“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Judge Justin Walker, nominated by Donald Trump to the federal court of appeals for the District of Columbia Circuit, argued in dissent that the Trump Administration could summarily deport and imprison in El Salvador a number of migrants that it claims are members of a Venezuelan gang. The 2-1 majority in the case, including conservative Bush I nominee Karen LeCraft Henderson, rejected the Administration’s challenge to temporary restraining orders (TROs) halting such action as the case goes forward. The March 2025 decision is in JGG v Trump. The government has asked the Supreme Court to stay the DC Circuit ruling pending appeal.
What happened in this case?
Earlier in March, the Administration decided to immediately and summarily deport a number of migrants from Venezuela to a prison in El Salvador known for mistreatment of detainees. The action was ordered under a law that advocates contend only applies when the U.S. is under military invasion by a foreign nation: the Alien Enemies Act (AEA), which gives the President authority to order immediate deportations during wartime.
A lawsuit was filed by five individuals on behalf of a class of immigrants that challenged these actions, and federal district judge James Boasberg entered a TRO stopping such deportations. As part of the significant controversy that has resulted, the Trump DOJ filed an appeal with the DC Circuit, and asked for an emergency stay of the TROs.
How did the appeals court decide and why was Judge Walker’s dissent dangerous?
In a brief unsigned order, the DC Circuit denied the government’s motion for a stay by a 2-1 vote. Each of the three participating judges wrote a separate opinion, including Judge Henderson and Obama nominee Judge Patricia Millett in the majority and Walker in dissent.
Walker claimed that the case should not have been decided in DC at all, but instead should have been brought as a writ of habeas corpus by the immigrant detainees who were plaintiffs in the case and were confined in a prison in Texas. Walker maintained that the TROs are harming “delicate negotiations with foreign powers” on issues relating to “national security.” Combined with the public’s interest in “swiftly removing dangerous aliens,” he went on, that harm outweighs the plaintiffs’ interest in obtaining TROs in Washington.
As Judge Henderson explained, however, the use of the AEA “risks exiling plaintiffs to a land that is not their country of origin” where they and others could well face mistreatment and torture. As she pointed out, the government conceded that if the TROs were stayed, it would “immediately begin deporting plaintiffs without notice” and the plaintiffs contend that the government has “renditioned innocent foreign nationals” in its pursuit of the Venezuelan gang, resulting in instances of alleged “brutal torture” with “electric shocks and suffocation.” As she wrote, there is a strong “public interest” in preventing “wrongful removal” of immigrants, “particularly to countries where they are likely to face substantial harm.”
Judge Millett explained what was wrong with the claim that the issues in the case should be resolved through individual habeas proceedings for specific detainees. The plaintiffs do not want “release from detention” as habeas proceedings could provide, she wrote. Instead, “they want to stay in detention in the United States” and not be sent without due process to a prison in another country where they face mistreatment and torture. This makes the challenge to the Administration’s actions the “appropriate vehicle” in this case.
Millett was particularly critical of the Trump administration’s effort to seek a stay of a TRO that it, “at the very same time it is telling the district court is not an order” that it had to comply with. “Heads the government wins, tails the district court loses is no way to obtain exceptional relief of a TRO stay.”
After the DC Circuit order, the government asked the Suprme Court to lift the stay that had been ordered by Judge Boasberg. As of April 2, that request remains pending with the Court.
This litigation is continuing and may well reach the Supreme Court. Walker’s dissenting view would vastly expand the power of the President under the AEA and strike a troubling blow against the rule of law and the ability of the courts to check abuses of power by the executive branch. The majority ruling, in contrast, vindicates these important values. The case also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.