Yesterday afternoon I provided a quick summary of the three opinions (two concurring, one dissenting) that accompanied the D.C. Circuit’s order that denied the Trump administration’s emergency motion for a stay of Judge Boasberg’s TROs in the Venezuela litigation. Now that I’ve had some time to review the opinions more carefully, I will offer a more focused review.

Let me emphasize that this is a complicated matter on which the three judges each issued long opinions just two days after oral argument. Given the press of time, it’s not surprising that the opinions don’t directly engage each other. I’m going to do my best to present a back-and-forth on what I regard as the key issue. In doing so, I might well fail to anticipate better responses that the judges themselves would present.

The key issue, as I see it, that divides the majority (Judge Karen Henderson and Judge Patricia Millett) from the dissent (Judge Justin Walker) is whether the plaintiffs have a claim under the Administrative Procedure Act. Judge Millett addresses this issue on pages 32 to 38 of her opinion, and Judge Walker does so on pages 8 to 15 of his opinion.

I will create here an exchange between Judge Millett (PM) and Judge Walker (JW). (I place in brackets my own guesses as to what they would say.)

JW: Plaintiffs’ only proper claim was a habeas petition, and such a petition had to be filed in the district in which they are detained—the Southern District of Texas. An APA claim is available only when there is no other adequate remedy in a court, so the availability of habeas relief in the Southern District of Texas forecloses their APA claim.
PM: Plaintiffs’ claims are routine APA claims, not habeas claims. Habeas is a means of challenging detention, not deportation. The Supreme Court’s rulings in DHS v. Thuraissigiam (2020) [opinion by Justice Alito] and Munaf v. Geren (2008) [opinion by Chief Justice Roberts] make clear that a noncitizen in detention cannot use a habeas claim to prevent his deportation.
JW: The petitioner in Thuraissigiam wasn’t making a core habeas challenge to his removal. And the ruling in Munaf was not that habeas is unavailable to enjoin a detainee’s transfer. Myriad cases show that challenges to deportation are properly brought in habeas.
PM: [I disagree with your readings of Thuraissigiam and Munaf.] The Supreme Court has not required plaintiffs to use habeas when they do not challenge detention. [So even if the claims could be brought in habeas, that doesn’t mean that they have to be.]
JW: But an APA claim isn’t available if a habeas remedy is adequate.
PM: The supposed habeas remedy is a phantasm. The government’s position at oral argument was that, the moment the district court TROs are lifted, it can immediately resume removal flights without affording Plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone to file a writ of habeas corpus or obtain any review of their legal challenges to removal. (P. 40.)
JW: [The habeas remedy is legally adequate.] A second reason why plaintiffs can’t pursue APA claims is that President Trump’s proclamation is not an “agency action.”
PM: [The agency actions taken pursuant to the proclamation can be challenged under the APA.]

Judge Henderson’s position on this exchange is unclear. She cryptically states:

Assuming habeas relief is no longer sought, I turn to plaintiffs’ APA claims, which again, I assume constitute claims they can assert thereunder. [P. 9 (emphasis in original.]

Two things are puzzling here. First, Henderson’s phrasing (“again”) gives the impression that she has already addressed this matter. Perhaps I’m missing it, but I don’t see it. Second, it’s not at all clear that it is proper for Henderson simply to “assume” that plaintiffs can pursue their APA claims. If they can’t, then she would presumably conclude that the government was likely to prevail in the case. Perhaps the answer to the puzzle is that Henderson previously had a passage in which she concluded that the government had failed to meet its burden of showing that APA claims weren’t available and that she would therefore assume that they were. (In the same paragraph, Henderson states that plaintiffs “no longer contest their confinement, only their detention” (emphasis added). I assume that she means deportation instead of detention.)

Unlike all the legal experts on Twitter, I’m in no position to offer a firm assessment on the competing arguments that Judge Millett and Judge Walker make. My tentative assessment is that Millett has the better of it (though I take no position on the different readings of Thuraissigiam and Munaf).

I will explain in my next post why this order strikes me as unworthy of Supreme Court review.