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Experts analyze SCOTUS order barring summary deportations

homesafetytechpros — Sun, 20 Apr 2025 06:24:07 +0000

President Donald Trump speaks as he signs executive orders in the Oval Office of the White House, Thursday, April 17, 2025, in Washington (AP Photo/Alex Brandon).

Legal experts were quick to parse the U.S. Supreme Court’s “massively significant” order barring the Trump administration from carrying out deportations using the Alien Enemies Act (AEA).

In a highly unusual early Saturday morning ruling — the first and only Saturday order issued this term — the nation’s high court tersely ordered the government “not to remove” any immigrant detainees subject to deportation flights in the Northern District of Texas.

“[T]he Court didn’t wait at all,” Georgetown University Law Prof. Steve Vladeck wrote on his blog. “This may seem like a technical point, but it underscores how seriously the Court, or at least a majority of it, took the urgency of the matter.”

The law professor noted that the justices waited neither for an appellate court to rule on the issue nor gave the government a chance to respond to the emergency request before issuing the order.

The order comes as the next step in a parry-and-thrust sequence involving the Trump administration’s use of the obscure wartime law.

In mid-March, the government invoked the AEA. Though immediately enjoined by U.S. District Court Chief Judge James E. Boasberg, officials ignored that court order and promptly flew two planes full of immigrants to a notorious prison in El Salvador. One of the men on one of those flights, Kilmar Armando Abrego Garcia, had an explicit — and separate — court order barring him from being deported to El Salvador.

While the justices dissolved Boasberg’s national injunction, the court also forbade the government from conducting any further deportation flights under the AEA without due process. To that end, the court prescribed writs of habeas corpus in relevant district courts as the way forward for detainees challenging putative AEA deportation.

Then, a few days later, in a separate case, the justices unanimously directed the government to “facilitate” Abrego Garcia’s release from the torture-plagued Salvadoran lockup facility.

But in the past week, President Donald Trump and high-ranking White House officials have misconstrued — and arguably mocked — the high court’s ruling as a 9-0 victory for the government. Meanwhile, at least two other courts, one appellate and one district, pointed out that those rulings were actually defeats for the government, albeit limited ones.

Simultaneously, attorneys across the country have been following the high court’s guidance by filing class-action-seeking habeas petitions in jurisdictions where it is believed immigrants are being housed in anticipation of potential third-country deportations under the AEA.

Such a filing came in Texas on Wednesday; quick work from the court system got the emergency application before the Supreme Court on Friday. Within hours, at least five — and as many as seven — justices voted to stay pending AEA removals of immigrants in North Texas.

The plaintiffs in the case, represented by the American Civil Liberties Union (ACLU), saw fit and were able to avail themselves of the extraordinary intervention because the district court judge denied the original request for a temporary restraining order in the case.

On Thursday, U.S. District Judge James Wesley Hendrix, who was appointed by President Donald Trump during his first term, denied the motion for a restraining order, crediting a statement from Department of Justice attorneys that none of the detained plaintiffs faced “imminent risk of summary removal” under the AEA.

That promise may not be worth much to the high court, according to legal commentator and attorney Ed Whelan, a former clerk for late Justice Antonin Scalia who helped advise Justice Brett Kavanaugh during his contentious confirmation hearings.

Calling the order “extraordinary” in a post on X (formerly Twitter), Whelan suggested there was only one explanation for the order.

“[T]he Court does not trust the Trump administration to abide by its promise to the district court,” he wrote. “And given how unworthy of trust the Trump administration has proven to be, that’s an ample explanation.”

Vladeck appeared to more or less agree with this estimation.

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As news of renewed AEA flights circulated this week, the ACLU returned to Boasberg on Friday — the original AEA case — and asked for another temporary restraining order.

During a hastily called hearing, the DOJ hedged its bets.

“I’ve spoken with DHS, they are not aware of any current plans for flights tomorrow,” Deputy Assistant Attorney General Drew Ensign said. “I have also been told to say that they reserve the right to remove people tomorrow.”

