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On Intentional Homelessness

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One of the few areas where I sharply dissent from the norms of contemporary left-liberalism is that of homelessness. To be blunt, homelessness is terrible. It’s a failure of society. It is not OK to be homeless. It is an absolute blight on cities. Where we as a society became so focused on individual rights so that you have people arguing that being homeless is totally cool if people want to be and also if they want to shoot up on the streets, that’s cool too, well, that’s for future historians to figure out. But it’s bad. I grew up around this, being from Eugene, which had giant transient populations before it was cool, and I don’t have much tolerance for the intentionally homeless.

Now, there’s a lot of caveats here. The vast majority of homeless folks are not to blame for their plight and they want stable homes. Housing prices are ridiculous. People absolutely should have a constitutional and legal right to shelter. Cities need to build and build and build. We need to invest in mental health care. We need to find ways to take care of folks who are off their meds and in need of help. We need to provide the counseling needed to work with people to get them off addictive drugs and when that is not possible, as of course it is with a lot of addicts, to find them acceptable and safe housing. In terms of strategies to solve homelessness, I am there for all of them.

But I am not there with homelessness being acceptable and I never will be. It’s just not. Moreover, it’s the biggest political loser issue imaginable. So the great thing about pro-homelessness (and really, GTFOH with the “unhoused” language) advocates is that they are both wrong on the merits and engaging in disastrous politics that drive lots of people to the right! Great job folks!

So when I read this story about San Jose, I can understand the sentiments, even if calling the cops is rarely a good answer for anyone.

In San Jose, Mayor Matt Mahan, a Democrat, recently called for arresting homeless people if they refused shelter three times.

It’s rare for leaders in the liberal Bay Area to adopt such an approach, which critics say criminalizes homelessness. But his idea has drawn widespread support. While there remains opposition, interviews with residents, elected officials and advocates show that rising frustration with homelessness is making Silicon Valley voters desperate for action and leading them to proposals that once would have seemed too right-leaning for these heavily blue cities.

“We can have progressive goals, but we have to have pragmatic ways of achieving them,” Mr. Mahan said in an interview.

San Jose is the largest city in Northern California, with nearly one million residents, but it has long been overshadowed culturally and politically by San Francisco. Most of its population lives in suburban neighborhoods that are only slightly more affordable than the wealthy Silicon Valley enclaves north of the city.

Approximately 6,000 people in San Jose live in shelters, on the streets, along riverbanks and in vehicles. Homelessness is the top concern among San Jose residents by a two-to-one margin, according to city surveys.

Mr. Mahan, a 42-year-old moderate Democrat and tech entrepreneur who has been mayor since 2023, tapped into that anger and decried a crisis of homelessness, crime and dirty streets in San Jose the first time he campaigned for the city’s top job. He vowed to bring a “revolution of common sense.”

The goal of his new plan, he said, is to invest heavily in building more shelters in San Jose and to move homeless people who refuse housing into mental health treatment to help them onto a better path. But it is possible that those living on the streets could serve jail time.

“Homelessness can’t be a choice,” Mr. Mahan said. “Government has a responsibility to build shelter, and our homeless neighbors have a responsibility to use it.”

His proposal has drawn ire from advocates for homeless people, who have said that it ignores the root cause of homelessness: the high cost of living in San Jose and other California cities. But the San Jose City Council has given its initial approval, and a final vote is scheduled for June.

….

Raoul Mahone, 60, sat on a wooden pallet in front of the green tent where he sleeps each night. He nodded to the pinkish-purple blooms of the redbud tree under which he sought shade and the river behind him. Nothing, he said, could persuade him to go indoors.

“They take away paradise and put you in a shelter,” Mr. Mahone said. “They want to lock up the homeless people.”

So, I am most certainly concerned with what happens in shelters, which can be extremely traumatic to people and may well be worse than being out of the street. That’s not OK either. But the proposed program in San Jose seems…not too bad? And getting buy-in from people to have shelters in their neighborhood, that’s really important and good and yes, as a result, there are going to be demands on what happens. But you should not have the right to live on the streets. You should be able to sue the government if you can’t find a place to live. But if your paradise is disaster for others, well, something has to give.

