A U.S. Appeals Court Rules Against Trump's Suspension of the Right to Due Process

In my previous post, I wrote about Federal District Court Judge James Boasberg's temporary restraining order (TRO) blocking Trump's effort to deport hundreds of Venezuelans without allowing them their right to due process of law.  This TRO was for only 14 days.  But Trump's government lawyers appealed the case, arguing that a delay in the deportations of even a few days would do irreparable damage to the U.S., and therefore they asked the U.S. Appeals Court for the D.C. Circuit to stay this TRO.

By a 2-1 vote, in J.G.G, et al. v. Donald J. Trump (U.S. Court of Appeals, D.C. Circuit, No. 25-5067, March 26, 2025), the Court denied the emergency motions for stay.  The majority consisted of Circuit Judge Karen LeCraft Henderson (appointed by President George H. W. Bush) and Circuit Judge Patricia Millett (appointed by President Barack Obama).  The one dissenter was Circuit Judge Justin Walker (appointed by Trump).

To grant a stay pending appeal, the Court does not render a final decision on the merits of the case, but it must consider the applicants' likelihood of success on the merits.  It must also consider whether the applicant faces irreparable injury without a stay, whether granting a stay will irreparably injure the other parties in the case, and whether the public interest would be served by denying a stay.

The two judges in the majority decided that the Government was unlikely to win the case on the merits because the President's proclamation for deporting these Venezuelans was probably illegal and unconstitutional in denying them due process of law.  They also decided that if they granted a stay of Boasberg's TRO, the injury for the Venezuelans would be far greater than any injury to the Government from denying the stay.  And, finally, they decided that the public interest did not demand a stay.

In his dissent, Judge Walker made two arguments for why the Court should have granted the stay.  His primary argument was that the Government was likely to win the case on technical grounds: the Plaintiffs' claims for relief require a habeas corpus petition, and a habeas petition should have been brought in Texas where they were detained rather than in Washington, DC.  

His second argument was that "the Government likely faces irreparable harm to ongoing, highly sensitive international diplomacy and national-security operations," because any delays in the deportations of the Venezuelans will disrupt the Government's negotiations with El Salvador and Venezuela over whether they will accept the deportees (Walker, 22).

I have written about the plan to make Trump the Red Caesar.  And one can see here that the Government lawyers are making the legal arguments for allowing Trump to become the Red Caesar.  The primary question is whether Trump has the power to interpret the laws--statutory laws and the Constitution--for himself and to refuse to accept the courts' interpretation of the law.  If Trump can interpret the law for himself, that means that his will cannot be restrained by law because his will is the law, which allows him to become a tyrant with absolute power.  As Trump says, "I can do anything I want as president."

The majority in this case have found that the "original public meaning" of the Alien Enemies Act (AEA) does not allow Trump to deport Venezuelan immigrants accused of being Tren de Aragua gang members without allowing them a hearing in which they can present evidence that they are not members of that gang.  First of all, the AEA is restricted to circumstances in which the U.S. is in a "declared war" with a foreign nation, or in which there has been some "invasion or predatory incursion" by a foreign nation.  Congress has not declared war with Venezuela, and Venezuela has not launched an "invasion or predatory incursion" against the U.S.

Trump's Government lawyers argued that the word "invasion" in the AEA encompassed "the arrival somewhere of people or things who are not wanted here."  The judges pointed out, however, that the text of the law, its context, and its history all supported the conclusion that the original public meaning of the term "invasion" was used in a military sense.

Moreover, the judges indicated, other statutory laws of Congress--such as the Administrative Procedures Act--clearly require due process of law in a case like this.  Trump's proclamation denies due process, and therefore it is illegal.  It is also unconstitutional insofar as it denies the Fifth Amendment's guarantee that "no person shall be . . . deprived of life, liberty, or property, without due process of law."

Trump's Government lawyers responded to this by claiming that the President has the authority to interpret the laws in any way he wishes, and therefore the courts have no authority to impose on the President their own interpretations of law.

The two judges in the majority answered this claim by pointing out that the Constitution vests the "judicial Power of the United States" in federal courts, and it is surely the case that it is the duty of the judiciary to say what the law is (Millett, 26-32).  Trump's lawyers said that interpreting the laws in this case was a "political question," and under the "political questions" doctrine, the courts cannot decide purely political questions.  But clearly, the Court argued, interpreting laws is a legal question, not a political question, and thus it clearly falls within the judicial power.

We see here the crucial questions that will probably have to be resolved by the Supreme Court.  Does President Trump have the authority to interpret the laws as he wishes, and thus refuse to accept the interpretation of the laws coming from the courts?  Or must the President be constrained by law as interpreted by the courts?

If the Supreme Court says yes to the first question, then the courts cannot limit Trump's power.

If the Supreme Court says yes to the second question, then Trump is likely to refuse to obey their decision.

In either case, Trump's power will not be checked by the courts.  And if the Congress continues to allow Trump to make laws by issuing executive orders, then he will have combined the executive and legislative powers of the federal government in his own hands.

We will then be under the one-man absolute rule of the Red Caesar, as advocated by Michael Anton, Curtis Yarvin and others who look forward to a "postconstitutional order" ruled by Trump.

Americans will then have to take one side or the other in the debate between Robert Filmer and John Locke in seventeenth-century England--passive obedience to the king, even when he claims absolute power, or active resistance to tyranny. 

That will be the subject for my next post.