Boasberg declined to grant relief, but Vladeck said the justices were likely keenly aware of the government’s position.

“In a world in which a majority of the justices were willing to take these kinds of representations at face value, there might’ve been no need to intervene overnight Friday evening; the justices could’ve taken at least all day Saturday to try to sort things out before handing down their decision,” the law professor wrote. “The Court appears to be finally getting the message — and, in turn, handing down rulings with none of the wiggle room we saw in the J.G.G. and Abrego Garcia decisions last week. That’s a massively significant development unto itself — especially if it turns out to be more than a one-off.”

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Trump says injunction barring spending freeze was limited

homesafetytechpros — Sat, 08 Mar 2025 15:41:12 +0000

FILE — President Donald Trump throws pens used to sign executive orders to the crowd during an indoor Presidential Inauguration parade event in Washington, Monday, Jan. 20, 2025 (AP Photo/Matt Rourke, File).

The Trump administration and a collection of nonprofits are fiercely arguing over the scope of a weeks-old court order that pumped the brakes on the controversial government spending freeze.

On Jan. 28, the National Council of Nonprofits (NCN) filed one of the first lawsuits against the defunding scheme. That same day, U.S. District Judge Loren L. AliKhan, a Joe Biden appointee, issued a stay on the freeze — which she later extended into a temporary restraining order. On Feb. 25, the judge issued a preliminary injunction.

On March 4, the plaintiffs accused the government of effectively violating the terms of the injunction by way of a “cramped interpretation” that has frozen some $3.6 billion in anti-homelessness funds that were previously “awarded to various grant recipients.”

On Friday, the U.S. Department of Justice fired back — accusing the plaintiffs of trying to squeeze “broader” relief out of the court.

“Plaintiffs’ requested relief highlights that they are seeking to use this Court as a superintendent over Executive Branch decisions relating to the obligation of funding,” the government’s response argues.

The disputed language bars agencies “from implementing, giving effect to, or reinstating under a different name the directives in” the Office of Management and Budget (OMB) memorandum “with respect to the disbursement of Federal funds under all open awards.”

To hear the plaintiffs tell it, this language means the government has to fund grants that have been awarded but not yet paid.

The government, however, citing the original temporary restraining order, says the court defined “open awards” in a more limited fashion as “ones that have already been approved and partially disbursed.”

The injunction itself does not purport to define “open awards.” So, the nonprofits are asking AliKhan what she meant by that phrase.

“[Defendants] interpret the Court’s references to ‘all open awards’ in the preliminary injunction order to mean not ‘all’ open awards but instead only those open awards that have been ‘partially disbursed,”” the motion to clarify reads. “Plaintiffs respectfully submit that Defendants’ approach does not accord with either the letter or the reasoning of the Court’s preliminary injunction order and decision.”

The nonprofits offered up their preferred definition. They asked the court to define the term as “all awards that have been awarded — i.e., that the recipient has been notified of the decision to award the grant, loan, or other financial assistance or the award has otherwise been made public,” according to the motion to clarify.

The Trump administration insists there is no confusion to ferret out.

“The Court’s orders were unambiguous, and Plaintiffs did not object to Defendants’ use of this definition in their written notice regarding the Court’s temporary restraining order,” the motion in opposition reads. “The Court should reject Plaintiffs’ motion, because the Court’s order was not vague or ambiguous.”

The government also says the nonprofits have already relied on the definition in the temporary restraining order — and can’t change it now.

From the DOJ’s motion, at length:

In fact, Plaintiffs represented that the Court’s temporary restraining order provided them the relief they sought, and stated that their preliminary injunction motion was only requesting relief within the same bounds. Yet now, weeks after Defendant first filed a written notice containing this language, Plaintiffs seek to contest this definition of “open awards,” on the rationale that the Court’s own reference to open awards “does not appear to be what the Court was actually saying.”

The nonprofits say the “narrow interpretation” advanced by the government would result in substantial harm to its member groups.

