3 Areas Where the Courts Pushed Back Against Trump's Attempts To Avoid Judicial Review in 2025
SOURCE:Reason
The president asserted broad powers to deport people, impose tariffs, and deploy the National Guard based on his own unilateral determinations.
In December, CBS News Editor in Chief Bari Weiss provoked internal and external criticism by postponing a 60 Minutessegment about President Donald Trump's deportation of suspected Venezuelan gang members to Centro de Confinamiento del Terrorismo (CECOT), a notorious prison in El Salvador. "We need to do a better job of explaining the legal rationale by which the administration detained and deported these 252 Venezuelans to CECOT," Weiss wrote in a memo that elucidated her reservations about the story. "It's not as simple as Trump invoking the Alien Enemies Act [AEA] and being able to deport them immediately. And that isn't the administration's argument."
Weiss noted that the government's lawyers had "argued in court that detainees are entitled to 'judicial review.'" She said "we should explain this, with a voice arguing that Trump is exceeding his authority under the [AEA], and another arguing that he's operating within the bounds of his authority." She thought the story should make it clear that "there's a genuine debate here."
That seemingly even-handed summary glossed over several important aspects of these deportations. First, the men at the center of the 60 Minutes segment were in fact shipped off to CECOT without any sort of judicial review. Second, even after the Supreme Court ruled that alleged "alien enemies" have a due process right to challenge their removal via habeas corpus petitions, the administration made that option nearly impossible to pursue in practice, as the Court subsequently recognized. Third, the government maintains that federal courts have, at most, a highly circumscribed role in these cases, saying they have no authority to question Trump's historically unprecedented invocation of the AEA against alleged gang members.
Trump's assertion of unreviewable power under the AEA is part of a broader pattern that became clear during his first year in office. He has made similar claims regarding his tariffs and National Guard deployments. In these and other cases, Trump's position undermines civil liberties, the rule of law, and the separation of powers by attacking the crucial role that the judicial branch plays in making sure that presidents respect statutory and constitutional limits on their authority.
Trump's invocation of the AEA was dubious from the beginning. That rarely used 1798 statute applies when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States" (even when a war has not been declared). In those circumstances, the AEA authorizes "restraint, regulation, and removal" of "natives, citizens, denizens, or subjects of the hostile nation or government," provided they are at least 14 years old.
In a proclamation published on the evening of Saturday, March 15, Trump implausibly claimed that members of the Venezuelan gang Tren de Aragua qualified as "alien enemies" under that definition. In addition to dubiously asserting that Tren de Aragua had "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States," the proclamation counterintuitively implied that the gang was a "foreign nation or government." Trump further stretched the language of the statute by implying that alleged Tren de Aragua members were "natives, citizens, denizens, or subjects" of the gang.
Trump's initial use of the AEA was clearly designed to avoid judicial review altogether. By the time he published his proclamation, the Department of Homeland Security was already in the process of removing detainees and sending them to CECOT. Lawyers at the American Civil Liberties Union got wind of the pending proclamation and filed a complaint on behalf of five detainees in the U.S. District Court for the District of Columbia. They also sought protection for a class consisting of similarly situated detainees, and they filed an urgent motion for a temporary restraining order (TRO), noting that the plaintiffs were "at substantial risk of immediate, summary removal from the United States" under the AEA.
In light of "the exigent circumstances," James Boasberg, the district's chief judge, promptly granted a TRO aimed at "maintain[ing] the status quo until a hearing can be set." That hearing convened via Zoom at 5 p.m. that Saturday, which was still three hours before Trump's proclamation appeared on the White House website. In response to the concern that airplanes bound for El Salvador were about to take off, Boasberg repeatedly asked Deputy Assistant Attorney General Drew Ensign what was happening. Ensign never gave Boasberg a straight answer.
