Advisory Opinions - 🚨 Trump (Kind Of) Wins On Alien Enemies Act

Episode Date: April 8, 2025

Sarah Isgur and David French review the Supreme Court’s emergency decision on the Trump administration’s use of the Alien Enemies Act. The Agenda: —Due process matters —The clean hands problem —More forum shopping —What is “reasonable notice”? —Firing probationary workers —Amy Coney Barrett and John Roberts are the new swing votes Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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["I'm Ready"] Welcome to Advisory Opinions, an emergency podcast about the emergency docket. I'm Sarah Isger, that's David French, and David, we have now three buckets of emergency docket decisions. One, the money, two, immigration, and three, the firings. And we're going to spend most of our time on the immigration part of this docket because that's where we have the most meat, especially this decision on the removal of those Venezuelan aliens who are removed under the Alien Enemies Act.

And look, David, here's the punchline. Is this a Marbury versus Madison emergency docket case? You know, Sarah, it just might be. We might be watching some jujitsu here, and we're going to explain why. We normally don't like to go with jujitsu 4D, 9D chess explanations, but I detect, we detect more than an aroma of jujitsu here,

and we'll explain. And in that case, this wasn't just a partial loss for the administration, you know, oh, they're saying that they won and they can use the Alien Enemies Act and this gets thrown out of the court that they were in. Like, this would be a huge and total loss from the majority as well.

Yeah, exactly. They lost 9-0, but then they also lost 5-4. They just don't know it yet. But before we get to that, let's just refresh. Let's start with the money bucket. So to table set for a moment, for Trump administration purposes, we have had four emergency docket things come out. I don't quite want to call them decisions, and you'll see why in a second.

Two have had to deal with money going out the door. Those were both five, four decisions. One was on the foreign aid assistance that we talked about. That was sort of the original one. Amy Coney Barrett sided with the chief and the liberals that money that had already been obligated for work that had already been done needs to go out the door and at least sent that one back down to the district judge

who indeed did order the money to go out the door. That made a huge splash and everyone got real mad at Justice Barrett, yada yada yada. That was a few weeks ago. This week, we also then had the one we talked about in yesterday's episode. Well, probably today's episode for some of you. Anyway, that one was also about money going out the door to a whole bunch of different states who then sued. That one was also 5-4. Justice Barrett switched sides, so to speak. But as we explained, it was maybe more of a process foul, if you will, that the appropriate place to sue was the federal court of claims. That's where you go if you want your government money or the government owes you money. So it wasn't really on

whether the money was owed or not, etc. First up, David, we got a very short order from the Chief Justice, basically an administrative stay, not from the court, just the Chief Justice. This is on that case of the man from El Salvador who had protected status here in the United States, who was nevertheless put on a plane back to El Salvador. Now there's been a lot of confusion over this case, so I just want to clarify the facts here because the headlines all say there was an administrative error, right? And that's true, but a little misleading.

Basically he came to the country illegally. He had had a full hearing and was a removable alien. However, a judge also found that if he was removed to El Salvador, his life could be in danger because his mother had had problems with a different gang, Barrio 18, I believe is the name. So, they were allowed to remove him. The administrative error was that they were not allowed to remove him to El Salvador, where in fact they removed him. So he was a removable alien.

He had had all of his process, et cetera. The immigration judge had found that he was a member of MS-13, but he was just not supposed to be removed to El Salvador. He was removed to El Salvador. So the question for the court... Did he find that he was a member of MS-13 or that there was evidence that he belonged to MS-13? Well, David, I thought what I read

was that the immigration judge, in fact, found that there was sufficient evidence that he was a member of MS-13 such that he was a removable alien. But you know what? You're probably right that I should be a little more careful in that language. But regardless, the district judge in this case, his wife and family filed for him to be brought back.