As a reminder, left politics are not, or at the very least should not be, some form of extreme social libertarianism where everyone can do whatever they want to. We have so lost our sense collectivism in this country and the kinds of extreme individualism that the left gets hung up on these days really reflect that. Individual rights are important, but collective life is more important. Individual rights are great when they don’t have a negative impact on others. Have consensual sex with whoever you want! But seeing people losing their minds because they are off their meds on the streets of Portland, dudes taking a shit on the sidewalk, this kind of thing–all of which I have personally seen in the last couple of years while visiting my home state–this is outright bad for people, especially kids who should not be seeing this kind of trauma in person if we can help it.

Either way, if the left wants to be sure that they never win on policy ever again and no one ever trusts you with elected office, keep going down this road of it being completely fine if you choose to be “unhoused.” Homelessness is a social problem. It needs to be treated as a problem. And problems need to be solved. There will inevitably have to be some coercion in that, just like there is coercion in all parts of our society.

The post On Intentional Homelessness appeared first on Lawyers, Guns & Money.

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Trump administration has lost Venezuelan migrant they deported

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The U-bend of life

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This article is part of our Summer reads series. Visit the full collection for book lists, guest essays and more seasonal distractions. ASK people how they feel about getting older, and they will probably reply in the same vein as Maurice Chevalier: “Old age isn't so bad when you consider the alternative.” Stiffening joints, weakening muscles, fading eyesight and the clouding of memory, coupled with the modern world's careless contempt for the old, seem a fearful prospect—better than death, perhaps, but not much. Yet mankind is wrong to dread ageing. Life is not a long slow decline from sunlit uplands towards the valley of death. It is, rather, a U-bend.

When people start out on adult life, they are, on average, pretty cheerful. Things go downhill from youth to middle age until they reach a nadir commonly known as the mid-life crisis. So far, so familiar. The surprising part happens after that. Although as people move towards old age they lose things they treasure—vitality, mental sharpness and looks—they also gain what people spend their lives pursuing: happiness.

This curious finding has emerged from a new branch of economics that seeks a more satisfactory measure than money of human well-being. Conventional economics uses money as a proxy for utility—the dismal way in which the discipline talks about happiness. But some economists, unconvinced that there is a direct relationship between money and well-being, have decided to go to the nub of the matter and measure happiness itself.

These ideas have penetrated the policy arena, starting in Bhutan, where the concept of Gross National Happiness shapes the planning process. All new policies have to have a GNH assessment, similar to the environmental-impact assessment common in other countries. In 2008 France's president, Nicolas Sarkozy, asked two Nobel-prize-winning economists, Amartya Sen and Joseph Stiglitz, to come up with a broader measure of national contentedness than GDP. Then last month, in a touchy-feely gesture not typical of Britain, David Cameron announced that the British government would start collecting figures on well-being.

There are already a lot of data on the subject collected by, for instance, America's General Social Survey, Eurobarometer and Gallup. Surveys ask two main sorts of question. One concerns people's assessment of their lives, and the other how they feel at any particular time. The first goes along the lines of: thinking about your life as a whole, how do you feel? The second is something like: yesterday, did you feel happy/contented/angry/anxious? The first sort of question is said to measure global well-being, and the second hedonic or emotional well-being. They do not always elicit the same response: having children, for instance, tends to make people feel better about their life as a whole, but also increases the chance that they felt angry or anxious yesterday.

Statisticians trawl through the vast quantities of data these surveys produce rather as miners panning for gold. They are trying to find the answer to the perennial question: what makes people happy?

Four main factors, it seems: gender, personality, external circumstances and age. Women, by and large, are slightly happier than men. But they are also more susceptible to depression: a fifth to a quarter of women experience depression at some point in their lives, compared with around a tenth of men. Which suggests either that women are more likely to experience more extreme emotions, or that a few women are more miserable than men, while most are more cheerful.

