Folks:
Here is a special discussion with Ryan Goodman, of
(which just launched its own must-subscribe Substack. A link to it is in the postscript).We explain the dramatic series of events on Friday, leading up to the Supreme Court decision (7-2) in the wee hours of Saturday morning preventing (for now) the Trump Administration’s efforts to thwart judicial review of its actions, namely its hasty forcible removal of American residents — with no judicial review — to a foreign prison from which the Trump Administration has said it cannot arrange a person’s return. Meaning, once removed, the Trump Administration claims it cannot undo any illegal removals.
The Supreme Court’s decision is here.
How this came about, and what to expect now, is the subject of this terrific conversation with Ryan.
Take a listen. Stay engaged.
—Andrew
P.S. You can enter your email below to join
’s mailing list. Highly Recommend!
TRANSCRIPT
Andrew Weissmann:
Hi, folks—it’s Andrew Weissmann, and it’s Saturday at 2:51 PM my time. I’m here with Ryan Goodman, who I usually think of as my co-teacher, since we teach national security law together. Ryan is also a professor at NYU Law School and the Co-Editor-in-Chief of Just Security.
For those of you who follow me on Substack or on MSNBC, you’ve probably heard me mention Just Security frequently. It’s an outstanding law forum, and the thing I keep highlighting is their litigation tracker. It catalogs all of the lawsuits brought against the Trump administration since January 20th. Ryan, I think I heard you say the tracker is now up to 196 cases?
Ryan Goodman:
That’s right—it’s currently 196.
Andrew Weissmann:
I must’ve looked an hour too early then. It’s a fantastic resource. It’s not just a random list—it’s categorized by topic. So, for instance, if you’re looking for everything related to birthright citizenship, it’s all right there. And it’s designed for both lawyers and non-lawyers, which is rare.
Beyond the litigation tracker, Just Security offers a lot more. And, full disclosure, Ryan won’t say this himself, but he’s been leading the charge as they’ve now launched a Substack to reach even more people. I’m subscribed and have started listening—it’s excellent. Whether you’re reading sharp legal commentary or listening to Ryan’s mellifluous voice on the podcast, there are now many ways to engage with their work.
But Ryan, let me actually kick us off—because I’ve been singing Just Security’s praises for a while now. We’re here to talk about the truly dramatic legal developments that unfolded yesterday and culminated early this morning in a Supreme Court ruling. I imagine many of our listeners are aware of it. I thought we might start with the Supreme Court’s decision and then work backward: how we got here, what it means, and where it’s likely headed.
So, at around 1 AM this morning, the Supreme Court issued a decision that appears to be 7–2, with two noted dissenters—presumably meaning seven justices concurred. It’s a short order. Ryan, what exactly did the Court do?
Ryan Goodman:
The Supreme Court essentially granted an administrative stay—freezing the status quo. That means the government is temporarily blocked from deporting individuals from the Northern District of Texas under the purported authority of the Alien Enemies Act.
This all came to a head because lawyers in the case—especially the ACLU—received word Friday morning from some detainees in the Northern District that they were being told they were about to be put on flights to El Salvador.
Andrew Weissmann:
From what I read, they were already being placed on buses—so, being moved out of detention facilities and toward air transport. Presumably, they were being readied for deportation. And as our listeners likely know, this is playing out in multiple legal arenas.
We’ve already seen two plane loads of individuals deported in violation of an order from Judge Boasberg, who had either grounded the flights or instructed that any in midair return. There are now contempt proceedings connected to those flights.
And in the Garcia case out of Maryland, there’s a clear admission that someone was wrongfully removed—he’s currently imprisoned in El Salvador. Despite a Supreme Court order instructing the government to “facilitate his release,” the government’s stance is essentially: there’s nothing we can do.
So the concern is: once the planes take off, jurisdiction may be lost, and the government might avoid any further legal obligations.
Ryan Goodman:
Exactly. That’s the context in which the ACLU acted. They filed an emergency motion with the Supreme Court to block removals from the Northern District of Texas. They did this because Judge Hendricks, who had the case in that district, was not responding to the urgency.