The district judge said, yes, US government, you must figure out a way to talk to El Salvador, find this guy, and bring him back. Then they go to the circuit court, who they hadn't heard from at that point. They had since heard from the circuit court, who denied it. And what John Roberts has said as Chief Justice is, hold on, we want briefing by the end of Tuesday, which by the way, it is in fact, not even noon on Tuesday and that briefing has already been submitted. And he said just you don't have to bring him back

until we hear more from the parties on this case. So an administrative stay, nothing on the merits. But do you have thoughts on that one, David? I really don't. I read nothing into it one way or the other. I mean, the poor circuit was, you know, relatively emphatic that the United States needs to try to bring him, you know, to undo the deportation of El Salvador. But I literally have no view on

Roberts' stay. I just, I have nothing to read into it. I don't necessarily think it is. I don't think there's much we can read into it, quite frankly. I'll read a little more into it. I think there are more foreign policy implications here than the district courts have really been willing to let on.

I think you've got a problem of like a clean hands problem from the government. Mistakes happen but boy you guys sure seem to be trying to make mistakes or at least creating a process by which a lot of mistakes happen. However, once a removable alien is already been removed, it is a weird question of what you can do to order the government to figure out how to get him back and under what sort of auspices you can do that. And I think that's going to be a real issue for the court now that they seem to be interested here. Yeah, I mean, on the one hand, the administration has been very flippant back to them

sort of saying, oh, well, you don't have jurisdiction over this El Salvadoran prison. On the other hand, the court does have jurisdiction over the United States. And so how does that work is an actual very interesting question. When I say I'm not reading one way or the other into I don't, I'm not reading by the fact that he entered this day. I'm not reading into that, how that question is going to resolve itself.

I agree with that. But, but it is an interesting question. And it does show one of the reasons why the administration was so keen to enact this proclamation and then hustle these people out of the country that creates facts on the ground that create legal complexities. But the administration is being way too flip and sort of saying, you can't do anything now because they still do have jurisdiction. The court still has jurisdiction over the United States. And I do find it, I would be a bit surprised if we got to the point where what we're going to

talk about in the next case, that they're owed due process. And yet for these folks, it's like, well, whoops. Well, this is different, though, because in this case, he was given all sorts of process and lost that basically. They would have been able to detain him for instance. He was a fully removable alien under the INA. And by the way, on that MS-13 thing, let me just be very, now that I found the language. The immigration judge agreed that the evidence showed that Abrego Garcia is a verified member of MS-13,

citing the fact that a past proven and reliable source of information had verified Abrego Garcia's gang membership rank and gang name. And the immigration judge noted that Abrego Garcia had failed to present evidence to rebut the assertion that he is a gang member. Now, I've seen stuff in the media about like, well, that person has recanted

or they weren't a reliable witness, et cetera. All of that is sympathetic, but not legally relevant, right? You have an immigration judge who's already heard this case. So that's all to say, like, this is going to be very different from a due process standpoint. The due process was already done. They were allowed to remove him at any point from the country. They just weren't allowed to remove him to El Salvador. That is the only issue here.

Now, remember, the Chief Justice is going to, in those previous two emergency docket cases, when it comes to the money, the Chief Justice is on the, nope, you owe the money, get the money out the door side. Or at least, you know, yeah, basically that. Now we're moving to the immigration side. We have this one administrative stay issued by the chief.

Let's do case number two, where the chief is also going to be on the majority side here. This emergency docket case is on the Venezuelan folks that we've talked about before. So now we're moving from aliens removable under the INA the Venezuelan folks that we've talked about before. So now we're moving from aliens removable under the INA over to whether aliens are removable under the Alien Enemies Act.

Totally different statutes, and that's gonna be really relevant here. Now, some interesting facts though. For the five aliens that are specifically at issue in this emergency docket case that we're moving to now, they were already in detention under the INA. But the government wants to remove them under the Alien Enemies Act. Why? Because the INA, you're due all sorts of process like we saw with Abrego Garcia, right?