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Two personality traits shine through the complexity of economists' regression analyses: neuroticism and extroversion. Neurotic people—those who are prone to guilt, anger and anxiety—tend to be unhappy. This is more than a tautological observation about people's mood when asked about their feelings by pollsters or economists. Studies following people over many years have shown that neuroticism is a stable personality trait and a good predictor of levels of happiness. Neurotic people are not just prone to negative feelings: they also tend to have low emotional intelligence, which makes them bad at forming or managing relationships, and that in turn makes them unhappy.

Whereas neuroticism tends to make for gloomy types, extroversion does the opposite. Those who like working in teams and who relish parties tend to be happier than those who shut their office doors in the daytime and hole up at home in the evenings. This personality trait may help explain some cross-cultural differences: a study comparing similar groups of British, Chinese and Japanese people found that the British were, on average, both more extrovert and happier than the Chinese and Japanese.

Then there is the role of circumstance. All sorts of things in people's lives, such as relationships, education, income and health, shape the way they feel. Being married gives people a considerable uplift, but not as big as the gloom that springs from being unemployed. In America, being black used to be associated with lower levels of happiness—though the most recent figures suggest that being black or Hispanic is nowadays associated with greater happiness. People with children in the house are less happy than those without. More educated people are happier, but that effect disappears once income is controlled for. Education, in other words, seems to make people happy because it makes them richer. And richer people are happier than poor ones—though just how much is a source of argument (see article).

The view from winter

Lastly, there is age. Ask a bunch of 30-year-olds and another of 70-year-olds (as Peter Ubel, of the Sanford School of Public Policy at Duke University, did with two colleagues, Heather Lacey and Dylan Smith, in 2006) which group they think is likely to be happier, and both lots point to the 30-year-olds. Ask them to rate their own well-being, and the 70-year-olds are the happier bunch. The academics quoted lyrics written by Pete Townshend of The Who when he was 20: “Things they do look awful cold / Hope I die before I get old”. They pointed out that Mr Townshend, having passed his 60th birthday, was writing a blog that glowed with good humour.

Mr Townshend may have thought of himself as a youthful radical, but this view is ancient and conventional. The “seven ages of man”—the dominant image of the life-course in the 16th and 17th centuries—was almost invariably conceived as a rise in stature and contentedness to middle age, followed by a sharp decline towards the grave. Inverting the rise and fall is a recent idea. “A few of us noticed the U-bend in the early 1990s,” says Andrew Oswald, professor of economics at Warwick Business School. “We ran a conference about it, but nobody came.”

Since then, interest in the U-bend has been growing. Its effect on happiness is significant—about half as much, from the nadir of middle age to the elderly peak, as that of unemployment. It appears all over the world. David Blanchflower, professor of economics at Dartmouth College, and Mr Oswald looked at the figures for 72 countries. The nadir varies among countries—Ukrainians, at the top of the range, are at their most miserable at 62, and Swiss, at the bottom, at 35—but in the great majority of countries people are at their unhappiest in their 40s and early 50s. The global average is 46.

The U-bend shows up in studies not just of global well-being but also of hedonic or emotional well-being. One paper, published this year by Arthur Stone, Joseph Schwartz and Joan Broderick of Stony Brook University, and Angus Deaton of Princeton, breaks well-being down into positive and negative feelings and looks at how the experience of those emotions varies through life. Enjoyment and happiness dip in middle age, then pick up; stress rises during the early 20s, then falls sharply; worry peaks in middle age, and falls sharply thereafter; anger declines throughout life; sadness rises slightly in middle age, and falls thereafter.

Turn the question upside down, and the pattern still appears. When the British Labour Force Survey asks people whether they are depressed, the U-bend becomes an arc, peaking at 46.

Happier, no matter what

There is always a possibility that variations are the result not of changes during the life-course, but of differences between cohorts. A 70-year-old European may feel different to a 30-year-old not because he is older, but because he grew up during the second world war and was thus formed by different experiences. But the accumulation of data undermines the idea of a cohort effect. Americans and Zimbabweans have not been formed by similar experiences, yet the U-bend appears in both their countries. And if a cohort effect were responsible, the U-bend would not show up consistently in 40 years' worth of data.