Andrew Weissmann:
And Hendricks is the federal district court judge, correct? So initially, the ACLU applied to him to halt the removals.
Ryan Goodman:
That’s right. There was already a standing case before Judge Hendricks, well before Friday. The ACLU had two named plaintiffs and wanted to certify a broader class—anyone currently in detention in the Northern District who might be subject to deportation under the Alien Enemies Act.
What they asked for was simple: freeze everything in place to stop people from being removed before the court could review their claims.
Andrew Weissmann:
And Judge Hendricks denied that request?
Ryan Goodman:
He denied a temporary restraining order (TRO), which was unusual—other judges, like those in Colorado, the Southern District of Texas, and the Southern District of New York, granted TROs in similar situations. His reasoning? The government promised not to remove the two named plaintiffs before the hearings.
Andrew Weissmann:
Judge Boasberg, by contrast, had granted an administrative stay earlier in this process.
Ryan Goodman:
Absolutely.
Andrew Weissmann:
So, what’s Judge Hendricks’ logic for denying the TRO? He trusts the government’s word?
Ryan Goodman:
Yes—he essentially said: since the government has promised not to deport these two individuals for now, there’s no imminent harm, and thus no TRO is needed. The ACLU responded by asking: what about everyone else being held? They’ve been in direct contact with the government, asking for the same assurances for the broader class, and didn’t get them.
Ryan Goodman:
I think the government’s timeline was intentionally indefinite. It’s essentially the equivalent of a TRO—they’re saying, “We won’t do anything to interfere with the court’s jurisdiction over these two individuals.”
Andrew Weissmann:
So, if you’re being cynical—guilty as charged—what it sounds like is this: the government is reassuring the judge about the two named plaintiffs, saying, “Don’t worry, Judge,” while simultaneously moving to deport everyone else. And because there’s no stay in place for that larger group, they’re trying to push through removals before the courts can act.
This isn’t hypothetical. It comes out of the same case Judge Boasberg has been handling—where he was told by the government, “Nothing’s happening,” and yet the planes took off anyway. That’s why he’s held contempt hearings and found probable cause that his order was violated.
Andrew Weissmann:
So, while Judge Hendricks is sitting on this broader class of detainees, the ACLU goes to the Fifth Circuit—an appellate court known for being conservative, though that’s not to say they don’t follow the law. But unusually, they also go straight to the Supreme Court. That reminded me of the kind of triage we’d do in death penalty work—you go to every venue you can when there’s a true emergency.
So, Ryan, they filed with the Fifth Circuit and the Supreme Court—what happened next?
Ryan Goodman:
Well, first Judge Hendricks acted. People were waiting for him to say something, and eventually he did. He said he’d been working diligently and was planning to rule, but that he was understaffed—it was Good Friday. He actually said that more than once in the opinion. And I have to say, the opinion wasn’t well written. It showed that they were stretched thin.
Andrew Weissmann:
To be fair, it was a high-pressure moment.
Ryan Goodman:
Absolutely. And to his credit, he did make a legal argument that’s at least technically reasonable, even if it’s debatable. He said that because the case had been appealed to the Fifth Circuit, the district court no longer had jurisdiction to act. So, his ruling was essentially: “I’m out. I can’t rule anymore—you’ve taken this upstairs.”
Then everyone waited: Would the Fifth Circuit act? Would the Supreme Court?
Ryan Goodman:
There are a few big things worth highlighting here. First, I agree with you—this is a race. And based on what the government told Judge Boasberg, they’re essentially confirming what’s been reported by The New York Times and ABC News: that the administration is bringing people from all over the country to the Northern District of Texas for imminent deportation.
And at a hearing before Judge Boasberg, the same government lawyer—Ensign—couldn’t even guarantee that planes wouldn’t leave on Saturday. That’s how urgent it was.
