The motions docket of the U.S. Supreme Court remains busy.

Following the April 4 decision in Department of Education v. California—in which the Court, treating a temporary restraining order (TRO) as if it were a preliminary injunction, stayed an order that would have blocked the government from ending over 100 education-related grants and allowed the case to proceed in the U.S. Court of Appeals for the First Circuit without requiring the government to meet payment obligations—a similar result was reached today in the Court’s 7–2 order in the case of OPM v. AFGE.

In AFGE, the Court was again confronted with an application for a stay, this time with respect to an appeal to the Ninth Circuit from an injunction issued by the United States District Court for the Northern District of California that would have required the reinstatement of approximately 16,000 fired federal workers who had probationary status at the departments of Agriculture, Defense, Energy, Interior, Treasury and Veterans Affairs. The case had been brought by the American Federation of Government Employees, the AFL-CIO, and several other nonprofit organizations that argued that the terminations were based on the pretense that the employees’ performance was “deficient.” Over the dissents of Justices Sotomayor and Jackson, the Court held that the nine plaintiffs had failed to demonstrate organizational standing.

The Court’s order denying a stay does not address the claims of other plaintiffs who were not affected by the district court’s preliminary injunction. Given that there are other potential plaintiffs, as well as agencies that were not named in the instant AFGE suit, questions concerning the current administration’s mass firings of federal workers, probationary and otherwise, are still viable in other actions brought by, or on behalf of, individuals who are more likely to have sufficient standing to litigate against the government. For now, however, the administration is three for three in cases coming from the “shadow” docket (i.e., cases that have not been fully briefed and argued) that have been decided in the last two days.

Department of Education v. California is one of the three, and OPM v. AFGE is another. The third, decided late yesterday, is Trump v. J.G.G. This case concerns the detention and removal from the United States of Venezuelans believed to be members of Tren de Aragua, a gang that has been designated by the U.S. State Department as a foreign terrorist organization. The basis for these arrests and expulsions is yet another presidential proclamation, this one pursuant to the Alien Enemies Act (AEA), 50 U. S. C. §21.

In a widely publicized suit brought by five detainees and a putative class, Judge James Boasberg of the D.C. District Court issued two TROs intended to prevent the removal of the named plaintiffs and putative class members pending the resolution of their general and personal claims. As has been widely reported, many of these persons were shipped out of the country, arguably before Judge Boasberg had rendered a formal, written opinion, and their potential return from El Salvador and elsewhere is a hot political issue. Others are in Texas, and their cases will be able to proceed. It is important to note that these plaintiffs had dismissed that portion of their complaint that invoked habeas corpus.

Given that, by its literal wording, the AEA applies to individuals who are citizens of enemy nations, and then only in times of declared war, actual or attempted invasions, and “predatory incursions,” and that none of these conditions would appear to be present, I had thought that the government’s defense would have been rejected out of hand. However, any such determination will have to await future litigation. You might remember learning in high school of the Alien and Sedition Acts that, in the post-Revolutionary era, were designed by Congress to deport citizens of a “hostile government” who were at least 14 years old. Indeed, the AEA was enacted 227 years ago, in 1798, and, until now, has been employed only three times: The War of 1812, World War I, and World War II. Thus, the current state of affairs, initiated by an unprecedented presidential proclamation that foreign gangsters have infiltrated our country and activated the AEA, would appear to be an anomaly.

However, the lawfulness of the detentions and removals will not be determined at present. Instead, in yet another case where the Supreme Court treats a TRO as a preliminary injunction, seven Justices have held that, although judicial review under the AEA is limited, an “individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act as well as whether he or she ‘is in fact an alien enemy fourteen years of age or older.” Indeed, the government now concedes the point. Thus, the Supreme Court ruled that the detainees are entitled to notice and a hearing that would enable them to challenge their removal.

Notwithstanding their dismissal of the claim that invoked habeas corpus, the Court held that this, not the Administrative Procedure Act, would be the proper basis for a cause of action and that the venue to hear it would be in the district of confinement, i.e., in Texas, not Washington, DC. The question remains as to how many detainees are still in the United States and thus able to take advantage of the relief afforded by the Court, which did not consider the fact that the administration is arguing elsewhere that it cannot be ordered to seek the return of persons expelled to another country. However, as Justice Kavanaugh notes in concurring, the issue is not whether the detainees will obtain a review of their claims—on which all nine Justices agree—but only where. Of course, one should not overlook the dissent written by Justice Sotomayor, joined by Justices Kagan and Jackson, and the (to many) surprising joinder in large part of Justice Barrett critical of the application of a statute intended for use in wartime and under circumstances here that the dissenters believe were created by the duplicity of the government.

In the final analysis, though the government will claim, not without cause, that it has achieved considerable victories and enhancements of executive authority in these three cases, such victories may very well prove transitory in the litigation maelstrom that the current administration has unleashed. An admirer of Homer’s Odyssey will recall how Odysseus’s men, driven by greed, opened the bag of winds that the god Aeolus had provided, thinking it contained treasure. It has yet to be determined how the administration will ultimately be “rewarded.”