Another possible explanation is that unhappy people die early. It is hard to establish whether that is true or not; but, given that death in middle age is fairly rare, it would explain only a little of the phenomenon. Perhaps the U-bend is merely an expression of the effect of external circumstances. After all, common factors affect people at different stages of the life-cycle. People in their 40s, for instance, often have teenage children. Could the misery of the middle-aged be the consequence of sharing space with angry adolescents? And older people tend to be richer. Could their relative contentment be the result of their piles of cash?

The answer, it turns out, is no: control for cash, employment status and children, and the U-bend is still there. So the growing happiness that follows middle-aged misery must be the result not of external circumstances but of internal changes.

People, studies show, behave differently at different ages. Older people have fewer rows and come up with better solutions to conflict. They are better at controlling their emotions, better at accepting misfortune and less prone to anger. In one study, for instance, subjects were asked to listen to recordings of people supposedly saying disparaging things about them. Older and younger people were similarly saddened, but older people less angry and less inclined to pass judgment, taking the view, as one put it, that “you can't please all the people all the time.”

There are various theories as to why this might be so. Laura Carstensen, professor of psychology at Stanford University, talks of “the uniquely human ability to recognise our own mortality and monitor our own time horizons”. Because the old know they are closer to death, she argues, they grow better at living for the present. They come to focus on things that matter now—such as feelings—and less on long-term goals. “When young people look at older people, they think how terrifying it must be to be nearing the end of your life. But older people know what matters most.” For instance, she says, “young people will go to cocktail parties because they might meet somebody who will be useful to them in the future, even though nobody I know actually likes going to cocktail parties.”

Death of ambition, birth of acceptance

There are other possible explanations. Maybe the sight of contemporaries keeling over infuses survivors with a determination to make the most of their remaining years. Maybe people come to accept their strengths and weaknesses, give up hoping to become chief executive or have a picture shown in the Royal Academy, and learn to be satisfied as assistant branch manager, with their watercolour on display at the church fete. “Being an old maid”, says one of the characters in a story by Edna Ferber, an (unmarried) American novelist, was “like death by drowning—a really delightful sensation when you ceased struggling.” Perhaps acceptance of ageing itself is a source of relief. “How pleasant is the day”, observed William James, an American philosopher, “when we give up striving to be young—or slender.”

Whatever the causes of the U-bend, it has consequences beyond the emotional. Happiness doesn't just make people happy—it also makes them healthier. John Weinman, professor of psychiatry at King's College London, monitored the stress levels of a group of volunteers and then inflicted small wounds on them. The wounds of the least stressed healed twice as fast as those of the most stressed. At Carnegie Mellon University in Pittsburgh, Sheldon Cohen infected people with cold and flu viruses. He found that happier types were less likely to catch the virus, and showed fewer symptoms of illness when they did. So although old people tend to be less healthy than younger ones, their cheerfulness may help counteract their crumbliness.

Happier people are more productive, too. Mr Oswald and two colleagues, Eugenio Proto and Daniel Sgroi, cheered up a bunch of volunteers by showing them a funny film, then set them mental tests and compared their performance to groups that had seen a neutral film, or no film at all. The ones who had seen the funny film performed 12% better. This leads to two conclusions. First, if you are going to volunteer for a study, choose the economists' experiment rather than the psychologists' or psychiatrists'. Second, the cheerfulness of the old should help counteract their loss of productivity through declining cognitive skills—a point worth remembering as the world works out how to deal with an ageing workforce.

The ageing of the rich world is normally seen as a burden on the economy and a problem to be solved. The U-bend argues for a more positive view of the matter. The greyer the world gets, the brighter it becomes—a prospect which should be especially encouraging to Economist readers (average age 47).

This article appeared in the Christmas Specials section of the print edition under the headline “The U-bend of life”

From the December 18th 2010 edition

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It’s the Jobs, Stupid - Border Encounters Edition - TPM – Talking Points Memo

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Send comments and tips to talk at talkingpointsmemo dot com. To share confidential information by secure channels contact me on Signal at joshtpm dot 99 or via encrypted mail at joshtpm (at) protonmail dot com.