After hearing arguments from both sides about the merits of broadening the TRO to cover all detainees who were threatened with summary deportation under Trump's proclamation, Boasberg orally ordered the government to "immediately" halt the flights and make sure that no one in that class was turned over to Salvadoran authorities, even if it meant "turning around a plane." He said "any plane containing these folks that is going to take off or is in the air needs to be returned to the United States," emphasizing that "those people need to be returned to the United States."
Boasberg confirmed that order in writing, saying he was provisionally certifying the proposed class and enjoining the government from removing anyone in it pending further proceedings. Although Ensign assured Boasberg that the named plaintiffs would not be sent to CECOT, the government did not comply with the rest of his order. That raised the question of whether the government had deliberately defied the TRO, a dispute that hinged partly on the Trump administration's claim that the other detainees had already been "removed" at the point when Boasberg issued his written order because they had left U.S. airspace. Boasberg later concluded that the evidence "strongly support[ed]" the conclusion that federal officials had "willfully disobeyed" his order.
The evasive conduct that Boasberg cited suggests the Trump administration was less open to judicial review than Weiss implied in her memo. So do the positions that the administration took during the ensuing litigation.
'Not Subject to Judicial Review'
"The Court lacks jurisdiction because the presidential actions [the plaintiffs] challenge are not subject to judicial review," the government's lawyers argued in a March 17 motion asking Boasberg to vacate his TRO. And even if "any review were available," they added, it would have to take the form of habeas corpus petitions filed in the Texas district where the detainees were held.
After Boasberg rejected that motion, the government asked the U.S. Court of Appeals for the D.C. Circuit to block Boasberg's order while the case was pending. At this stage, the Trump administration was still arguing that the president's use of the AEA "would not be subject to review." But after the D.C. Circuit declined to issue a stay and the government asked the Supreme Court to intervene, Acting Solicitor General Sarah M. Harris retreated from that position.
"The AEA buttresses the President's Article II authorities over national security by expressly empowering him to remove alien enemies—a power that this Court has held is largely unreviewable," Harris wrote. "The exception is for habeas claims challenging enemy-alien detention. The government agrees that a cause of action would be available to respondents." But she said any such claims "must be brought where [the detainees] are held"—i.e., "in Texas."
The Supreme Court agreed with that back-up position and therefore vacated Boasberg's TRO. But the justices unanimously rejected the Trump administration's initial claim that AEA deportations "are not subject to judicial review" at all.
"'It is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings," meaning "the detainees are entitled to notice and opportunity to be heard 'appropriate to the nature of the case,'" the Court said on April 7 in Trump v. J.G.G. "AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."
The following month, the Supreme Court intervened again in response to complaints that the Trump administration was not following that instruction. "Notice roughly 24 hours before removal, devoid of information about how to exercise due process rights
to contest that removal, surely does not pass muster," the Court said on May 16. It remanded that case to the U.S. Court of Appeals for the 5th Circuit, instructing it to consider two issues: Does the AEA authorize the detainees' removal, and what sort of notice does due process require for people threatened with deportation under that law?
Although the Supreme Court had yet to address the first question, several federal judges, including a Trump appointee in Texas, had rejected the president's idiosyncratic definition of "alien enemies," saying it was contradicted by copious historical evidence. But as the Trump administration saw it, those judges had no business making that call. "The president's determination that the factual prerequisites of the AEA have been met is not subject to judicial review," Ensign told the 5th Circuit in April.
That position was at odds with what the Supreme Court had said in Trump v.J.G.G. "Although judicial review under the AEA is limited," the majority said in that case, "we have held that an individual subject to detention and removal under that statute is entitled to '"judicial review"' as to 'questions of interpretation and constitutionality' of the Act as well as whether he or she 'is in fact an alien enemy fourteen years of age or older.'"
The Court's instructions to the 5th Circuit confirmed that judicial review was not as limited as Ensign had argued. And on remand, the appeals court concluded that Trump's invocation of the AEA was not supported by the law's text or history. In particular, the 5th Circuit ruled on September 2, there was "no invasion or predatory incursion" to justify Trump's use of the law.