This hearing in front of an immigration judge and maybe you're not, you know, you have protected status from being removed to certain countries, you know, asylum hearings, all of that stuff. Under the Alien Enemies Act? Well, maybe no processes due, maybe minimal processes due, etc. So in this case, you have the five Venezuelans and then the judge makes a putative class of removable Venezuelans, basically someone in the country who does not have citizenship or lawful permanent resident status who would be removable. And that judge, this is the like bring the planes back case, right? He issues a temporary restraining order saying you cannot remove anyone under the Alien Enemies

Act. And if the plane's in the air, you need to bring it back, but that's an oral order or whatever. You may remember this conversation from earlier. Now that judge is very clear. If you can remove them under the INA, feel free, go ahead. All this applies to is if you're trying to remove someone under the Alien Enemies Act. You can't do it. So we have another five-four case. In the majority, we have the Chief Thomas Alito Gorsuch Kavanaugh, and in descent, you're going to have Sotomayor, and in dissent, you're gonna have Sotomayor, Kagan, Jackson and Barrett. Now, the fight here is going to be not over whether they're due process to quote Justice Kavanaugh's concurrence,

but where they're due process. So I made a list of all the places in which the dissent disagrees with the majority, but I want to stop there, David, in case you have any table setting you think we need to do. Yeah. So this case is already sort of the chum and the water around this case is so misleading. Because it's been cast as 5-4, and it is 5-4 on some pretty narrow issues and

it's 9-0 on the bigger picture. So it's 5-4 on narrow issues such as where do you have the due process? So that was a relatively narrow issue, obviously very important as to whether the TRO would remain in place. Also a narrow issue whether they should have reviewed the TRO would remain in place. Also a narrow issue, whether they should have reviewed the TRO to begin with. So that was another issue. So those things are much more narrow issues.

Is it habeas or are you challenging through a habeas petition or are you challenging through another mechanism? So those things are what I would call ancillary issues. On the core, core issues, which are really twofold. One, do they get a due process before removal? The answer is nine, no, unequivocally yes. And do they have the opportunity to challenge

the application of the Alien Enemies Act itself? Absolutely yes. And so on the big issue, on the due process issue, on the challenge to the AEA issue, that's very clear. And there's also this very interesting thing. So publicly on Fox, on Twitter, et cetera, you are seeing an awful lot of administration people scorning the idea that due process is available here at all. But in the litigation, the Trump administration was conceding to the court that there is some due process that is gonna be available here.

So this was a very weird situation because you had to say Stephen Miller and others going on Fox and saying no due process, no due process. And the administration's lawyers going to the Supreme Court saying, yeah, court, we know there's some due process. So that's when we talk about the five-four split, that split is not on what I would call those core issues.

It is a much more on the ancillary issues. And it's the Trump victory on the ancillary issues that is causing them to sort of trumpet this thing, which in reality, this decision actually vitiated much of the reason for using the Aliens Enemies Act in the first place. Yes, probably, and no, maybe. Okay, so as David said, nine, zero,

that there's some process to, and of course there is, because otherwise you could just scoop up David and deport him and be like, oh, we thought he might have been Venezuelan. We don't even know. So obviously David needs some chance to say, I'm not Venezuelan. And in fact, I'm a US citizen. Like no problems. And that's where the administration was conceding. Of course, you have to have some ability to say, actually, I'm a US citizen who is not even targetable under the Alien Enemies Act. I think where they're going to then disagree on how much processes do is whether the courts

can actually look into whether there's an invasion, whether they can look into whether this Venezuelan gang is working in cooperation with the Maduro regime in Venezuela, things like that. But there's no question that you, as a person targeted, get to raise your hand and say, this doesn't apply to me. OK. So on the five four part, though, I think there's six areas where the dissenters disagree. However, in five of those areas, there's only three dissenters.