I wanted to share something with you. I was talking with TPM Reader LG (who in this case I will identify as Leo Gugerty, a Professor at Clemson University) about the DOJ-in-Exile project and the conversation moved to something very different: the pace of border crossings at the southern US border over the last 15 years. With his permission I’m sharing with you here the graph he shared with me.

The rates of undocumented immigration are obviously highly politicized in this country. On the right there are a stunning level of conspiracy theories about it. You can routinely hear very ‘mainstream’ Republicans talk about how Biden ‘brought in’ 20 million immigrants for various evil reasons – both absurd as to causes and like an order of magnitude more immigrants than actually came into the country. I have always assumed the high rates are a mix of growing human mobility and a mix of political and economic instability that are significantly driven by climate change. (There’s actually some good scholarship pointing to climate driven economic dislocations playing a non-trivial role in the origins of the Syrian Civil War, which spurred radicalization and sectarian far-right parties in Europe.)

But as you can see this chart suggests a pretty strong correlation between employment demand/shortages and immigration. For these purposes, I don’t think we even need to get that focused on legal vs illegal. That’s more a second order factor we impose on a fairly straightforward supply and demand dynamic. When Gugerty showed me this I looked at it and felt stupid that something so obvious hadn’t even really occurred to me.

Now, let me say that I don’t imagine that people who study these things haven’t thought of this. And I certainly have too – but in a general sense. I had not focused on the fact that these recent surges line up pretty well with periods of particularly acute labor demand/shortages in the US. It really makes perfect sense.

Also, I don’t imagine that one graph settles this analytic or political question. I don’t think Gugerty does either. As he explained to me, this isn’t his specific field, though he works with statistical information. It was something he put together when he was trying to make sense of why these surges were happening. (I should add here that I have not independently verified the data. But given Gugerty’s background and the way I’m sharing this I don’t think that’s necessary.)

No big phenomenon has a single cause and we could quibble with the precise statistics he uses as proxies for the rate of in-migration and labor demand. But the correlation is strong enough that I think it has to be a major part of any explanation and it certainly is now in my mind.

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Report: Trump Reportedly To Do Away With IRS Direct File Program For No Discernible Reason

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from the not-in-to-it dept

For three years now, a select group of states have had a pilot program through the IRS for its Direct File program. For years and years, companies like Intuit had gotten away with all kinds of shady tactics designed to lure people in with the promise of free tax prep filing using online software, only to have aggressive or deceptive methods for turning them into paying customers when they never should have been. Intuit’s tactics were so bad that the FTC ruled the company can’t advertise its services the way it had been previously along with nine-figure paybacks to the customers it had deceived.

Direct File and these shady doings by the tax-prep industry are directly related. The IRS already has all the information needed to prepare returns for a huge percentage of Americans that file simple tax returns and are typically in lower income brackets. Nobody has heard of any significant negative reaction to the Direct File pilot program, which expanded this year to more states, other than by the tax preparation industry themselves. If there was a problem with the program, we would have heard about it by now. By all accounts, it has been entirely successful.

So, of course, the Trump administration is reportedly planning to do away with it.

“The program had been in limbo since the start of the Trump administration as Elon Musk and the Department of Government Efficiency have slashed their way through the federal government,” the AP article said. “Musk posted in February on his social media site, X, that he had ‘deleted’ 18F, a government agency that worked on technology projects such as Direct File.”

The AP wrote that “two people familiar with the decision to end Direct File said its future became clear when the IRS staff assigned to the program were told in mid-March to stop working on its development for the 2026 tax filing season.” The IRS will lose about a third of its staff this year through layoffs and employees accepting resignation offers, The New York Times reported yesterday.

The House GOP, which pushed for this move, couched its request as combatting a conflict of interest at the IRS. Keep in mind as you read this that the IRS already has the information that is populating its Direct File returns.