Andrew Weissmann:
Let me step back for a moment. We’ve talked about Judge Hendricks in Texas, the Fifth Circuit, and the Supreme Court—but how does this land back in front of Judge Boasberg?
Ryan Goodman:
Right, so originally the case started in front of Judge Boasberg. But the Supreme Court said that challenges to deportation must be brought as habeas petitions—meaning, in the district where the person is physically located. That’s why we’ve now got parallel cases in Texas, New York, and elsewhere.
However, there are still some related matters that remain before Judge Boasberg. And in theory, even those who’ve already been deported to El Salvador could bring issues to him, since they’re now outside any U.S. district.
Andrew Weissmann:
Exactly. The logic is rooted in due process: people must receive notice and have an opportunity to be heard. But under the Court’s current rule, the legal mechanism they have to use—habeas corpus—has to be filed in the location where they’re held.
Ryan Goodman:
So in this moment, the ACLU tries everything. They go back to Judge Boasberg with an emergency motion. On April 16th, they had already filed a TRO request based on the Supreme Court’s ruling that deportations under the Alien Enemies Act require notice.
Their argument was strong: this isn’t a habeas issue, it’s a constitutional right to notice—and that can be asserted anywhere. Honestly, I think they could have made that point even more clearly during the hearing.
For example, they could have said: this applies even to people not currently in detention. Imagine someone walking free, who the government identifies as a target under the Alien Enemies Act. The right to notice would still apply—and they’d need time to challenge it.
Ryan Goodman:
So the ACLU made a smart move. On Friday, after hearing that people were being loaded onto buses, they filed an emergency motion asking Judge Boasberg to issue a nationwide TRO based on the independent constitutional right to notice.
Without it, they’d have to run to every district in the country, filing individual habeas claims, just to slow the deportations.
Ryan Goodman:
Judge Boasberg responds with two key points.
First, and this is pretty extraordinary, he says—and this is quoted in The New York Times—“I strongly doubt that the notice, particularly with a short timeframe, complies with the Supreme Court instruction where it doesn’t give anything about the right to challenge or seek a hearing.” In other words, he thinks the government is probably violating the Constitution.
But second, he says: I don’t have jurisdiction. This case is too close to the type the Supreme Court has told me not to hear—it needs to go through habeas in the district where the person is held. He also says, basically, “I know this is going to the Supreme Court no matter what, so I shouldn’t interfere.”
Ryan Goodman:
And finally, he says: I have to respect the process, even if I’m not required to. The case is now with Judge Hendricks and the Fifth Circuit. I don’t want to overstep.
The ACLU lawyer made a great suggestion: why not issue a TRO that only lasts until the Fifth Circuit rules? That way you’re not stepping on anyone’s toes.
Still, Judge Boasberg said no. And I think, given his reasoning, that was fair.
Andrew Weissmann:
To be fair to the ACLU, I understand why they’re doing what they’re doing. But Judge Boasberg is being asked to issue an order that another judge—who has primary jurisdiction—has already said no to. So while I don’t fault the ACLU, I do understand the bind that puts Boasberg in. He’s saying, “Look, this has already been ruled on. You’ve appealed it, and now that’s your path.”
But I want to zoom out for a second and talk about the big picture: Boasberg said he doesn’t see how what the government is doing aligns with the Supreme Court’s ruling.
Let’s be clear—the Supreme Court, when it affirmed Judge Boasberg, said that people are entitled to due process to challenge their removal under the Alien Enemies Act. That includes the right to notice and a meaningful opportunity to be heard. And that ruling came out of the situation with two planeloads of people who were removed without such notice or opportunity. There’s no indication those due process rights were honored.
So now, Judge Boasberg is reacting to this mad dash in the Northern District of Texas and saying, “This doesn’t align with what the Supreme Court said.” And it’s important to understand what the government is actually doing here. These people are in detention. There’s no rush. They’re not an imminent threat to the public. There’s nothing preventing the government from providing proper notice, allowing access to counsel, and letting individuals challenge whether the Alien Enemies Act even applies to them—legally or factually.