“[T]he harms from Defendants’ irrational Freeze Order would be especially severe for those who had already been awarded and were counting on receiving (or may even have begun to draw on) federal financial assistance,” the motion to clarify reads. “That reasonable reliance on being able to access financial assistance that has already been awarded, and the harms to recipients from Defendants’ sudden halt to such assistance, exist regardless of whether disbursement on an open award has yet begun.”

The nonprofits go on to say they believe the injunction does, in fact, cover such awards but acknowledge the court may not have understood its own order to deal with such funding. So, in the alternative, the plaintiffs “ask that the Court address such awards now.”

The government counters that the enjoined behavior is all about “disbursements” and argues the plaintiffs want to fashion a new order that encompasses the “obligation” of funding.

“Plaintiffs’ attempt to do so only underscores the fact that they seek to use this lawsuit to turn this Court into a superintendent over countless Executive Branch decisions made by non-defendant agencies relating to federal funding,” the motion in opposition reads. “This would include superintending individual agency decisions such as the signing of grant agreements or the determination of whether applicants have satisfied conditions imposed on their awards.”

The nonprofits now have until March 10 to file a final motion on this issue.

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Oregon law barring secret audio recordings does not violate First Amendment, en banc appeals court says

homesafetytechpros — Sun, 12 Jan 2025 11:10:45 +0000

First Amendment

Oregon law barring secret audio recordings does not violate First Amendment, en banc appeals court says

By Debra Cassens Weiss

January 9, 2025, 11:14 am CST

A federal appeals court has tossed a challenge to an Oregon law that generally bans secret audio recordings. (Image from Shutterstock)

A federal appeals court has tossed a challenge to an Oregon law that generally bans secret audio recordings.

The en banc 9th U.S. Circuit Court of Appeals at San Francisco ruled Tuesday that the conversational privacy law does not violate the First Amendment.

Law360, Reuters, the Volokh Conspiracy and the Legal Profession Blog have coverage.

The Oregon law generally requires people making an audio recording to notify the target. It was challenged by the activist group Project Veritas, which uses undercover journalism in support of its conservative message.

The law’s “relatively modest notice requirement” is narrowly tailored to a significant government interest in letting Oregon residents know when their conversations are being recorded, the appeals court said in the 9-2 decision.

Judge Morgan Christen, an appointee of former President Barack Obama, wrote the majority opinion.

“Because Oregon’s statute does not discriminate on the basis of viewpoint or restrict discussion of an entire topic, we conclude it is content neutral, and that it survives intermediate scrutiny,” Christen wrote.

The Oregon law has several exceptions to the ban on unannounced audio recordings.

One exception allows oral recordings of conversations during a felony that endangers a human life. Another allows audio recordings of conversations by a law enforcement officer performing official duties in plain view, when the person making the recording has a lawful right to be there. Yet another allows open audio recordings at public gatherings and in private meetings in which participants can reasonably expect that they are recorded.

The 9th Circuit said the law is content neutral because it does not draw distinctions based on a speaker’s viewpoint and was not enacted because of disagreement with a speaker’s message. It also allows other alternatives that allow a would-be recorder to disseminate a message.

“Project Veritas retains numerous alternative channels to engage in its journalistic speech activities,” the 9th Circuit said. “It may employ all the traditional tools of investigative reporting, including talking with sources, reviewing records, taking photographs, recording videos openly during public and semi-public meetings and events, recording videos that do not capture oral conversations, recording conversations after announcing it is doing so, and making use of Oregon’s freedom-of-information laws.

“Project Veritas may have its reporters go undercover and report on what they have seen and heard—without secretly recording its targets—as journalists have done for centuries.”

Project Veritas lawyer Benjamin Barr said his client will seek review with the U.S. Supreme Court. He told Law360 that the decision upholds the “broadest recording law in the nation” and “suffocates a reporter’s ability to investigate corruption and work with whistleblowers.”

The case is Project Veritas v. Schmidt.

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