The Justice Department argued before an appeals court panel on Tuesday that the Trump administration should be allowed to continue with a Biden-era mass parole program for hundreds of thousands of migrants, leaning on a Supreme Court order issued in May as part of the argument.

The three-judge panel on the United States Court of Appeals for the First Circuit heard arguments in the DOJ’s appeal of a lower court’s order, which had blocked the Trump administration’s revocation of work permits and legal status for over 530,000 migrants flown into the United States under a Biden administration program.

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The Supreme Court stayed the district court’s injunction in May while litigation continued in the lower courts, with the 6-3 majority not elaborating on its decision to issue the pause. The high court’s stay of the order remains in effect until the end of the appellate process, either in the appeals court or if the case is presented to the justices at the Supreme Court.

Deputy Assistant Attorney General Drew Ensign argued the appeals court should take the Supreme Court’s lead and reverse the lower court, pointing to the unsigned May 30 order from the high court.

“As the Supreme Court has already implicitly recognized by a lopsided vote, the government is likely to prevail on appeal, either in this court or, if necessary, in the Supreme Court. This court should reject plaintiffs’ brazen requests to defy the Supreme Court by following their exhortation ‘not to assign meaning’ to its stay decision,” Ensign said at the oral arguments Tuesday in Boston. “Instead, this court should follow the Supreme Court’s lead in reverse.”

When questioned about the fact that the Supreme Court’s order did not rule on the merits, Ensign argued that the high court’s order indicated that a majority of the justices believe the government is likely to prevail on appeal. However, he acknowledged it was not a “conclusive” opinion. He then explained the DOJ’s view that Homeland Security Secretary Kristi Noem’s decision to end mass parole for migrants was lawful and, as outlined by Congress, not subject to review by the court.

The appeals court panel included two former President Joe Biden appointees, Judges Gustavo Gelpi and Lara Montecalvo, and one former President Barack Obama appointee, Judge William Kayatta. All three justices grilled the DOJ lawyer on the courts’ ability to review the decision by the Trump administration to end mass parole.

Justin Cox, a lawyer for the coalition of groups suing the Trump administration over the decision to end the parole program, was also grilled by the judges, specifically over the contention that Noem did not address the two grounds for which the parole program was established when she ordered the program to be terminated. Cox argued that Noem did not outline why the humanitarian conditions had changed to allow for the mass parole to be terminated. Cox claimed the humanitarian situation was one of two independent reasons for establishing the program under the Biden administration.

Cox argued that the appeals court should not defer to the Supreme Court’s order because the justices did not offer any reasoning, and that the appeals court would have to speculate about why the justices reached their conclusion for the order to hold weight.

At the end of the 90-minute hearing, the appeals court panel did not provide a timeline for ruling on the case.

SUPREME COURT’S EMERGENCY DOCKET ORDERS FRUSTRATE LIBERAL JUSTICES

With the litany of cases challenging Trump administration policy actions in federal courts, the Supreme Court’s emergency docket has filled up with appeals from the DOJ seeking pauses to lower court orders.

The Supreme Court has issued a number of stays that benefit the Justice Department, but last week it had to issue another stay pointing to a previous one the justices had granted in a similar case. The unsigned majority said that emergency orders from the high court should “inform how a court should exercise its equitable discretion in like cases,” while acknowledging that the orders are not conclusive opinions.