The Great Writ

Yesterday I had the privilege of participating in a panel discussion co-sponsored by Ohio Northern University’s and Mississippi College’s Colleges of Law on AARP(WMM) v. Trump.  This panel discussion had been planned well ahead of time but, as luck would have it, the 5^th Circuit Court of Appeals issued their ruling on the motion for a preliminary hearing on Tuesday evening.  My focus was on the habeas corpus aspect of this case and all the cases involving Venezuelan detainees facing deportation under the Alien Enemies Act.  The defining event for these cases and habeas corpus was the Supreme Court’s ruling in J.G.G. v. Trump in which the Court held that the appropriate manner in which to challenge the invocation of the AEA was via habeas corpus.  Even challenging a deportation rather than detention was still a “core” habeas function.  The immediate consequence of this ruling was jurisdictional.  A habeas corpus petition may only be brought within the federal district in which the detainee is confined.  Thus, if the detainee is in Texas, the petition must be filed in the appropriate federal district court in Texas.  It is not possible to seek a more favorable jurisdiction within which to file the petition.  As a consequence, the first court to hear these cases on appeal was the 5^thCircuit Court of Appeals – often recognized as the most conservative circuit in the country.  Other Circuits stayed appeals in similar cases awaiting the decision of the Fifth Circuit in AARP(WMM) v. Trump.

The second consequence of forcing these cases into habeas is a potential shift in the manner in which number similar petitions can be filed.  Specifically, questions are being asked about the legality of class action certification for a large groups of these detainees in habeas corpus.  Why does it matter? – because requiring each detainee to obtain their own separate counsel would be unduly burdensome on the detainees (particularly given the proposed short notice time and deadlines to file a habeas petition) as well as unduly burdensome upon the Federal District Courts that would have to hear and rule on all of these separate cases.

In 2018, in Jennings v. Rodriguez, Justice Thomas noted in a concurrence that the Supreme Court “has never addressed whether habeas relief may be pursued in a class action.”  Even though he Supreme Court has never definitively ruled on the appropriateness of a class action habeas cases, six Federal Circuit Courts as well as the DC Circuit Court of Appeals have adopted a form of class action certification for habeas cases.  The remaining districts seems to have allowed the practice without formally commenting on its propriety.  The only reason that there are questions about this now is that in a series of dissents (both in the US Supreme Court and the Fifth Circuit Court of Appeals) over the summer, the issue has been raised.  These comments include the comment on March 26, 2025 by Judge Walker in a dissent in the case of J.G.G. v. Trump In which he observed that “Whether Plaintiff’s can seek habeas relief through a class action … seems to be an open question for the [lower] court to resolve in the first instance.”  On April 19, Justice Alito (joined by Justice Thomas) dissented to an emergency order in AARP v. Trump in which he said, “Although the Court provided class-wide relief, the District Court never certified a class, and this Court has never held that class relief may be sought in a habeas proceeding.”  Then, on May 9, the Federal District Court for the Northern District of Texas addressed this issue in J.G.G. v. Trump by noting that “there is a significant question whether class certification is ever appropriate for habeas proceedings.” 

Perhaps most significantly, on May 16, Justice Alito (joined by Thomas) dissented in in AARP v. Trump and stated, “it is doubtful that class relief may be obtained in a habeas proceeding.”  Justice Alito criticized the reasoning that some federal courts have relied upon to extend class relief to habeas corpus and observed that, “[a]s a general matter, the call action device is uniquely ‘ill-suited’ for habeas proceedings, which often turn on individualized and fact specific determinations regarding the confinement of a specific prisoner.  While it is true that this dissent was to an emergency docket decision, thus limiting the time for thorough treatment, nonetheless Justice Alito’s authority for questioning the applicability of class actions to habeas is very, very thin.  The sum total of sources he cites to are a student note from 1968 and a student drafted survey of cases from 1970.  The majority of the Supreme Court  in AARP skirted the issue by indicating that it wasn’t necessary for the Court to decide whether a class should be certified because it could issue temporary relief to a putative class without making that determination.

 Most recently, on Tuesday, Judge Oldham of the Fifth Circuit Court of Appeals, in his dissent to the decision in W.M.M. v. Trump (formerly AARP v. Trump) again claims there are “substantial reasons to doubt that class relief may be obtained in a habeas proceeding.”  He cites to Justice Alito’s broad statement noted above and to a single case – Garland v. Aleman Gonzalez – which he must know has no applicability to these deportation cases insofar as it was an immigration law case governed by the jurisdiction stripping provisions of the INA. 

The issue is now back before the Federal District Court for the Northern District of Texas.  The majority in Tuesday’s opinion remanded the case there requiring the district court to rule on the certification issue.  Given that this same district court has previously denied class certification, I would anticipate that it would do so again – either based on a merits evaluation of the class or, more dramatically, by denying the right for class certification for any habeas case. For those interested in the nuances of this issue I would highly recommend a forthcoming article by Lee Kovarsky and D. Theodore Rave entitled Habeas Class Actions (139 HARV. L. REV. ____ (forthcoming 2026).

The last issue that could be on the table, however, is far more significant – and concerning.  Last Friday, White House advisor Steven Miller again stated in a press conference that “we are actively” looking at suspending habeas corpus as a tool to assist in deportations.  This would be a useful tool for the administration insofar as the Supreme Court has held that the only way to challenge a deportation is via a habeas corpus petition.  Suspending the right to habeas corpus would remove any means of challenging such action.  The Constitution is rather clear with respect to suspension of habeas corpus – the writ shall not be suspended except in cases of “rebellion or invasion.”  Miller claims that we are experiencing an invasion.  That is questionable – in fact, even the majority in Tuesday’s Fifth Circuit opinion in WMM have concluded that (in the context of the Alien Enemies Act) – that no “invasion” has taken place.  However, it is also important to question whether the Executive branch has the authority to suspend habeas corpus.  The Suspension Clause is found in Article I of the Constitution – that section dealing with the Legislative branch of government.  Starting with Chief Justice Tanney’s 1861 decision in Ex Parte: Merryman and continuing to the Hamdan v. Rumsfeld decision in 2006, the Court has always viewed suspension as a privilege of Congress, not the Executive.  When Miller says “we” it is important to know if he means the Executive branch, or some other entity.