'A One-Way Ratchet'
Trump has asserted similarly broad authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA). Although that 1977 law does not mention import taxes and had never before been used to impose them, Trump claims it empowers him to impose any tariffs he wants against any country he chooses for as long as he deems appropriate, provided he perceives an "unusual and extraordinary threat" from abroad that constitutes a "national emergency" and avers that the import taxes will "deal with" that threat.
The U.S. Court of Appeals for the Federal Circuit rejected that audacious power grab in August. After the Trump administration asked the Supreme Court to reverse that decision, it encountered similar skepticism during oral argument in November, including pointed questions from several conservative justices.
Justice Amy Coney Barrett questioned the government's position that the power to "regulate importation" under IEEPA can be "understood to include tariff authority." Chief Justice John Roberts seemed inclined to agree with the Federal Circuit that Trump's use of IEEPA to completely rewrite the tariff schedule approved by Congress implicated the "major questions" doctrine, which requires explicit statutory authorization for policies with far-reaching economic consequences. And while Trump claimed to be addressing a foreign threat, Roberts noted, "the vehicle is imposition of taxes on Americans," which has "always been the core power of Congress."
Justice Neil Gorsuch likewise was troubled by the government's argument that "we shouldn't be concerned" about impermissible delegation of congressional powers because "the president has inherent authority" over "foreign affairs." If so, Gorsuch wondered, "what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce" or even "declare war"?
Illustrating the extent of the tariff powers that Trump had claimed, Gorsuch asked whether the president could "impose a 50 percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change." Based on the government's understanding of IEEPA, Solicitor General D. John Sauer conceded, "it's very likely that that could be done."
Gorsuch also noted the long-term implications of endorsing the government's position. "Congress, as a practical matter, can't get this power back once it's handed it over to the president," he said. "It's a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people's elected representatives."
Those questions and comments did not bode well for Trump's position, especially given the skepticism expressed by Justices Sonya Sotomayor, Elena Kagan, and Ketanji Brown Jackson. As in the AEA cases, Trump claims a combination of statutory authority and his inherent powers as president gives him carte blanche to act as he chooses, subject only to his own determination that the requisite conditions exist.
Trump's National Guard Retreat
Trump took the same basic position in response to lawsuits challenging his National Guard deployments. Under 10 USC 12406, the president "may call into Federal service members and units of the National Guard of any State" when he is "unable with the regular forces to execute the laws of the United States." That determination, Trump argued, is not subject to judicial review.
The U.S. Court of Appeals for the 9th Circuit rejected that claim in June, even as it allowed Trump's National Guard deployment in Los Angeles to continue. "We disagree with Defendants' primary argument that the President's decision to federalize members of the California National Guard under [Section 12406] is completely insulated from judicial review," it said.
Last week, the Supreme Court went further, declining to issue a stay that would have allowed Trump to deploy National Guard members from Illinois and Texas in Chicago. The majority concluded that Trump's understanding of "the regular forces" was probably wrong. While the government argued that the phrase refers to civilian law enforcement officers, the Court said in Trump v. Illinois, the historical evidence suggests it actually refers to "the regular forces" of the U.S. military, meaning that provision "likely applies only where the military could legally execute the laws."
The impact of that preliminary decision extended beyond this particular deployment. On Wednesday, the 9th Circuit ordered an end to Trump's control of National Guard troops in California, noting that the government had withdrawn its opposition to a federal judge's injunction against that deployment in light of the Supreme Court's ruling in Trump v. Illinois. Also on Wednesday, Trump said he would stop trying to deploy the National Guard in Portland, Oregon, as well as Chicago and Los Angeles.
In all of these cases, Trump asserted broad authority based on unilateral declarations that he claimed were insulated from judicial review. And in all of these cases, the courts rightly pushed back, asserting their authority to uphold the rule of law.