEA

to remain in force. Id. at 166-167. The Court engaged in

statutory construction and held that, even if the shooting has

stopped, the relevant state of “war” continues until the Political

Branches terminate the Nation’s state of war. Id. at 167-169.

So Ludecke conclusively held—and showed—that interpreting

30

the meaning of the AEA’s words falls within the Judicial

Branch’s wheelhouse. 7

Second, the government maintains that whether there has

been an “invasion or predatory incursion” of the United States

and whether TdA is a “foreign nation or government” are

committed to the President’s discretion. Not likely.

For one, this case does not require the court to “supplant a

foreign policy decision” with its own “unmoored determination

of what United States policy” should be. Zivotofsky I, 566 U.S.

at 196. Instead, the district court is assessing whether

exceptional removal procedures are available for alleged

members of TdA under the AEA. The Supreme Court

addressed the same question for German nationals in Ludecke.

335 U.S. at 166-167. There, the Supreme Court decided what

“war” means under the AEA. This case involves what the

neighboring terms “invasion” and “incursion” mean. 50 U.S.C.

§ 21. How the President should combat the dangers posed by

TdA, whether to treat TdA as an arm of the Venezuelan state,

and whether to remove or detain qualifying TdA’s members are

not questions under review, any more than the President’s

conduct of World War II was under review in Ludecke. All the

district court is deciding is whether the AEA permits the

government to deny Plaintiffs all pre-removal notice and due

process. Resolving that issue is a core judicial responsibility.

See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004).

7

The government also claims that this court held that AEA

claims are non-justiciable in Citizens Protective League v. Clark, 155

F.2d 290 (D.C. Cir. 1946). Not so. Citizens Protective League ruled

on the merits of a constitutional challenge to the AEA, concluding

that the “Alien Enemy Act is constitutional[.]” Id. at 293. Any

contrary suggestion in the opinion regarding the non-justiciability of

statutory interpretation issues was superseded by Ludecke.

31

In addition, the government is mistaken about the extent

of unilateral Executive authority under the Constitution. An

assertion of exclusive Executive authority is “the least

favorable of possible constitutional postures” and it runs

aground here on the express constitutional assignment of

relevant authority to Congress. Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J. concurring).

For it is Congress that has the power to “repel Invasions[,]”

U.S. CONST. Art. I, § 8, cl. 15, and retains “plenary authority”

over noncitizens, INS v. Chadha, 462 U.S. 919, 940 (1983); see

U.S. CONST. Art. I, § 8, cl. 4. While the “United States” must

“protect each” state “against Invasion,” nothing in the

Constitution assigns this responsibility exclusively to the

President. Id. Art. IV, § 4, and, in fact, Article I indicates

otherwise, id. Art. I, § 8, cl. 15 (giving Congress the power to

repel invasions).

To be sure, the President enforces laws that Congress

makes on these subjects because the President must “take Care

that the Laws be faithfully executed[.]” U.S. CONST. Art. II,

§ 3. But that authority is bounded by the statutory limits

Congress has set in the AEA, and determining what those

statutory terms mean is a judicial responsibility. Id. Art. III,

§ 1. This is so even for questions concerning war and

international aggression. “From the very beginning” federal

courts have determined “the law of nations which prescribes,

for the conduct of war, the status, rights and duties of enemy

nations as well as of enemy individuals.” Ex parte Quirin, 317

U.S. 1, 27-28 (1942).

The government argues lastly that, as a practical matter,

the judiciary should not contradict the Executive’s

interpretation of the statute. Gov’t First Stay Mot. 17-18. That

sounds like an argument for the version of the AEA that

Congress refused to enact, under which courts would simply

32

follow “the rules and directions which, in any proclamation or

other public act, the President of the United States shall and

may make[.]” 8 ANNALS OF CONG. 1786 (1798). Congress

chose instead to enact an AEA that denied unchecked

Executive authority and left an independent role for the courts.

50 U.S.C. § 23; contrast An Act Concerning Aliens, ch. 58, § 1,

1 Stat. 571 (1798) (granting the President discretion to remove

any alien he “judge[d] dangerous to the peace”).

In any event, the government identifies no prudential

reasons the district court or this court should shrink back in this

case. The government has not identified any conflict with “the

other two branches” at all, Al-Tamimi, 916 F.3d at 12 (emphasis

added). Nor, at this pre-merits stage, has the government

explained why the district court’s preservation of the status quo

so that the Plaintiffs can obtain the due process review (which

the government agrees they can have) crosses any prudential

lines. Something “more is required” for a political question

than mere “inconsistency between a judicial decision and the

position of” an Administration. Id.

2

a

Equally unavailing is the government’s suggestion that the

District of Columbia is the incorrect location for this suit. The

government argues that, because the Plaintiffs’ “claims sound

in habeas” and the “only proper venue” for a habeas petition is

the venue where a detainee is being held, Plaintiffs must sue in

Texas—not the District of Columbia. Gov’t First Stay Mot. 8.

At the outset, to the extent the government is arguing that

Plaintiffs’ failure to file in the district of detention deprives the

district court of subject matter jurisdiction, that argument has

33

no purchase. In a habeas petition, the place of detention matters

for personal jurisdiction or venue, but not for subject matter

jurisdiction. See Braden, 410 U.S. at 493 (applying “traditional

venue considerations” to identify the correct forum for a habeas

suit); see also Rumsfeld v. Padilla, 542 U.S. 426, 434 n.7

(2004) (referring to “jurisdiction” as used in the habeas statute,

“not in the sense of subject-matter jurisdiction of the District

Court”); id. at 451 (Kennedy, J., concurring) (“[T]he question

of the proper location for a habeas petition is best understood

as a question of personal jurisdiction or venue.”).