Justice Barrett only joins for one of those areas. So I'll mark which one is Justice Barrett's, but I'll go kind of in their order. One, the dissent feels that because this was a temporary restraining order, it wasn't appealable. The temporary restraining order was only going to be temporary, and then there was going to be a hearing this week to decide whether to issue

a preliminary injunction. So why is the court getting involved in the first place? You should have just let the whole thing continue to play out. The majority's answer to that is, so you wanted us to delay this further when our whole point is that we're going to say that that's in the wrong court and in the wrong venue, plus these TROs being used in lieu of preliminary injunctions so that they're not appealable, no thank you. So that's number one. Number two, and this is where Justice Barrett

is going to join the dissent. So this is a five-four issue. When you're suing about the Alien Enemies Act, you're suing about an executive action. Therefore, believe it or not, this falls under the Administrative Procedies Act, you're suing about an executive action. Therefore, believe it or not, this falls under the Administrative Procedures Act, in which case you can sue in the DC District Court, which is what they did.

What the majority is saying is no, in fact, like death penalty, like Gitmo, like anything else, when you are being detained by the government and you are arguing about the wrongfulness of your detention, that's a habeas action. And you need to bring a writ of habeas corpus. And the proper venue for a writ of habeas corpus is where you are being detained. All right. The dissent disagrees with that. And again, this includes Justice Barrett because these people were already detained, like I said. They were already detained under the INA.

So the dissent's argument is, they're not arguing to be released. They're not arguing that they're being unlawfully detained. They're only arguing about the applicability of the Alien Enemies Act, and that's an APA thing. To which the majority says, yeah, but like when you bring a habeas petition against your death penalty claim, you're not trying to get released from prison.

You're trying to get your sentence of the death penalty sort of removed from over your head, you know, commuted, whatever word you want to use. So it's never been like I want to be released. It's that in some respect, something that has happened to me that is part of why I'm here is unlawful. I want to run through the rest of these, David, and then I want to go back to that one to get your read on it. Number three, and again, now we're back to at least a five, three, because we don't really know where Barrett is. She didn't join this part of the dissent,

but she also didn't concur in part and dissent in part. Right. So we just have no Barrett on these parts. This didn't need to be on the emergency docket. The Supreme Court didn't need to get involved. Slow down. Slow your roll. Supreme Court number four. This is now going to open up forum shopping because the government will get to choose where to hold these folks and therefore get to choose where they can file their writ of habeas corpus.

Interesting for the Supreme Court to acknowledge forum shopping is a problem. Number five, if everyone has to file an individual habeas claim, what about people who can't find counsel? What about people, you know, are we really talking about hundreds, thousands of habeas claims being filed around the country? This is why we need universal relief. So we're really at its core back to this fight over universal injunctions, class actions, temporary restraining orders, forum shopping.

It's all here, folks. And then number six, the clean hands argument. It's one thing for the government to come in and ask for equitable relief, but you have to have clean hands. And here the government shenanigans where basically they get everyone loaded on the planes before they even issue the proclamation

on the Alien Enemies Act, and then get the planes in the air while the hearing's going on, does not show clean hands. It shows that this was all orchestrated in advance to try to prevent review by the court system. All right, so those, I think, are these six areas of disagreement, again, in that very limited sense. As you said, David, there's nine-oh on some process, too.

But on the limited sense, any of those six you wanna pick out and argue with? I would say I'm generally with the majority, except I am very much with the dissent on the clean hands argument. Hard not to be. And yeah, it really is. And that's one where I think that's not a side issue. This sort of idea that, you know, when you're talking about injunctions, this is what's called traditionally equitable relief.

Courts, just to give a very brief history lesson, courts hear actions in law and equity. Actions in law tend to involve actions in the civil context tend to involve actions involving money damages. Actions and equity are much more in the judge's discretion. And a lot of, and this involves where judges are gonna ask you to do something, compel you to do something or not do something. This is sort of the world of injunctions. And so there's word equity has real meaning in this context.

Or you're saying this is an unusual situation where fairness and equity require a judicial intervention. And in that circumstances, judges traditionally are very, very, very down on gamesmanship because they're not going to allow you to get away with a ton of gamesmanship and then walk into court and impose, quote, fairness and equity on the other side. Yep. They're just not going gonna allow that to happen.

