# J.G.G. v. Donald Trump

> Court of Appeals for the D.C. Circuit · March 26, 2025

URL: https://www.frixlaw.com/law-library/cases/10831343

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 26, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10831343

## How later opinions describe it (automated extraction)

- explaining that “invasion” requires “armed hostility from another political entity,” which is not “the influx of legal and illegal aliens into” the United States

## Opinion text

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
succe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10831343. Public record. Not legal advice.