But the government’s argument flounders for a more

fundamental reason. Plaintiffs’ claims are not habeas claims

and do not sound in habeas. Their complaint originally

included one count alleging their detention violated the right to

habeas corpus. ECF No. 1 (Complaint) ¶¶ 105-106. But the

district court has since granted Plaintiffs’ motion to dismiss

that count from the complaint, Mar. 15. Tr. 22:23-25, and the

rest of Plaintiffs’ claims are routine APA claims.

Habeas corpus is the proper vehicle for challenges to the

legality of custodial detention, not the proper vehicle for a

petitioner to “claim the right to * * * remain in a country or to

obtain administrative review potentially leading to that result.”

DHS v. Thuraissigiam, 591 U.S. 103, 117 (2020). The

Supreme Court has been crystal clear on this point: “The writ

simply provide[s] a means of contesting the lawfulness of

restraint and securing release” from detention. Id.

In Thuraissigiam, a noncitizen in detention sought a writ

of habeas corpus to prevent his deportation to Sri Lanka. The

Court held that he could not pursue his claim through habeas

because he sought, in many ways, the opposite of release from

detention. 591 U.S. at 119. “[T]he Government [wa]s happy

to release him—provided the release occur[red] in the cabin of

34

a plane bound for Sri Lanka.” Id. But, because Thuraissigiam

wanted instead “the opportunity to remain lawfully in the

United States[,]” his requested relief fell “outside the scope of

the writ[.]” Id.

Likewise, in Munaf, American citizens in U.S. custody in

Iraq during military operations there filed habeas petitions to

prevent their transfer to Iraqi authorities for criminal

prosecution. 553 U.S. at 692. The Supreme Court held that

their “claims do not state grounds upon which habeas relief

may be granted.” Id. “Habeas is at its core a remedy for

unlawful executive detention[,]” and “[t]he typical remedy for

such detention is, of course, release.” Id. at 693. Because the

“last thing” the petitioners in Munaf wanted was “simple

release”—“that would expose them to apprehension by Iraqi

authorities for criminal prosecution”—they could not press

their claims through a habeas action. Id. at 693-694.

Like the plaintiffs in Thuraissigiam and Munaf, Plaintiffs

here do not seek release from detention; they want to stay in

detention in the United States. The gravamen of their

complaint is that the government cannot implement the

President’s proclamation by removing them from the United

States and releasing them into the custody of a foreign

sovereign, especially without affording them basic due process.

See ECF No. 1 (Complaint) ¶¶ 71-73. In other words, the “last

thing” Plaintiffs want is release from U.S. detention, Munaf,

553 U.S. at 693.

b

Given that precedent, the Plaintiffs’ APA action is an

appropriate vehicle for the challenges they raise to the

defendant agencies’ implementation of the Proclamation

without notice and due process. Unless otherwise precluded by

35

statute, the APA generally provides a cause of action to

challenge removals outside of the immigration laws.

Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955); see Robbins

v. Regan, 780 F.2d 37, 42 (D.C. Cir. 1985) (“[J]urisdiction over

APA challenges to federal agency action is vested in district

courts unless a preclusion of review statute * * * specifically

bars judicial review in the district court.”); see also 8 U.S.C.

§ 1252(g) (stripping courts of jurisdiction to review, as relevant

here, removal orders under Title 8, Chapter 12).

Nothing in the AEA forecloses judicial review of an

alleged enemy alien’s claim that removal would be unlawful.

Quite the opposite, Section 23 expressly provides for judicial

review of claims raised by persons before the court. And the

AEA, of course, is not part of Title 8, Chapter 12, and so is not

subject to Section 1252(g)’s jurisdiction stripping.

We recently reached that same conclusion in Huisha-

Huisha. There, asylum seekers in detention in Texas

challenged the Executive’s use of 42 U.S.C. § 265, a public

health statute, to expel them from the United States. 27 F.4th

at 723-724, 726-727, 733. The asylum seekers argued that the

use of Section 265 was “contrary to law” under the APA and

was improperly implemented by the agency. Compl. ¶¶ 74-

79, 83-84, 101-102, Huisha-Huisha v. Mayorkas, 27 F.4th 718

(D.C. Cir. 2022). The government did not argue that there was

any jurisdictional impediment to APA review, and we found

none.

Plaintiffs’ suit here fits the APA bill as well. Instead of

the Executive using Section 265 to justify removals, it relies on

the Alien Enemies Act. But, because the AEA is outside

Chapter 12 of the U.S. Code, plaintiffs may challenge their

removals under the APA.

36

As the government does not dispute, venue for Plaintiffs’

APA claims is proper in the District of Columbia. It is the

judicial district where defendants—agencies and officers of the

United States—reside. See 28 U.S.C. § 1391(e)(1) (“A civil

action in which a defendant is an officer or employee of the

United States or any agency thereof acting in his official

capacity * * * may * * * be brought in any judicial district in

which [] a defendant in the action resides[.]”). 8

c

The government’s insistence that Plaintiffs’ claims can

only proceed through habeas, and not under the APA, is not

likely to succeed either.

First, the government is wrong that “review of AEA

enforcement lies only in habeas[.]” Gov’t Second Stay Mot.

21. Our decision in Citizens Protective League shows

otherwise. There, we entertained non-habeas “civil actions”

8

Even if Section 1252(g) barred individual plaintiffs from

relying on the APA to challenge their individual removals, it would

not bar Plaintiffs’ class-wide challenge to the procedures—or lack

thereof—by which removals are being effectuated. Section

1252(g)’s reference to a “decision or action[,]” 8 U.S.C. § 1252(g),

“describes a single act rather than a group of decisions or a practice

or procedure employed in making decisions.” Reno v. Catholic Soc.

Servs., Inc., 509 U.S. 43, 56 (1993) (quoting McNary v. Haitian

Refugee Center, Inc., 498 U.S. 479, 492 (1991) (analyzing similar

language in 8 U.S.C. § 1255). That language therefore “describes

the denial of an individual application,” and so “applies only to

review of denials of individual * * * applications.” Id. (quoting

McNary, 498 U.S. 479 at 492). For that reason, both Reno and

McNary found district courts had jurisdiction over class-wide

challenges to the procedural implementation of immigration

processes. Id. at 55-56; McNary, 498 U.S. at 491-494.

