President Donald Trump attends the 157th National Memorial Day Observance at Arlington National Cemetery, Monday, May 26, 2025, in Arlington, Virginia (AP Photo/Jacquelyn Martin).
The Trump administration on Wednesday asked one appellate court to pause an Alien Enemies Act (AEA) case because another appellate court is already dealing with a similar case.
In a 9-page motion in abeyance, the U.S. Department of Justice asked the U.S. Court of Appeals for the Third Circuit to pause ongoing proceedings in a habeas corpus case brought by a Venezuelan man accused of being part of the transnational Tren de Aragua (TdA) gang.
The unusual request is premised on the idea that “the same issue” is currently being litigated before the U.S. Court of Appeals for the Fifth Circuit in a high-profile habeas corpus case brought by two Venezuelan nationals who are presently being detained in Texas.
“In this case, the issue on appeal is the notice required under the Alien Enemies Act, an issue that is duplicative of the notice issue before the Court of Appeals for the Fifth Circuit in expedited proceedings in W.M.M. v. Trump,” the motion in abeyance argues. “To promote the efficient disposition of proceedings, this Court should exercise its inherent docket-management power to hold this appeal in abeyance pending the outcome of W.M.M.”
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The 5th Circuit case – which has been variously stylized as A.A.R.P. v. Trump and W.M.M. v. Trump due to class certification issues – has already, in limited form, been before the U.S. Supreme Court.
In a per curiam ruling issued in May, the justices rebuked the Trump administration for potentially subjecting the petitioners to “indefinite detention” in an El Salvadoran terrorist prison with only roughly one day of notice. The court further slammed the federal government for issuing such notice “devoid of information about how to exercise due process rights to contest that removal” and said that state of affairs “surely does not pass muster.”
Now, solidified as W.M.M. v. Trump, the government”s perspective has, so far, received a warm welcome before a three-judge panel of what is widely regarded as the nation’s most conservative appellate court.
Meanwhile, the case before the 3rd Circuit – stylized as A.S.R. v. Trump, though one day older than W.M.M.’s case – has not moved through the court system nearly as quickly or as much.
The A.S.R. case was actually stayed – paused through a process separate from abeyance – by the district court judge earlier this month. This pause came after the immigrant petitioner accepted a final order of deportation back to Venezuela.
A few days later, the Trump administration itself requested that the 3rd Circuit intervene in an interlocutory appeal explicitly fashioned to overturn a preliminary injunction issued by the judge on May 13.
In the A.S.R. injunction, U.S. District Judge Stephanie L. Haines, appointed by President Donald Trump during his first term, ordered that detainees be given at least 21 days to challenge their designation under the AEA, adding that such notifications must be provided in a language detainees can understand.
Haines’ ruling, however, also had good news for the government. The court, in the very same opinion, became the first judge in the country to find that Trump’s invocation of the AEA was lawful.
Back at the 5th Circuit, the panel is considering several questions, including the basic viability of the aforementioned invocation.
And, in another strange twist, while the 3rd Circuit case out of Pennsylvania – the one the government wants to pause – already addressed the merits of the obscure 18th-century wartime law, the Texas-based case appears likely to decide the merits for the first time when the 5th Circuit rules.
That’s because the see-sawing nature of the appeals process has more or less left U.S. District Judge James Hendrix, who was also appointed by Trump during his first term, in the lurch.
A few days after filing the original habeas lawsuit, by using the equivalent of an interlocutory appeal to the Supreme Court, the American Civil Liberties Union (ACLU) stopped the Trump administration from carrying out AEA deportations in the sprawling Northern District of Texas. In barring such actions, the justices issued their only Saturday order of the year — an exceedingly rare bit of weekend work.
That same issue was technically pending before the 5th Circuit when the ACLU filed with the justices. Meanwhile, the appellate court actually dismissed the appeal hours before the high court ruled by citing a lack of jurisdiction. But the plaintiffs were undeterred.
They revived the appeal by immediately filing a petition for a writ of certiorari. Then came the high court’s ruling on AEA notice, which included a remand back to the 5th Circuit to deal with the issue.
All this, the Trump administration now says, means the 5th Circuit should be the only appeals court to decide the notice issue. Again, days after asking the 3rd Circuit to reconsider the issue.
And, the DOJ says, since the conservative appeals court already fully briefed and argued the issue, allowing the 5th Circuit to maintain the case “would promote economy of time and effort.”
“It is fairly anticipated that the Fifth Circuit will issue a decision expeditiously and that either party will file a petition for writ of certiorari to the Supreme Court,” the motion in abeyance goes on. “Because the issue on appeal in this case is identical to one in W.M.M., which is undergoing expedited disposition, requiring briefing in the usual course in this case would lead to an unnecessary duplication of effort.”
To hear the government tell it, the eventual decision issued by the 5th Circuit will be appealed no matter what, so the 3rd Circuit should just let that collection of judges deal with those issues before it reaches the nation’s ultimate court of review.
This perspective is, if not entirely novel, at least atypical – even within the current iteration of the DOJ on immigration-related matters.
The request comes as a stark departure from the Trump administration’s own position in various litigation related to the 45th and 47th president’s efforts to rewrite birthright citizenship.
Earlier this year, while pushing the Supreme Court to limit nationwide injunctions, Solicitor General D. John Sauer said the government wanted “appropriate percolation” among various circuits.
The federal government is, as a matter of course and tradition, loath to have cases reach the Supreme Court absent a circuit split.
Here, the Trump administration is advocating a different kind of circuit split entirely: the 5th Circuit rules and all the other courts hit the road.