As you know, during the last tax year, the IRS rolled out its Direct File pilot program in 12 states, through which taxpayers file their taxes directly to the IRS instead of through a trusted accountant or reputable third-party preparation service. Under the guise of offering a convenient “free-to-file” alternative preparation service, the IRS asserts itself as the tax assessor, collector, preparer, and enforcer—all in one—when the program is used.

This is deeply concerning and a clear conflict of interest. The IRS has little incentive to ensure hardworking Americans do not pay more than they owe in taxes and may instead benefit from families and small businesses paying greater amounts than they are required by law. Furthermore, it is highly inappropriate for the IRS to serve as a tax preparer for taxpayers while also being the final enforcer of tax violations.

The letter goes on to complain that the Direct File program amounts to costing taxpayers roughly $800 per return based on the program’s budget. You should be able to see immediately how deeply silly this all is, but here are a couple of highlights.

Again, the government already has the information used in the Direct File returns. That’s how they’re created in the first place. The taxpayer then goes in and validates the information the IRS has, gets some input on the return itself, denotes either payment or refund information, and then they’re done. The IRS is already the enforcer of tax payments and would use the same information it has in any audit it was going to conduct. The letter from the GOP worries out loud about the IRS ramping up tax audits on individuals, which is very strange since the use of Direct File would eliminate any audits for those using it, since it’s all based on information the government already has. Whatever conflict of interest the GOP claims to have identified is entirely undiscoverable by this writer.

The letter goes on to complain about the national debt, which is very odd to include in the same letter that complains about there being too much enforcement around tax collection audits. In its complaint about the cost-per-return, it also entirely ignores the economy of scale the program would benefit from as it is rolled out to even more taxpayers. Were it to do so, the cost per return would almost certainly drop, and drop significantly, as much of what powers the service would already be in place as a sunk cost.

As for the trust the American people had in this program and the IRS after using it? Well, from the Treasury Departments own website

  • 90 percent of respondents ranked their overall experience as Excellent or Above Average.
  • 90 percent of survey respondents who used customer support rated that experience as Excellent or Above Average.
  • When asked what they particularly liked, respondents most commonly cited Direct File’s ease of use, trustworthiness, and that it was free.
  • 86 percent of respondents said that their experience with Direct File increased their trust in the IRS.

And so what Trump is reportedly planning to do is take an IRS program that people enjoyed using, and one which caused them to have more trust in the IRS and government, and one which is still in pilot and which would become more cost efficient with wider use… and eliminating it. Without, mind you, any stated good reason.

Somewhere, in some ivory tower, the Intuit board is certainly cheering.

Filed Under: direct file, free file, irs, taxes
Companies: intuit

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144. The Supreme Court's Late-Night Alien Enemy Act Intervention

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Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us. If you’re not already a subscriber, I hope you’ll consider becoming one (and, if you already are, upgrading upgrading to a paid subscription if your circumstances permit):

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Just before 1:00 a.m. (ET) last night/very early this morning, the Supreme Court handed down a truly remarkable order in the latest litigation challenging the Trump administration’s attempts to use the Alien Enemy Act (AEA) to summarily remove large numbers of non-citizens to third countries, including El Salvador:

I wanted to write a short1 post to try to put the order into at least a little bit of context—and to sketch out just how big a deal I think this (aggressive but tentative) intervention really is.

I. The J.G.G. Ruling

As folks may recall, just 12 days ago, the Court issued a short per curiam opinion in Trump v. J.G.G., in which it held two things: First, a 5-4 majority held that challenges to removal under the AEA must be brought through habeas petitions where detainees are being held, not through Administrative Procedure Act claims in the D.C. district court (like J.G.G.). Second, the Court unanimously held that “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”

As I wrote at the time, although I disagreed with the majority’s “habeas-only” analysis, the broader ruling made would’ve made at least a modicum of sense if the Court was dealing with any other administration, but it raised at least the possibility that the Trump administration, specifically, would try to play games to make habeas review effectively inadequate. And all of those games would unfold while no court has ruled, one way or the other, on either the facial legal question (does the AEA apply at all to Tren de Aragua); or case-specific factual/legal questions about whether individual detainees really are “members” of TdA. Lo and behold, that’s what happened.