37

brought by 159 German nationals and a non-profit organization

to challenge removals under the AEA. Citizens Protective

League, 155 F.2d at 291.

Outside the context of the AEA, the Supreme Court has

also not required plaintiffs to use habeas when they do not

challenge detention. The Court has never “recognized habeas

as the sole remedy where the relief sought would not terminate

custody, accelerate the date of release, or reduce the custody

level.” Skinner v. Switzer, 562 U.S. 521, 534 (2011). To the

contrary, when the relief sought is simply to “stay” in the

United States, that relief “falls outside the scope of the writ[.]”.

Thuraissiggiam, 591 U.S. at 119.

Second, the government relies on LoBue v. Christopher,

82 F.3d 1081 (D.C. Cir. 1996), to argue that, so long as

Plaintiffs could have petitioned for habeas to secure the relief

they seek, no other cause of action is available. Thuraissiggiam

and Munaf establish that habeas relief is not available in this

context, so the government’s LoBue argument is beside the

point.

LoBue is off point for another reason. In that case, two

plaintiffs detained in Illinois for extradition to Canada filed

habeas corpus actions in Illinois and then a separate APA suit

in the District of Columbia. They argued that the extradition

laws were unconstitutional. Id. at 1081-1083. This court

rejected the plaintiffs’ attempt to make an end-run around

habeas. Because success in their declaratory suit would have

“preclusive effect” on their concurrently filed habeas petitions

and so would secure their release from confinement, it did not

matter that the plaintiffs did not “formally s[eek] a release from

custody” in this court. Id. at 1083.

38

Plaintiffs, by contrast, are not manipulating anything. The

government’s implementation of the Proclamation gave no

individual notice or any time at all to file suit to challenge their

removal. Only a swift class action could preserve the

Plaintiffs’ legal rights before the rushed removals mooted their

cases and thrust them into a Salvadorean prison. So success in

this suit would not secure Plaintiffs’ release from U.S.

custody—the remedy they could secure through habeas

petitions. Success would maintain their federal custody.

Even on its own terms, LoBue has no bearing on this case.

LoBue concerned extradition, not removal, and this court

specifically distinguished an extradition challenge from

Supreme Court precedent “allowing an alien subject to a

deportation order to seek relief by way of a declaratory

judgment action.” 82 F.3d at 1083.

IV

On top of the threshold jurisdictional barriers to our

appellate jurisdiction and to the government’s ability to

succeed on the merits of its own jurisdictional objections to the

district court’s TROs, the other stay factors weigh against the

government.

One of the “most critical” factors for a stay is “whether the

applicant will be irreparably injured[.]” Nken, 556 U.S. at 434.

The government’s argument for irreparable injury does not

hold up on this record.

According to the government, the district court’s TROs

interfere with the President’s authority to execute the law and

to oversee foreign affairs. Yet the government conceded at oral

argument that all Plaintiffs in the class are entitled to submit

habeas petitions in the district of their confinement challenging

39

whether they are members of TdA. Oral Arg. 19:51-20:14,

56:16-56:26, 1:41:55-1:42:28, 1:42:50-1:43:12. Even

assuming Plaintiffs’ claims to remain in detention could be

pressed under habeas, any such habeas proceeding would allow

them to obtain the same relief they seek here—review of their

eligibility for removal under the Proclamation. And so the

government’s preference for habeas proceedings would

produce at least the same restriction on the President’s

authority to remove the Plaintiffs that the TROs impose.

In other words, the Executive Branch’s asserted injury is

actually just a dispute over which procedural vehicle is best

situated for the Plaintiffs’ injunctive and declaratory claims.

The Executive Branch prefers 300 or more individual habeas

petitions in Texas and wherever else Plaintiffs are detained to

this class APA case in Washington D.C. Regardless of whether

the government is entitled to a different venue and procedural

vehicle, an assertion of a “procedural right in vacuo” does not

amount to irreparable injury warranting immediate emergency

relief. Summers v. Earth Island Inst., 555 U.S. 488, 496

(2009).

In addition, the TROs create no risk to the public. The

TROs only prevent the Executive from removing alleged

members of TdA who are already detained under the AEA.

Second Minute Order (Mar. 15, 2025). The Executive remains

free to take TdA members off the streets and keep them in

detention. The Executive can also deport alleged members of

TdA under the INA in expedited fashion if the government can

prove they committed a serious crime, 8 U.S.C. § 1228(a), or

are terrorists, 8 U.S.C. §§ 1531-1537.

Finally, there is the more basic question of whether any of

the Plaintiffs are, in fact, members of TdA. The Plaintiffs

vigorously argue that they have nothing to do with this gang.

40

See ECF No. 3-3 (J.G.G. Decl.) ¶ 3; ECF No. 44-11 (Carney

Decl. for G.F.F.) ¶ 3; ECF No. 44-12 (Smyth Decl. for J.A.V.)

¶¶ 9, 11; ECF No. 3-6 (W.G.H. Decl.) ¶ 12; ECF No. 44-9

(Shealy Decl. for J.G.O.) ¶ 4. 9

At the same time, the injury to the Plaintiffs is great and

truly irreparable. They face immediate removal on grounds

that they say have no application to them and yet their claims

have never been heard. And the removals under the AEA thus

far have been not to their home countries, but directly into a

Salvadorean jail reported to have a notorious reputation for

human rights abuses and disappearances. ASSOCIATED PRESS,

What to know about CECOT, El Salvador’s mega-prison for

gang members, (Mar. 17, 2025), https://perma.cc/7WER-

NB7G.

