5th Circuit Responds to SCOTUS in TdA Case and Hoo | Political News

I’ve learn most likely hundreds of court opinions in my time on this planet — some dry, some hyper-technical, some befuddling, and yes, some entertaining. But I’m not sure I’ve ever hooted out loud while studying one before. I did just now. And so, pricey readers, I could not wait to share it with you. 

Now, the context is critical in nature. This is the continuation of the elimination of Tren de Aragua (TdA) members pursuant to the Alien Enemies Act (AEA) saga. When final we left you, the Supreme Court had supplied up one other head-scratcher via its opinion, handed down on Friday, in the A.A.R.P. v. Trump case. As defined in my reporting on that case on Friday:

In an eight-page per curiam order issued Friday afternoon, the high court vacated the 5th Circuit’s choice (dismissing the appeal of petitioner-detainees) and despatched the case back to the 5th Circuit for additional review of their appeal. 

In doing so, the court reiterated that detainees subject to elimination under the Alien Enemies Act (AEA) are entitled to correct discover and, without specifying what that discover needs to be, affirmed that “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.”

READ MORE: Breaking: Supreme Court Again Blocks Trump Admin From Deporting TdA Members Without ‘Proper’ Notice

Justice Alito wrote the dissent in that one, and I believe he has the much better argument. It’s protected to say that at least one 5th Circuit choose — James Ho — shares that view. 

As famous, the Supreme Court informed the 5th Circuit it bought it mistaken in dismissing the petitioner-detainees’ appeal and despatched the case back to them to kind through the due course of argument and decide precisely what discover north of 24 hours these detainees are entitled to before being eliminated from the nation under the AEA. 

The 5th Circuit, seemingly a bit bowled over by SCOTUS’ willpower, famous that it had informed them to get to work and make it snappy. (Okay, the Supremes directed the 5th to proceed “expeditiously.”) Therefore, the Circuit, in a per curiam order, expedited the matter “to the next available randomly designated regular oral argument panel.”

But Judge Ho felt compelled to creator a concurring opinion sharing his ideas on how the Supreme Court has dealt with the state of affairs (and, in his view, disparaged District Court Judge James Hendrix and the chief department in the method). I’m going to share some of the tastier nuggets right here, but before I do, I am unable to stress enough how price it those who discover this subject remotely attention-grabbing will discover it to learn the complete opinion for themselves. It’s only seven pages — deal with your self. 

And talking of tasty nuggets, discussing the Supreme Court’s Friday ruling with a good friend and former colleague, I casually noticed, “I hope the 5th gives them something really tasty to chew on.” They’ve obliged right here. 

Me to a good friend/former co-worker re: SCOTUS choice final Friday: “I hope the 5th gives them something really tasty to chew on.”

5th Circuit: Here ya go!

“We seem to have forgotten that this is a district court—not a Denny’s.”https://t.co/8qwi7P314f

— Susie Moore ⚾️🌻🐶 (@SmoosieQ) May 21, 2025

First, Ho units issues up, explaining his reasoning for writing the concurring opinion:

As an inferior court, we’re duty-bound to observe Supreme Court rulings—whether or not we agree with them or not. We don’t have to prefer it. But we have now to do it. So I concur in our order as we speak expediting our consideration of this matter, as directed by the Supreme Court.

But I write to state my honest issues about how the district choose as nicely as the President and different officers have been handled in this case. I fear that the disrespect they’ve been proven is not going to encourage continued respect for the judiciary, without which we can’t long operate. See, e.g., In re Westcott, 135 F.4th 243, 250–51 (5th Cir. 2025) (Ho, J., concurring).

Ho lays out the procedural timetable:

So when they sought emergency aid at 12:34 a.m. on April 18, Petitioners “were fully aware that the District Court intended to give the Government 24 hours to file a response.” A.A.R.P., 605 U.S. at _ (Alito, J., dissenting). They “said nothing about a plan to appeal if the District Court elected to wait for that response.” Id.

At 12:48 p.m. on April 18, however, Petitioners “suddenly informed the court that they would file an appeal if the District Court did not act within 42 minutes, i.e., by 1:30 p.m.” Id. 

To emphasize the issue with such a tight turnaround time, Ho factors to the Supreme Court’s own rationale in a latest case, highlighting the distinction between residents asserting non secular liberty and alien gang members to drive home the purpose: 

Notably, the Justices themselves have expressed issues about making selections under far more forgiving time constraints than those demanded right here. Recall the emergency aid sought in Does 1-3 v. Mills, 142 S. Ct. 17 (2021). Members of the Court expressed concern about the “use [of] the emergency docket to force the Court” to “grant . . . extraordinary relief” “on a short fuse without benefit of full briefing.” Id. at 18 (Barrett, J., concurring in the denial of utility for injunctive aid).

The quantity of time thought of too short in Does 1-3 was 9 days. Compared to 42 minutes, however, 9 days is a lifetime to determine a movement.

So the district court fairly assumed that the precept invoked in Does 1-3 to justify denying aid to law-abiding residents involved about their non secular liberties in the COVID-19 period would likewise justify denying aid to unlawful alien members of a international terrorist group.

Then Ho will get to the meat of it all — the disparity between the 42 minutes famous by Judge Hendrix and the 5th Circuit, and the 14 hours and 28 minutes the Supreme Court all of the sudden decided Judge Hendrix had to act (emphasis mine):

This charge is price exploring. To get to 14 hours and 28 minutes (reasonably than 42 minutes), the Court was clearly beginning the clock at 12:34 a.m., reasonably than 12:48 p.m. (when Petitioners informed the district court for the first time that they needed a ruling before the Government might reply).

But beginning the clock at 12:34 a.m. not only ignores the court’s categorical instructions respecting the Government’s proper to reply. It also ignores the very fact that the Court is beginning the clock at—12:34 a.m.

We appear to have forgotten that this is a district court—not a Denny’s. This is the first time I’ve ever heard anybody counsel that district judges have a responsibility to verify their dockets at all hours of the night time, just in case a celebration decides to file a movement.

And then he provides the cherry on high: 

If this goes to develop into the norm, then we must always say so: District judges are hereby anticipated to be out there 24 hours a day—and the Judicial Conference of the United States and the Administrative Office of the U.S.Courts ought to secure from Congress the sources and staffing needed to guarantee 24-hour operations in every district court across the nation.

If this shouldn’t be to develop into the norm, then we must always admit that this is particular therapy being afforded to sure favored litigants like members of Tren de Aragua—and we must always stop pretending that Lady Justice is blindfolded.

I’m going to stop before I just wind up sharing the entire opinion. It’s not yet clear when “the next available randomly designated regular oral argument panel” before the 5th Circuit shall be, though I anticipate we’ll discover out soon enough. 

One hopes that when the Circuit finishes addressing the issues the Supreme Court tasked it with, it’ll ship a totally scrumptious report and opinion for the High Court to gnaw on. 

Editor’s Note: Partisan federal judges are hijacking President Trump’s agenda and insulting the desire of the people

Help us expose out-of-control judges useless set on halting President Trump’s mandate for change. Join RedState VIP and use promo code FIGHT to get 60% off your membership.