And so from my standpoint, I think they lose, the administration loses on unclean hands because I think there has to be a deterrent effect imposed on the administration for its gamesmanship in its conduct of, in its arguments around equitable relief. So that's the way I found the dissent most compelling. I thought the majority is quite compelling about habeas as the venue and habeas traditionally is undertaken where the person is detained. So all of that's quite normal. But one thing that's very interesting just circling back to this alien enemies act,

why did they invoke it when they could have deported a lot of these folks anyway? A lot of them were in detention anyway. Why did they want the Alien Enemies Act? They wanted the Alien Enemies Act not because they couldn't deport them otherwise, because they wanted to really deport these people ASAP. What is habeas though? Habeas is a proceeding in a federal district court. You're being slotted into the docket of a federal district court. And the habeas proceedings, the general matter, are not super fast summary proceedings.

As a general matter, a habeas proceeding is a serious proceeding. And so now if you're moving into habeas, unless the courts, these federal district courts, now, and there's no guidance for what the actual process is gonna be in this opinion, but if the federal district courts are applying normal kinds of habeas inquiry, that is not a super fast summary proceeding at all.

And so that's when I say a lot of the logic the administration was using for the use of the Aliens Enemies Act is just vitiated here. Because even if the habeas proceeding is deemed to be relatively summary or the district court judges put in a kind of a summary proceeding, this is in federal district court. This is being slotted into their dockets

and their jurisdiction. This is absolutely going to slow down the process. No question about it. And so, and then it explicitly says they're gonna have that ability to challenge the, you know, the applicability of the Aliens Enemies Act to this situation. And so I would expect Sarah to see by judicial standards

in relatively short order, this issue is gonna be back with the Supreme Court, and it's gonna be back with the Supreme Court on is the Aliens Enemies Act appropriately applied to this gang. And that's, you know, putting on my Nostradamus cap, I think we're going to have version, we're going to have the sequel to this case. Let's drive good together with Bonterra and Volkswagen. Buy any sustainably focused Bonterra bathroom tissue, paper towel, or facial tissue and

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Until June 30th, every purchase of a Miele dishwasher or laundry machine supports the preservation and restoration of Canadian forests through the Miele Forest Initiative. Join us in making an impact today for a better tomorrow. Visit Miele.ca to learn more. So that's what makes this interesting, right? The why, why did the Supreme Court do what they did if it's going to be back anyway? And I think David, you just answered the question, which is if you totally undermine their whole reason for doing the Alien Enemies Act, will

they stop doing the Alien Enemies Act part? In which case, it doesn't get back to the Supreme Court because what you're about to have is a flood of hundreds, maybe more habeas petitions going right now, at least to the Southern District of Texas would be my understanding. And by the way, a little footnote here. When we talk about forum shopping, I think people paint with a broad brush about which types of courts get these cases. If you're a judge in the Southern District of Texas, you've basically never gotten an

interesting case in your life because it's a large court that's actually pretty mixed. They tend to get violent crime cases, a lot of business cases, a lot of bankruptcy appeals. So interesting if they're about to get hundreds of these cases. Shout out to friend of the pod down there, Charles Eskridge, who might have his docket kind of filled up here. We'll see. But to your point, David, and here I'll read from Sotomayor's dissent, and this was joined by Jackson Kagan and Barrett for this part. Therefore, under today's order, courts below will probe, among other things, the meaning of an invasion or predatory incursion and ask, for example, whether any given individual is in fact a member of Tren de Aragua. Even

the government has now largely conceded the point. So too do we all agree with the per curiam's command that the Fifth Amendment requires the government to afford plaintiffs notice after the date of this order that they are subject to removal under the act within reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs. That means of course that the government cannot usher any detainees, including plaintiffs, onto planes in a shroud of secrecy as it did on March 15, 2025, nor can the government immediately resume removing individuals without notice upon vacatur of the TRO as it promised the D.C. Circuit it would do. To the extent the government removes even one individual