Worst of all, the government has confessed that its

preference that Plaintiffs use habeas corpus to challenge their

eligibility for AEA removal is a phantasm: The government’s

position at oral argument was that, the moment the district court

TROs are lifted, it can immediately resume removal flights

without affording Plaintiffs notice of the grounds for their

removal or any opportunity to call a lawyer, let alone to file a

writ of habeas corpus or obtain any review of their legal

challenges to removal. Oral Arg. 1:44:04-1:45:51. It is

irreparable injury to reduce to a shell game the basic lifeline of

due process before an unprecedented and potentially

irreversible removal occurs.

9

The lack of irreparable injury to the government is also the

reason for denying the government’s request for mandamus relief.

Mandamus is inappropriate when the normal appellate process is

adequate to address the government’s injury. In re Flynn, 973 F.3d

74, 78 (D.C. Cir. 2020) (en banc) (“A petition for a writ of mandamus

‘may never be employed as a substitute for appeal.’”) (quoting Will

v. United States, 389 U.S. 90, 97 (1967).

41

V

Over one-hundred-and-fifty years ago, the Supreme Court

addressed whether civilian courts could be closed just because

the Executive declared an emergency. The Court said no.

The Constitution of the United States is a law for

rulers and people, equally in war and in peace, and

covers with the shield of its protection all classes of

men, at all times, and under all circumstances. No

doctrine, involving more pernicious consequences,

was ever invented by the wit of man than that any of

its provisions can be suspended during any of the

great exigencies of government.

Ex parte Milligan, 71 U.S. 2, 120-121 (1866).

The government’s removal scheme denies Plaintiffs even

a gossamer thread of due process, even though the government

acknowledges their right to judicial review of their

removability. The district court’s temporary restraining orders

have appropriately frozen the status quo until an imminent

motion for preliminary injunction is filed. The district court

acted well within its discretion in doing so. We lack

jurisdiction to review the government’s motion to stay those

orders, and the government’s jurisdictional objections to the

district court’s actions do not raise a substantial question at this

stage.

For all of the foregoing reasons, I agree that the

government’s motions for stays must be denied.

WALKER, Circuit Judge, dissenting:

Tren de Aragua is a violent criminal organization linked to

Venezuela. The President invoked the Alien Enemies Act of

1798 to remove its members from our country.1 Venezuelan

nationals alleged to be members of this group were swiftly sent

to a detention center in Texas for summary removal.2

Five individuals confined at that Texas facility quickly

sued the President here in Washington, D.C. They say that the

President exceeded his authority under the Act. They also say

they’re not members of Tren de Aragua.3

The two sides of this case agree on very little. But what is

at this point uncontested is that “individuals identified as alien

enemies . . . may challenge that status in a habeas petition.”4

1

Presidential Proclamation, Invocation of the Alien Enemies Act

Regarding the Invasion of The United States by Tren De Aragua

(March 15, 2025) (the “Proclamation”) (citing the Alien Enemies

Act, 50 U.S.C. § 21, et seq., 1 Stat. 577, 577-78 (1798)).

2

See Complaint, ECF 1, at 3-5 ¶¶ 9-13, J.G.G. et al. v. Trump, et al.,

No. 1:25-cv-00766 (D.D.C. Mar. 15, 2025).

3

See Plaintiffs’ Response to Motion to Vacate TRO, ECF 44, at 7

(“all five of the named Plaintiffs dispute that they are members of the

TdA [i.e., Tren de Aragua].” (citing declarations)).

4

Government’s Reply in Support of Emergency Appeal, at 14; see

also Oral Arg. at 17:38 – 21:33, available at

youtube.com/live/4DoTLGECQSU.

In other words, according to the Government, the door to the

federal courthouse in Brownsville, Texas is open, and the

Government has not represented that it will affirmatively prevent a

detainee from seeking emergency habeas relief in his district of

confinement if he tries to do so. In fact, despite the Government’s

haste, and notwithstanding Plaintiffs’ allegations of underhanded

conduct, deportees have managed nonetheless to file petitions for

habeas corpus both here and in the Southern District of Texas. Cf.

2

The problem for the Plaintiffs is that habeas claims must

be brought in the district where the Plaintiffs are confined. For

the named Plaintiffs at least, that is the Southern District of

Texas. Because the Plaintiffs sued in the District of Columbia,

the Government is likely to succeed in its challenge to the

district court’s orders.

The Government has also shown that the district court’s

orders threaten irreparable harm to delicate negotiations with

foreign powers on matters concerning national security. And

that harm, plus the asserted public interest in swiftly removing

dangerous aliens, outweighs the Plaintiffs’ desire to file a suit

in the District of Columbia that they concede they could have

brought in Texas — and that longstanding legal principles

regarding habeas require them to have brought in Texas.

The Government has met its burden, so we should grant

the stay pending appeal.

I. The District Court’s Orders Are Appealable Orders.

We must have jurisdiction before we consider an appeal.

Temporary restraining orders ordinarily aren’t appealable.5

But the district court’s extraordinary orders here are.

I.M. v. United States Customs & Border Protection, 67 F.4th 436,

444 (D.C. Cir. 2023) (brief custody of a few weeks would not “all

but prevent judicial review of expedited removal orders”).

5

OPM v. American Federation of Government Employees, AFL-

CIO, 473 U.S. 1301, 1303-04 (1985) (“denials of temporary

restraining orders are ordinarily not appealable”).

It’s fair to ask why this is “the established rule.” Id. After all, we

have appellate jurisdiction to review orders “granting . . . injunctions,

or refusing to dissolve or modify injunctions,” 28 U.S.C.

§ 1292(a)(1), and “TROs almost certainly fall within the historical

3

Operating under intense time pressure, the district court

granted a temporary restraining order preventing the removal

of the named plaintiffs, then quickly certified a class of “all

noncitizens in U.S. custody who are subject to the . . .