II. The J.A.V. Ruling

In the immediate aftermath of the Court’s April 7 ruling in J.G.G., litigants successfully obtained TROs against AEA removals in three different district courts—the Southern District of New York; the District of Colorado; and, as most relevant here, the Southern District of Texas. In the S.D. Tex. case (J.A.V. v. Trump), Judge Fernando Rodriguez (not that it should matter, but a Trump appointee) barred the government from removing the named plaintiffs or anyone else “that Respondents claim are subject to removal under the [AEA] Proclamation, from the El Valle Detention Center.” (The other rulings were also geographically specific.)

III. The A.A.R.P. Case

Then things got messy. According to media reports, starting on Thursday, a number of non-citizens being held at the Bluebonnet detention facility in Anson, Texas (in the Northern District of Texas) were given notices of their imminent removal under the AEA (in English only), with no guidance as to how they could challenge their removal in advance. Not only did this appear to be in direct contravention of the Supreme Court’s ruling in J.G.G., but it also raised the question of whether the government was moving detainees to Bluebonnet, specifically, to get around the district court orders barring removals of individuals being held at El Valle and other facilities.

The ACLU had already filed a habeas petition on Wednesday in the Northern District of Texas on behalf of two specific (anonymous) plaintiffs and a putative class of all Bluebonnet detainees—captioned A.A.R.P. v. Trump. Judge Hendrix had already denied the ACLU’s initial motion for a TRO—based on government representations that the named plaintiffs were not in imminent threat of removal (he reserved ruling on the request for class-wide relief).

Thus, once the news of the potentially imminent AEA removals started leaking out, the ACLU did two things at once: It sought renewed emergency relief from Judge Hendrix in the A.A.R.P. case, and it went back to Chief Judge Boasberg in the J.G.G. case—which has not yet been dismissed—since that case at least for the moment includes a nationwide class of individuals subject to possible removal under the AEA. And while it waited for both district judges to rule, the ACLU sought emergency relief in A.A.R.P. from both the Fifth Circuit and the Supreme Court.

Sometime after 7 p.m. ET on Friday, Chief Judge Boasberg declined to issue a TRO in J.G.G., concluding from the bench (in my view, correctly) that he couldn’t do so in light of the Supreme Court’s ruling in his case, specifically. Meanwhile, Judge Hendrix issued a brief opinion noting that, although he had been trying to move quickly on the ACLU’s renewed emergency motion, the fact that the ACLU had already gone up to the Fifth Circuit and the Supreme Court deprived him of jurisdiction to do anything further. (I’m not sure that’s true since those were requests for emergency relief, not plenary appeals, but c’est la vie.)

Thus, when many of us (myself included) went to bed last night, there was no specific order blocking removal of the Bluebonnet detainees, even though there were serious reasons to believe that the government was about to effectuate their removal without the notice and process the Supreme Court had required. Indeed, although Chief Judge Boasberg had denied emergency relief in J.G.G., the representations made by the Justice Department lawyer in the hearing Boasberg conducted were … squirrelly, at best.

Then, a little before 1:00 a.m., the Supreme Court stepped in. As noted above, the cryptic order specifies that “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.” And it notes that (1) the government can respond to the emergency application once the Fifth Circuit rules (which it did even later in the evening—denying emergency relief); and (2) Justices Thomas and Alito dissented, with an opinion from Alito apparently forthcoming.

IV. Taking Stock

Obviously, there’s still a lot we don’t know. But at least initially, this strikes me as a massively important—and revealing—intervention by the Supreme Court, for at least three reasons:

First, the full Court didn’t wait for the Fifth Circuit—or act through the individual Circuit Justice (Justice Alito).2 Even in other fast-moving emergency applications, the Court has often made a show out of at least appearing to wait for the lower courts to rule before intervening—even if that ruling might not have influenced the outcome. Here, though, the Court didn’t wait at all; indeed, the order specifically invites the government to respond once the Fifth Circuit weighed in—acknowledging that the Fifth Circuit hadn’t ruled (and, indeed, that the government hadn’t responded to the application in the Supreme Court) yet. This may seem like a technical point, but it underscores how seriously the Court, or at least a majority of it, took the urgency of the matter. (More on that in a moment.)