without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court. David, this is interesting because we have spent some time talking about judgment versus dicta. And right, dicta, we've said, kind of in the eye of the beholder because everything except the judgment is dicta. Arguably, the whole opinion is dicta because it's really only the judgment. Now, I think the more accepted standard is if the part of the opinion that you need to get to the judgment,

that's not dicta, and everything else that you don't need to reach this judgment is dicta. In this case, David, the only judgment is to dissolve the TRO, direct the court to dismiss the case. That's it, because then all these guys have to file their habeas petitions. That's the only judgment here. So I say to you, David, that all this stuff about process and about the Fifth Amendment, there's a whole Justice Kavanaugh concurrence

just about this point. As you said, it's nine zero, I think it's dicta. So that line about you be ignoring an edict by the United States Supreme Court, edict is a weird word there. But you know, at some point it's a sort of a so what, because here's the language from the majority. More specifically in this context,

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 in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs. I it's very difficult to then walk into court and say to a judge, wait, did you give notice? No. So no notice at all. Or did you give notice? Yes. Nine minutes before they were boarded on the plane. Is that a reasonable time in such a manner? No. But your honor, that's dicta.

Is that a reasonable time in such a manner? No, but your honor, that's dicta. I guess, David, you maybe have just convinced me that actually the reasonable notice is part of the finding on habeas. Yeah. And therefore, ugh. But really all this found was that it wasn't the proper. If it says must. You've mostly convinced me

it's so what. You've mostly convinced me. Yeah. You've mostly convinced me it's so what. You've mostly convinced me. Yeah. You've mostly convinced me. Okay. So I mentioned Kavanaugh's concurrence in which he basically just really, really underlines the process point. I agree with the court's procurium opinion. Importantly, as the court stresses, the court's disagreement with the dissenters is not over

whether the detainees receive judicial review of their transfers. All nine members of the court agree that judicial review is available. The only question is where that judicial review should occur. That venue question turns on whether these transfers claims belong in habeas corpus proceedings or instead may be brought under the Administrative Procedures Act. I agree with the court's analysis that the claims must be brought in habeas and he references must be brought in habeas and he references Guantanamo Bay and even going back to the English habeas corpus act of 1679. Good times. There is also a Jackson separate descent and remember I sort of talked about the institutionalism of having all these separate voices. Jackson's descent seems to be for one purpose, David. Nobody joined it.

Just to cite Korematsu and to say, this is another Korematsu, I'll read you the relevant point. I lament that the court appears to have embarked on a new era of procedural variability and that it has done so in such a casual, inequitable, and in my view, inappropriate manner. At least when the court went off base in the past, it left a record so posterity could see how it went wrong.

See E.G. Korematsu. With more and more of our most significant rulings taking place in the shadows of our emergency docket, today's court leaves less and less of a trace. But make no mistake, we are just as wrong now as we have been in the past with similarly devastating consequences. It just seems we are now less willing to face it."

Look, I'm actually not going to even push back on the Korematsu point so much as say, how much in the shadows can it be when I'm reading 25 pages of opinions and you wrote a whole separate dissent? How is that different than anything else in terms of the shadowy part of it? I understand you didn't have full merits briefing and you didn't have oral argument, but the shadow part, like, no, here's 25 pages.

You guys all wrote what you wanted to write, not in the shadows. We're having a whole podcast about it. You know, Sarah, I am not a fan, it's a general matter of 9D chess analysis. You know, I'm much more in favor of sort of the Occam's razor. People, you know, absent compelling evidence to the contrary. People mean what they say.