Proclamation,”6 and then granted a temporary restraining order

that “enjoined” the Government “from removing members of

[that] class.”7 Together, these orders amounted to an injunction

that halted the President’s effort to implement his Proclamation

— the success of which depends on “delicate negotiations”

with “foreign interlocutors.”8

The district court’s extraordinary injunctions are

appealable. Although the district court “styled” each of them

as “a temporary restraining order,” that “label . . . is not

decisive.”9 What matters is what it did. And far from “merely

and modern definitions of ‘injunction.’” Tyler B. Lindley, Morgan

Bronson & Wesley White, Appealing Temporary Restraining Orders

(BYU Law Research Paper No. 25-06), 77 Fla. L. Rev. (forthcoming

2025) (manuscript at 3), https://perma.cc/Q2JB-FC93. It appears

likely that the rule is no product of “textualist reasoning,” but rather

a vestige of case law dissociated from important statutory history.

Id. Even so, we’re bound by that case law until the Supreme Court

tells us otherwise.

6

Minute Order Granting Motion for Class Certification.

7

Id.

8

Government’s Emergency Motion for a Stay Pending Appeal at 26-

27 ¶¶ 2-4 (Declaration of Michael G. Kozak).

9

Adams v. Vance, 570 F.2d 950, 953 (D.C. Cir. 1978) (quoting

Wright & Miller, Federal Practice and Procedure § 2962, at 619

(1973)).

Relatedly, district courts have halted executive actions under the

guise of “administrative stays.” See, e.g., Minute Order, Dellinger

v. Bessent, No. 25-cv-385 (D.D.C. Feb. 10, 2025) (administrative

stay reinstating terminated official). But again, what matters is not

how an order is labeled, but how it functions. These so-called

4

preserv[ing] the status quo pending further proceedings,” the

district court’s orders affirmatively interfered with an ongoing,

partially overseas, national-security operation.10

In Adams v. Vance, we held that when a district court’s

temporary order threatens “intrusion on executive discretion in

the field of foreign policy,” its order is immediately

reviewable.11 That’s the case here. The district court told the

Executive Branch to immediately stop executing a plan to

repatriate or remove Venezuelan nationals pursuant to

“[a]rrangements [that] were recently reached” with El Salvador

and “representatives of the Maduro regime.”12 Not only that,

the district court “commanded an unprecedented action” from

the bench: The district judge ordered aircraft to be turned

around mid-flight in the middle of this sensitive ongoing

national-security operation.13

“‘administrative stays’ are not actually stays at all, administrative or

otherwise. They are injunctions.” Chris D. Moore, So-Called

“Administrative Stays” in Trump 2.0, 104 Tex. L. Rev. Online

(forthcoming 2025) (manuscript at 3), https://perma.cc/6DUP-9N7P.

10

Adams, 570 F.2d at 952.

11

Id.

12

Kozak Declaration ¶ 3.

13

Class Certification Hearing Tr. at 43:12-15, 43:18-19 (Mar. 15,

2025) (“[A]ny plane containing [putative plaintiff class members]

that is going to take off or is in the air needs to be returned to the

United States . . . . [T]hose people need to be returned to the United

States. . . . [T]his is something that you need to make sure is complied

with immediately.”); cf. Al-Bihani v. Obama, 619 F.3d 1, 12 n.1

(D.C. Cir. 2010) (en banc) (Kavanaugh, J., concurring) (“Even when

this Court might disagree with a District Court decision, that

disagreement is with respect and appreciation for the dedicated work

of the District Court on these matters.”).

5

“When an order directs action so potent with consequences

so irretrievable, we provide an immediate appeal to protect the

rights of the parties.”14 The district court’s orders here threaten

an “irreversibl[e] altering [of] the delicate diplomatic balance”

that high-level Executive officials recently struck with foreign

powers.15

In a sworn declaration, the Senior Bureau Official for

Western Hemisphere Affairs tells us, based on his “extensive

experience since 1971 engaging in” diplomacy involving “El

Salvador, Venezuela, and other countries in the region,” that

there is a serious risk that our diplomatic counterparts will

“change their minds regarding their willingness to accept

certain individuals associated with [Tren de Aragua].”16 He

also flags the risk that foreign negotiators will “seek to

leverage” the delay “as an ongoing issue.”17

As we’ve cautioned before, “[c]ourts must beware

‘ignoring the delicacies of diplomatic negotiation.’”18 So we

can’t ignore a declaration warning that these “harms could arise

14

Adams, 570 F.2d at 953; see also Dellinger v. Bessent, No. 25-

5028, 2025 WL 559669, at *13 (D.C. Cir. Feb. 15, 2025) (Katsas, J.,

dissenting) (“TROs themselves sometimes inflict irreparable injury,

and in those cases an immediate appeal is available to avoid it.”).

15

Adams, 570 F.2d at 953; see Kozak Declaration ¶¶ 2-3 (explaining

that Secretary of State and other high-ranking White House and State

Department officials “negotiated at the highest levels with the

Government of El Salvador and with Nicolas Maduro and his

representatives in Venezuela in recent weeks”).

16

Kozak Declaration ¶¶ 1, 4.

17

Id. ¶ 4.

18

Adams, 570 F.2d at 954 (quoting Mitchell v. Laird, 488 F.2d 611,

616 (D.C. Cir. 1973)).

6

even in the short term.”19 It’s no answer, therefore, to say that

the district court’s temporary restraining orders last only 14

days (or perhaps another 14 days after that).20 That’s more than

enough time to frustrate fast-moving international negotiations.

In sum, the “extraordinary character of the order[s] at issue

here . . . warrant[ ] immediate appellate review.”21

* * *

There remains one procedural wrinkle to iron out before

turning to the merits. A stay applicant must “ordinarily move

first in the district court” for a stay pending appeal.22 But here

the Government didn’t do so.