Second, the Court didn’t hide behind any procedural technicalities. One of the real themes of the Court’s interventions in Trump-related emergency applications to date has been using procedural technicalities to justify siding with the federal government—including in J.G.G. itself (the first AEA ruling). One could’ve imagined similar procedural objections to such a speedy intervention, on a class-wide basis, in last night’s ruling. (Indeed, I suspect some of those objections are forthcoming in Justice Alito’s impending dissenting opinion.) Here, though, the Court jumped right to the substantive relief the applicants sought—again, reinforcing not just the urgency of the issue, but its gravity.

Third, and perhaps most significantly, the Court seemed to not be content with relying upon representations by the government’s lawyers. In the hearing before Chief Judge Boasberg, Drew Ensign had specifically stated, on behalf of the government, that “no planes” would be leaving Friday, albeit with a bit less clarity about Saturday. True, the government hasn’t formally responded in the Supreme Court, but the justices (or at least their clerks) would have been well aware of the exchange—indeed, some of the clerks were likely listening to the hearing as it happened. In a world in which a majority of the justices were willing to take these kinds of representations at face value, there might’ve been no need to intervene overnight Friday evening; the justices could’ve taken at least some of Saturday to try to sort things out before handing down their decision.

But this case arose only because of the Trump administration’s attempt to play Calvinball with detainees it’s seeking to remove under the Alien Enemy Act. The Court appears to be finally getting the message—and, in turn, handing down rulings with none of the wiggle room we saw in the J.G.G. and Abrego Garcia decisions last week. That’s a massively significant development unto itself—especially if it turns out to be more than a one-off.

V. Now What?

This leads to two final points—one about what happens next, and one about what should happen next.

Starting with the former, last night’s ruling was decidedly temporary—and specifically contemplates further action from the full Court. Presumably, the government will file a response to the application at some point, and the ACLU will reply. On the merits, the ACLU certainly seems to have an awfully strong case—since all it is arguing for is a right for all members of the class to receive the very process that the Supreme Court already required in J.G.G. Perhaps this particular application culminates in a ruling from the justices that is even more specific about the process that J.G.G. requires (including whether the notice must be in Spanish; how long in advance it must be provided; whether it must provide recipients with details on how to challenge their removal; etc.). Again, that wouldn’t have been necessary during any other administration, but it’s increasingly urgent here.

But then there are the “merits” questions. We’re going through all of this rigmarole because no court has yet to rule on whether the government even has the power to use the Alien Enemy Act this way in the first place. As folks know, I think there are very strong arguments that it doesn’t—and a court so holding would provide a substantive impediment to any of the procedural games the government is trying to play. In that sense, it seems a little weird that we’re going through all of this effort to require process before the government can use a substantive authority it probably doesn’t have. Maybe the reason the justices are focusing on the procedures is because they’re not sure what they think of the merits. But the sooner the merits are resolved, it seems to me, the better.

***

There will surely be more to say about both last night’s ruling and the broader litigation context in which it arose, perhaps as early as Monday’s regular newsletter. For now, though, the A.A.R.P. intervention strikes me as a remarkably positive development from the Supreme Court—and a sign that a majority of the justices have lost their patience with the procedural games being played by the Trump administration, at least in the Alien Enemy Act context. Whether that mindset extends to other litigation contexts remains to be seen.

Have a great weekend, all—and, for those who celebrate, Happy Easter.

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1

In my defense, it started as a short post.

2

One fascinating question is whether Justice Alito, as Circuit Justice for the Fifth Circuit, had himself refused to issue some kind of administrative injunction—and his refusal impelled the full Court to act. We may never know, but it seems at least possible that part of what happened last night was a result of internal dynamics within the Court, as well.

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