And beyond that, even if the law does apply, the factual question still stands: is this specific person actually part of the group targeted under the proclamation? Are they a gang member? Or are they someone wrongly swept up in this? Mistakes happen. We know this—Garcia is the proof.
So why rush? Unless the goal is to prevent these individuals from challenging their removals, and to keep the courts out of it entirely. That’s the only reason I can see for this kind of urgency—to exercise unilateral, unchecked power. Once the person is out of the country, the government gets to say, “Oops, nothing we can do.”
And let’s be honest, it’s not just careless—it’s lawless. Judge Wilkinson, from the Fourth Circuit, pointed this out. The government says, “Garcia might be a bad actor.” And Wilkinson’s response was, “Maybe he is, maybe he isn’t. But if you believe that, take it to a hearing. Present the evidence. Let a judge decide.” That’s what due process means.
So where are we? Two district judges have declined to issue a stay. There’s an application pending in the Fifth Circuit. And there’s also an emergency application in the Supreme Court. The question now is: who will act first?
Ryan Goodman:
Let me just add a couple of quick points.
First, about Judge Wilkinson—people should know, he’s a Reagan appointee and a deeply respected conservative jurist. He has an enormous following among conservative legal thinkers. Back in 2003, he even criticized the decision in Hamdi v. Rumsfeld, which upheld the government’s ability to indefinitely detain a U.S. citizen captured in Afghanistan. That’s who we’re talking about here. And he’s saying the government’s conduct in the Garcia case is indefensible.
Second, just to show where we are as a country: within the last 24 hours, the Wall Street Journal editorial board published a piece titled “Judge Wilkinson’s Sage Advice on Abrego Garcia.” They echoed his point exactly. It doesn’t matter whether Garcia is a gang member. The legal issue isn’t guilt—it’s process. They wrote: “If we don’t give due process to the people we think are guilty, then everyone’s at risk.”
Andrew Weissmann:
And here’s the irony. If anyone should understand the importance of due process, it’s someone who’s been a criminal defendant in four cases—two federal, two state. That would be Donald Trump. He’s enjoyed due process at every turn. He’s had access to counsel, the ability to challenge charges, and all the procedural protections the courts afford.
Now he’s turning around and supporting a system that denies those same rights to others. That’s hypocrisy. Prosecutors and judges can make mistakes. That’s the whole point of due process—to catch those mistakes before lives are irreparably damaged.
As Judge Beryl Howell said, “Off with their head, trial to follow”—that might work in Alice in Wonderland, but that’s not how the American legal system works.
Ryan Goodman:
One final note before we get into what happened at the Fifth Circuit and Supreme Court. Tom Jocelyn and I just published a piece on Just Security that outlines three separate due process violations in Garcia’s case. And in two of them, the government has already admitted they violated the law.
Andrew Weissmann:
So here’s what happened: the Supreme Court ruled just after 1 a.m. But, interestingly, it appears they didn’t realize the Fifth Circuit had already ruled. Their order assumes the issue is still pending.
They issued an administrative stay saying, “No one should be deported from the Northern District of Texas under the Alien Enemies Act until further order.” And they invited the Solicitor General to bring a petition if and when the Fifth Circuit issued a ruling.
But in fact, the Fifth Circuit had ruled just before midnight. They denied the emergency motion.
Ryan Goodman:
And that denial was based on a technical point—they said the case was premature. That Hendricks hadn’t ruled yet, so the appeal came too soon.
Now, there’s a veneer of legality to that. But I want to point out something about the Fifth Circuit’s opinion. It’s either deeply mistaken, or disingenuous.
Here’s what they said: “The district court entered an order indicating the government states it will not remove the petitioners during this litigation.” And their logic was—if the petitioners are concerned, they should go back to the district court.
But here’s the catch: the petitioners are just the two named individuals. The government only promised not to deport those two. The entire emergency appeal was about everyone else—the planeloads of people not covered by that promise.