That doesn’t preclude our review. The Federal Rules of

Appellate Procedure expressly provide that an applicant may

bypass that step if it shows “that moving first in the district

court would be impracticable.”23 Here, the Government cited

extremely exigent circumstances that made it “impracticable”

to move first in the district court.24 And it filed emergency

motions in our Court mere hours after each temporary

restraining order issued — a testament to its view of the harm

19

Kozak Declaration ¶ 4.

20

See Fed. R. Civ. P. 65(b)(2) (district court may, “for good cause,”

“extend” a 14-day TRO for “a like period”).

21

Dellinger, 2025 WL 559669, at *12 (Katsas, J., dissenting).

22

Fed. R. App. P. 8(a)(1)(A).

23

Id. R. 8(a)(2)(A)(ii); see also D.C. Cir. R. 8(a) (“motion seeking

emergency relief must state whether such relief was previously

requested from the district court and the ruling on that request”).

24

See First Emergency Stay Motion, at 4 n.1 (citing the “importance

of the issues involved” and “the fast-moving nature of this case”);

Second Emergency Stay Motion, at 8 n.1 (same).

7

that the temporary restraining orders inflict on the Executive

Branch every hour that they remain in effect.25 The

Government’s sidestepping of the district court under these

circumstances is no impediment to our review.26

Because this appeal is properly before us, I now consider

the stay factors, beginning with the Government’s likelihood

of success on the merits.27

II. The Government Is Likely To Succeed On The Merits

Because The Plaintiffs Cannot Sue In The District of

Columbia.

The Government is likely to succeed on appeal for a

technical, but important, reason: The Plaintiffs’ claims sound

in habeas, and habeas petitions must be brought where

detainees are held. For the five named Plaintiffs, that is the

Southern District of Texas.

25

The district court issued the first TRO (applicable only to the

named plaintiffs) at 9:40 AM, and the Government filed its 15-page

emergency stay motion at 3:05 PM — less than six hours later. The

district court’s second TRO issued at 7:25 PM, and the Government

filed its 22-page emergency stay motion, plus a two-page State

Department declaration, at 1:04 AM — less than five hours later.

26

Even if the Government’s approach were procedurally irregular,

the Plaintiffs have forfeited that argument by failing to raise it. See

generally Plaintiffs’ Brief in Response to Stay Motion.

27

Nken v. Holder, 556 U.S. 418, 425-26 (2009) (stay factors: “(1)

whether the stay applicant has made a strong showing that he is likely

to succeed on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies”).

8

A. The Plaintiffs’ Proper Cause Of Action Is A Habeas

Petition.

The Plaintiffs’ complaint raises various claims for relief.

But what’s their “cause of action”?28 On what basis do they

invoke federal courts’ remedial power?

Many of the Plaintiffs’ claims rely on the Administrative

Procedure Act. The APA provides a cause of action to anyone

“suffering legal wrong because of agency action.”29 The

Plaintiffs allege that the President’s Proclamation is “contrary

to law” under the APA, because it stretches the meaning of the

Alien Enemies Act and violates several other statutes.30

28

Cf. Trudeau v. FTC, 456 F.3d 178, 188 n.15 (D.C. Cir. 2006) (“a

‘cause of action’ [is] the legal authority (e.g., the APA) that permits

the court to provide redress for a particular kind of ‘claim.’”).

29

See 5 U.S.C. § 702 (“A person suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to judicial review

thereof.”).

Plaintiffs’ eighth claim for relief asserts their rights under the Fifth

Amendment’s Due Process Clause. Complaint, ECF 1, at 22 ¶¶ 101-

04. Though “we have long held that federal courts may in some

circumstances grant injunctive relief . . . with respect to violations of

federal law by federal officials,” that cause of action is not available

when a habeas petition is available. Armstrong v. Exceptional Child

Center, Inc., 575 U.S. 320, 326-27 (2015); see also Preiser v.

Rodriguez, 411 U.S. 475, 489-90 (1973).

30

Complaint, ECF 1, at 17 ¶¶ 71-73 (citing 5 U.S.C. § 706(2)(A));

id. at 19-20 ¶¶ 97-100 (same); id. at 19 ¶ 83 (same); id. at 17-18 ¶ 86

(same); id. at 18 ¶¶ 78-79 (same); id. at 20 ¶ 90 (same).

9

Implementing the Proclamation, they add, is “arbitrary and

capricious” — the quintessential APA challenge.31

But the APA is not the right vehicle for two reasons. First,

it provides review only when there is “no other adequate

remedy in a court.”32 As I will explain below, another avenue

for review is available here — a petition for habeas corpus.

Second, the Proclamation here is not an “agency action.”

It is a Presidential Proclamation. And the “President is not an

agency.”33 So the APA does not authorize review of the

Proclamation. Where the “final action complained of is that of

the President” — here, the President’s Proclamation under the

Alien Enemies Act — the APA does not provide a basis for

judicial review.34

How are the Plaintiffs supposed to bring their claims for

relief, if not via the APA? The answer appears in the very title

of their own complaint: “PETITION FOR WRIT OF HABEAS

31

Id. at 20-21 ¶¶ 93-95 (still citing 5 U.S.C. § 706(2)(A)). Plaintiffs

made sure to “except Defendant Trump” from this claim for relief,

which is titled “Violation of the Administrative Procedure Act.”

32

5 U.S.C. § 704.

33

Franklin v. Massachusetts, 505 U.S. 788, 796 (1992).

34

Id.

The Plaintiffs might respond that part of their complaint

challenges lower-level decisions by executive officials about

whether a particular plaintiff is a member of Tren de Aragua — a

decision not made by the President. But that type of challenge is

unique to each plaintiff, so it would seem that a class action is a poor

vehicle for that type of challenge.

10

CORPUS.”35 In that complaint, “Plaintiffs respectfully pray

this Court to . . . Grant a writ of habeas corpus to Plaintiffs that

enjoins Defendants from removing them under the [Alien

Enemies Act].”36

Regardless of whether that would have been a

paradigmatic habeas claim when habeas was first developed, it

is now. The Plaintiffs face imminent removal by Proclamation

of the Executive. They resort to court to challenge the legal

and factual grounds for their threatened removal. And if they

win the argument, they cannot be summarily removed.

