Let the Executive Execute
A late-night filing from the Solicitor General calls on the Supreme Court to step back and let the executive branch do its job.
Late last night, the Solicitor General filed a supplemental brief in A.A.R.P. v. Trump, a case that, despite its sleepy docket number, may end up testing just how far the courts are willing to micromanage lawful executive action under the guise of emergency equity.
At issue is whether the Biden administration can deport a small group of detainees—176 by Homeland Security’s estimate—under the Alien Enemies Act. Some are allegedly affiliated with foreign terrorist organizations. The district court refused to certify the class. But the Supreme Court, in a surprising administrative move, stepped in last week to temporarily bar removals anyway.
Now the SG is politely but firmly asking the Court to reconsider. She’s right to do so.
First, the procedural posture here is not murky. It’s a mess. The plaintiffs are not a certified class. Their theories of harm vary wildly. The lower court explicitly denied class certification, finding that their claims lacked the cohesion required by Rule 23. In other words: no class, no classwide relief.
Second, the equities have shifted. The longer this stay remains in place, the more it creates a practical Catch-22. Homeland Security cannot remove the detainees, but it also cannot release them. The result? A limbo detention regime that serves neither justice nor public safety. This is the predictable and predicted outcome when courts preemptively halt lawful executive functions without full briefing or a factual record.
The irony here is that many of the same voices who decried the “shadow docket” just a few terms ago are now urging the Court to keep the lights off and the injunctions flowing. But as the SG points out, this is no longer about preserving the status quo. It’s about entrenching a legal fiction that harms the very balance of powers the Court is supposed to protect.
The administration isn’t asking for a blank check. It’s asking to carry out lawful removals under long-standing statutory authority, now backed by the latest district court order denying class status. If individual plaintiffs have credible claims of unlawful detention or removal, they can pursue them individually, just like everyone else.
This Court has often spoken of judicial modesty. It should practice some here. Let the executive execute. The rule of law depends on it.