So, to quote the Fifth Circuit’s opinion back at them—it’s just wrong. And it’s not a technicality. It’s the whole case.
Andrew Weissmann:
I want to take a moment to talk about the timing of the Supreme Court’s decision, which came down shortly before 1 a.m. In the case before Judge Boasberg, he had been pressing the government’s lawyer—someone he’s dealt with before, particularly around the previous controversy of planes taking off despite court orders.
The government told Judge Boasberg there would be no removals from Texas on Friday. However, they added a crucial caveat: they reserved the right to resume flights on Saturday—meaning just after midnight.
So, essentially, the government said: “Don’t worry about today, but as of 12:01 a.m., we may begin removals again.” You can imagine how that would feel to the justices. They’d already ruled that due process includes notice and a meaningful opportunity to be heard—that wasn’t happening. In the Garcia case, the Court ordered the government to facilitate his release, and that also wasn’t happening.
So, you have this incredibly narrow window of time where removals might occur—and the justices act fast. It’s likely they didn’t realize the Fifth Circuit had already ruled. Their order even says the matter is pending. But again, no fault there—things were moving incredibly quickly.
Another unusual point: they didn’t wait for the dissenting justices. The order notes that Justices Thomas and Alito dissented, with a statement from Alito to follow. But the Court didn’t wait because that delay would have left no protection in place. Time was of the essence.
Let me read the language from that 7–2 ruling:
“The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.”
Not “requested.” Not “urged.” Directed.
It reminds me of what a friend once said: “Fool me once, shame on you. Fool me twice, shame on me.” That’s the posture the Court took here.
We’re seeing a kind of legal whack-a-mole. Because habeas petitions must be brought where people are held, we’re now getting a proliferation of cases—Colorado, Texas, New York, D.C.—with various judges ruling separately. That makes the burden on the ACLU and detainees far more difficult. Still, I think this is a good news story. The courts are standing up—at the district level, at the appellate level with Judge Wilkinson, and now at the Supreme Court.
Andrew Weissmann:
Personally, I still believe we won’t see a direct violation of a Supreme Court order. Will there be bad-faith arguments? Possibly. But I don’t think we’ll see the White House defy a clear directive.
I say that as someone who spent over 20 years in government and 10 years as a defense lawyer—I may be too institutionally hopeful, but I believe the line won’t be crossed, at least not blatantly.
Ryan Goodman:
I think that line has already been crossed—in the Garcia case. And I think they did it knowingly.
The big question is whether the government would ever openly say in court what some, like Stephen Miller, are willing to say on Fox News: “We don’t need to follow the courts. This is Article II power.” Maybe they won’t go that far. But are they already making farcical, obviously bogus arguments? I think yes.
The Supreme Court clearly upheld Judge Xinis’s order requiring the government to facilitate Garcia’s release. Yet in her courtroom, DOJ argued all they had to do was “make it easier for him to come back” if he finds his way to the U.S. That’s not facilitation. And they know it.
Andrew Weissmann:
I agree. That’s a reasonable interpretation—and Judge Wilkinson agrees with you. He didn’t say they were in defiance, but he did say their reading of “facilitate” doesn’t match the English language.
He noted that “facilitate” is an active verb. Sitting back and waiting for Garcia to return is not facilitating—it’s allowing him to stay in detention. That’s Judge Wilkinson’s view, and it resonates with me.
So, Ryan, this is an ongoing story. I hope we get to do this again.
Just a reminder to our audience—Just Security is available in many formats. You can go the old-school route and read it online, or you can now subscribe to their new Substack. Ryan’s been posting excellent updates during the week, and it’s a fantastic way to stay informed.
There’s going to be a lot more litigation on this issue—possibly even more from the Supreme Court—and multiple contempt proceedings unfolding in Maryland and D.C. And, as you rightly said, the government may already be in contempt of the Supreme Court’s order in the Garcia case.
Thanks again, Ryan. Enjoy the rest of your Saturday afternoon.
Ryan Goodman:
Thanks, Andrew. Great to be with you.
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