“At its historical core, the writ of habeas corpus” serves

“as a means of reviewing the legality of Executive detention.”37

Indeed, its most central “historic purpose” was “to relieve

detention by executive authorities without judicial trial.”38

This “great and efficacious writ” did so by requiring the

custodian to “produce the body of the prisoner” to the “judge

or court” and provide a “satisfactory excuse” for the prisoner’s

detention.39

35

Complaint, ECF 1, at 1; see 28 U.S.C. § 2241 (federal habeas

statute).

36

Id. at 21.

37

INS v. St. Cyr, 533 U.S. 289, 301 (2001), abrogated on other

grounds by statute, see REAL ID Act of 2005, 119 Stat. 310, 8

U.S.C. § 1252(a)(5); Nasrallah v. Barr, 590 U.S. 573, 580 (2020)

(acknowledging St. Cyr’s statutory abrogation).

38

St. Cyr, 533 U.S. at 301 (quoting Brown v. Allen, 344 U.S. 443,

533 (1953)) (emphasis added).

39

Sir William Blackstone, COMMENTARIES ON THE LAWS OF

ENGLAND 687-88 (Chase, ed. 1882).

11

As Blackstone put it, the great writ remedies “all manner

of illegal confinement.”40 So habeas is used to challenge the

place of confinement. Consider In re Bonner.41 There, the

Supreme Court granted habeas to a petitioner who was subject

to imprisonment on a valid jury verdict.42 Bonner’s only

complaint was that he was “unlawfully deprived of his liberty”

by his placement in the wrong penitentiary. (By statute, he

should have been imprisoned somewhere else.) That Bonner

could (and should) have been confined elsewhere was no

impediment to seeking a writ of habeas corpus. Indeed, the

Court even said that “[t]o deny the writ of habeas corpus in

such a case” would be “a virtual suspension of [the writ].”43

After all, “a place of confinement challenge . . . unquestionably

sounds in habeas.”44

40

Id. at 687 (emphasis added); see also DHS v. Thuraissigiam, 140

S. Ct. 1959, 1981 (2020) (“The writ of habeas corpus as it existed at

common law provided a vehicle to challenge all manner of detention

by government officials, and the Court had held long before that the

writ could be invoked by aliens already in the country who were held

in custody pending deportation.”).

As an aside, Thuraissigiam is of no help to the Plaintiffs here.

Thuraissigiam was not making a core habeas challenge to his

removal; instead, he was seeking affirmative administrative relief.

See Thuraissigiam, 140 S. Ct. at 1969-71, 1974, 1981 (rejecting a

petitioner’s “very different attempted use of the writ” to seek “quite

different relief” than traditionally available in habeas — namely, the

“authorization for an alien to remain in a country other than his own”

and “to obtain administrative or judicial review leading to that

result”).

41

151 U.S. 242, 262 (1894).

42

See In re Bonner, 151 U.S. 242, 262 (1894).

43

Id. at 259-60 (emphasis added).

44

Aamer v. Obama, 742 F.3d 1023, 1035 (D.C. Cir. 2014) (emphasis

added); see, e.g., Creek v. Stone, 379 F.2d 106, 109 (D.C. Cir. 1967)

12

Another use of habeas is to challenge transfer from one

place of detention to a different location. For instance, in

Kiyemba v. Obama, Guantanamo detainees challenged — in

habeas — their anticipated transfer to another country.45 We

deemed “a potential transfer out of the jurisdiction” to be “a

proper subject of statutory habeas relief,” and we rejected an

argument by the Government that “the right to challenge a

transfer is ‘ancillary’ to and not at the ‘core’ of habeas corpus

relief.”46 If habeas was the proper cause of action

there — where detainees feared continued detention after

removal — habeas is all the more the proper cause of action

here, where the Plaintiffs will continue to be detained after

removal.47

To be sure, Kiyemba did not grant habeas relief. But that

is because the detainees failed “on the merits of their present

claim.”48 That decision was controlled by Munaf v. Geren.49

Munaf was in Iraq and had broken Iraqi law, and the U.S.

was planning to transfer him from U.S. custody to Iraqi

(“habeas corpus is available not only to an applicant who claims he

is entitled to be freed of all restraints, but also to an applicant who

protests his confinement in a certain place.” (emphases added)); id.

at 108-11 (habeas appropriate for statutory challenge to convicted

juvenile’s confinement in a receiving home rather than an

appropriate psychiatric facility); Miller v. Overholser, 206 F.2d 415

(D.C. Cir. 1953) (habeas petition brought by a man confined to a

ward for the criminally insane who said he belonged instead in an

institution for the mentally ill).

45

561 F.3d 509, 511 (D.C. Cir. 2009).

46

Id. at 513.

47

See id. (“likely” to be detained).

48

Id. at 514.

49

553 U.S. 674 (2008).

13

custody. The Supreme Court first held that the lower court had

habeas jurisdiction. The Court then held that, on the merits, the

habeas claim failed because the Court could not interfere with

a foreign criminal system. In other words, on the merits of

whether the transfer was lawful, it was lawful because Iraq had

“exclusive jurisdiction to punish offenses against its laws

committed within its borders.”50

Munaf’s reason for denying the habeas petition was not

that habeas cannot be used to enjoin a detainee’s transfer as a

general matter. If habeas was not the proper vehicle to bring

the merits claim opposing the transfer in Munaf, the Court

would not have been able to do what it did — reach the merits

of that habeas claim.51

Myriad cases also show that challenges to extradition and

deportation are properly brought in habeas. In LoBue v.