There isn't complex machinations behind the scenes that are just, you know, brilliant beyond our comprehension. But I do sense an element. I'm not going to say 9D chess, 4D, maybe 1D beyond our normal. In this sense, and you hit the nail on the head, is will the administration continue to use the AEA if every time they use it they're in federal district court? Will they do that? And so that's where the nine or 40 chess comes into play is there's been a lot of conversation about will there be this big clash between the Supreme Court

and the White House? And what the majority seems to pull off here is an opinion that has vitiated the logic behind the use of the AEA, but grants this very small, limited victory over the TRO, where we're now in the process of the administration celebrating and spiking the football on a court decision that actually severely constrains them as a practical matter. And so it's a very interesting situation, Sarah, because

the logic of using the AEA has been largely been vitiated by this very decision, the one that the administration is spiking the football on. And I don't know if that's what Justice Roberts intended, but it is what has happened. And it's very interesting to watch it play out. Yeah, because remember their alternative is to go through the administrative process of the immigration courts and the immigration judges, which was all created because it would be more efficient

than going through federal courts. So they're now given the option to go the hard way if they wanna use the Alien Enemies Act or the easier way of going through the immigration courts, which are not Article III courts, and in theory, much more efficient. David, so we've talked about the money bucket and the two cases in that. We've talked about the immigration bucket and the two cases in that.

David, we have the third bucket, which is on firings. Remember, we had the special counselor Walter Dellinger suing over his firing, but then he dropped his lawsuit. It was basically mooted out. We had kind of had a five-four, you know, weight in the bayons from the Supreme Court, but not enough for even for us to spend much time on. We now have another one on the firings. This is a 7-2 win for the Trump administration to be able to fire these probationary workers. However, it's not on the merits. It's on standing that the nonprofit organizations that brought the case don't have standing on behalf of these probationary

workers. Justice Sotomayor would have denied the application and Justice Jackson would have also waited and not done it on the emergency docket. So David, we have money, immigration, firings. We're seeing where all the justices are lining up on this. It looks like the Chief Justice and Justice Barrett are your two swing votes right now on the emergency docket. What have you learned about the Chief or Justice Barrett in particular now that we have six-ish cases?

Process matters. Process matters. So they're really not going to the court. We haven't really hit on the merits of these cases yet. Now, on the deportation case, the Alien Enemies Act case, they did hit on the merits of the due process claim and made it unmistakably clear that there is due process and that due process is mandatory. They did not hit at all on the idea,

did not touch at all on the idea that the AEA was unconstitutionally invoked in this circumstance. You know, if you're talking about the money cases, and in one case you had money that had been obligated based on work performed, and in another case you had a claim for money that you could have made in a different court.

And the argument for the majority was that there's no real damage being done here by going through the proper process, what they call the proper process. And then this one is a process standing case as well. So, you know, everyone's racing up to the Supreme Court and it's the most predictable thing in the world that the court is not going to necessarily be deciding exactly what you want it to decide as fast as you want to decide

it. And that a lot of the cases that are going to come up to them are going to be decided on these process issues that are going to give a short-term win or loss to one of these two sides but provide very little indication, like this one. It's a standing case. Gives us no insight, zero insight into the underlying legality of the firing of the probationary employees. So at this early stage, all of your cases are going to be seriously process-influenced, much more than substance-influenced. And that's my takeaway. The justice and Justice Roberts, Justice Barrett's

process matters. I will say, I think where you see some daylight between the Chief Justice and Barrett, I think both of them, you're right, I think process matters. Where you see daylight, for instance, on this Venezuelan case, I think the chief justice is pulling a Marbury versus Madison-esque jiu-jitsu move on the administration, as we described David, by saying, yes, definitely, you get to do it through habeas, which you're not going to want to do. And so basically removing the Supreme Court from being the, you know, the ping pong getting whacked back and forth.

And it looks to me like Barrett is not particularly interested in those type of reindeer games. I don't know how many in the majority are interested in them either. I think they're there for different reasons potentially. The one I'm sort of curious about is Justice Kavanaugh. Given his concurrence, I think that may be a very subtle hand raising for the reindeer games, the Marbury versus Madison jujitsu. But we'll need at least one more example for me to flesh out that Marbury versus Madison theory.

And with that, David, thus endeth our emergency pod on the emergency docket. Thanks for joining. Thanks for joining.