Christopher, we said habeas was a vehicle to challenge

extradition statutes, as had the Supreme Court over a century

earlier.52 Regardless of changes to immigration statutes,

habeas has long been used to bring removal challenges —

indeed, “[u]ntil the enactment of the 1952 Immigration and

Nationality Act,” “bringing a habeas corpus action in district

50

Id. at 697.

51

Cf. In re Bonner, 151 U.S. 242, 262 (1894) (granting habeas writ

to petitioner who claimed he was imprisoned in the wrong

penitentiary).

52

82 F.3d 1081, 1082-84 (D.C. Cir. 1996); Ward v. Rutherford, 921

F.2d 286, 288 (D.C. Cir. 1990) (Ginsburg, R.B., J.) (“actions taken

by magistrates in international extradition matters are subject to

habeas corpus review by an Article III district judge”); Benson v.

McMahon, 127 U.S. 457, 462 (1888) (habeas used to challenge to

extradition).

14

court” was “the sole means by which an alien could test the

legality of his or her deportation order.”53

The upshot is that habeas and removal challenges go hand-

in-glove, and statutory developments since the late nineteenth

century do not affect this key point.54 That’s because the

summary removals challenged here are premised upon the

President’s authority under an eighteenth-century law. That

law has not been repealed, expressly or impliedly, by later

immigration laws. And the specific controls the general.55

It is noteworthy that the few Alien Enemies Act cases on

the books almost invariably arose through habeas petitions:

Both of the two Alien Enemies Act cases to reach the Supreme

Court — Ludecke v. Watkins and Ahrens v. Clark — arose via

habeas petitions.56 In Ahrens, for example, the Supreme Court

held that District of Columbia federal courts had no jurisdiction

to hear habeas claims challenging confinement in New York

for deportation to Germany under the Alien Enemies Act.57

53

St. Cyr, 533 U.S. at 306; see also Heikkila v. Barber, 345 U.S. 229,

235 (1953) (rejecting challenge to deportation order under the APA

because plaintiff “may attack a deportation order only by habeas

corpus”).

54

Cf. DHS v. Thuraissigiam, 140 S. Ct. 1959, 1971-75 (2020)

(looking to the historical understanding of the scope of the writ as

the touchstone for Suspension Clause analysis).

55

See Antonin Scalia & Bryan A. Garner, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 183 (2012).

56

See generally Ludecke v. Watkins, 335 U.S. 160 (1948); Ahrens v.

Clark, 335 U.S. 188 (1948).

57

335 U.S. at 192-93 (“the jurisdiction of the District Court to issue

the writ in cases such as this [i.e., AEA habeas petitions] is restricted

to those petitioners who are confined or detained within the territorial

jurisdiction of the court”). A later case, Braden v. 30th Judicial

Circuit Court of Kentucky, 410 U.S. 484 (1973), overturned part of

15

Likewise, for cases in the lower courts, habeas was often the

vehicle for aliens designated as enemies to challenge their

designation and prevent their removal.58

That may explain why the Plaintiffs here titled their

complaint a “petition for habeas corpus,” and asked the district

court to “[g]rant a writ of habeas corpus . . . that enjoins

Defendants from removing them under the [Alien Enemies

Act].”59

B. The District Of Columbia Is Not The Proper Location

For This Suit Because Of The Habeas-Channeling Rule

And Habeas’ District-of-Confinement Rule.

At the district court’s suggestion, the Plaintiffs voluntarily

dismissed their habeas claims. That’s because habeas claims

must be brought where the petitioner is confined, and the

Plaintiffs are not confined in the District of Columbia.

But merely dismissing the claims — even erasing the

words ‘habeas corpus’ from the complaint — does not rescue

the Plaintiffs’ complaint. That’s because of two important

Ahrens, but Rumsfeld v. Padilla, 542 U.S. 426 (2004), makes clear

that Ahrens’s core holding remains good law. See Padilla, 542 U.S.

at 443 (“for core habeas petitions challenging present physical

confinement, jurisdiction lies in only one district: the district of

confinement”).

58

See, e.g., Kaminer v. Clark, 177 F.2d 51 (D.C. Cir. 1949); United

States ex rel. Schlueter v. Watkins, 67 F. Supp. 556 (S.D.N.Y.), aff’d,

158 F.2d 853 (2d Cir. 1946). But cf. Citizens Protective League v.

Clark, 155 F.2d 290 (D.C. Cir. 1946) (claims not characterized as

habeas, but habeas issue neither raised nor addressed).

59

Complaint, ECF 1, at 1, 23 ¶ f (Prayer for Relief).

16

rules: the “habeas-channeling rule” and the “district of

confinement rule.”

First, the “habeas-channeling rule” requires core habeas

claims, like the Plaintiffs’ claims, to be brought in habeas.60

Importantly, that means they must bring their claims in

compliance with habeas’s unique procedural requirements. As

the Supreme Court has explained, if plaintiffs could resort to

“the simple expedient of putting a different label on their

pleadings” — framing their challenges as § 1983 claims, for

instance — they could effectively “evade” these procedural

requirements.61 The habeas-channeling rule shuts the door to

that kind of gamesmanship.62

The second relevant habeas rule is the “district of

confinement rule.”63 That rule says that habeas claims must be

60

See Nance v. Ward, 142 S. Ct. 2214, 2222 (2022) (“this Court has

held that an inmate must proceed in habeas when the relief he seeks

would necessarily imply the invalidity of his conviction or sentence”

(cleaned up) (emphasis added)); Preiser v. Rodriguez, 411 U.S. 475,

489-90 (1973) (plaintiffs can’t “evade” habeas procedural

requirements “by the simple expedient of putting a different label on

their pleadings”); Dufur v. United States Parole Commission, 34

F.4th 1090, 1095 (D.C. Cir. 2022) (“[T]he sole remedy for assertedly

unlawful incarceration is through habeas corpus.”).

61

Preiser, 411 U.S. at 489-90; see Dafur, 34 F.4th at 1095

(explaining that Preiser’s “habeas-ch

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