In an order issued this afternoon, a divided panel of the D.C. Circuit has denied the Trump administration’s emergency motion for a stay of Judge Boasberg’s temporary restraining orders relating to President Trump’s Alien Enemies Act proclamation. Judge Karen Henderson (appointed by George H.W. Bush) and Judge Patricia Millett (appointed by Barack Obama) each wrote concurring opinions. Judge Justin Walker (appointed by Donald Trump) dissented.

The three opinions run 90-plus pages. Here’s my quick stab at a summary.

Judge Henderson: (1) Although TROs are generally not appealable, these are, both because DOJ alleges that the government faces irretrievable injury and because the TROs, in addition to apply against various executive-branch officials, also apply against the president.

(2) The government is not likely to succeed on the merits.

(a) It argues that plaintiffs sued in the wrong venue, but that argument applies only against their abandoned habeas claims, not against their APA claims.

(b) The government’s suggestion that judicial review of the Alien Enemies Act is categorically foreclosed is incorrect. From Ludecke, the government draws the mistaken inference that all questions of Alien Enemies Act authority are political and thus beyond the scope of judicial review. But that is not what the Court held. Questions of interpretation and constitutionality—the heartland of the judicial ken—are subject to judicial review.

(c) DOJ argues that the term “invasion” as used in the AEA encompasses “the arrival somewhere of people or things who are not wanted there.” The text and its original meaning say otherwise.

In order to constitute invasion, there must be hostilities in a military sense. Ditto for a “predatory incursion.” Migration alone does not suffice. [Discussion of tentative nature of analysis and issues not addressed.]

(3) The government has failed to show that it will suffer irreparable injury. The district court’s injunction covers only deportation. The President may arrest and detain purported enemy aliens under the Proclamation without violating that order. The Executive’s burdens are comparatively modest compared to the plaintiffs’. Lifting the injunctions risks exiling plaintiffs to a land that is not their country of origin. Plaintiffs allege that the government has renditioned innocent foreign nationals in its pursuit against TdA. The government concedes it “lack[s] a complete profile” or even “specific information about each individual” it has targeted for summary removal.

(4) The district court’s orders are not a universal injunction. It did not enter relief beyond the parties to the suit. It certified a class of plaintiffs.

(5) The district court should modify its TROs to exclude the president from their scope.

(6) At this early stage, the government has yet to show a likelihood of success on the merits. The equities favor the plaintiffs. And the district court entered the TROs for a quintessentially valid purpose: to protect its remedial authority long enough to consider the parties’ arguments.

Judge Millett: In this appeal, the government seeks exceptional emergency relief from temporary restraining orders that do just one thing—prevent the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal. The district court has been handling this matter with great expedition and circumspection, and its orders do nothing more than freeze the status quo until weighty and unprecedented legal issues can be addressed through a soon-forthcoming preliminary injunction proceeding.

Under the AEA, when a “complaint against” an “alien enemy resident” is presented to a court of the United States, the court’s “duty” is to provide “a full examination and hearing on such complaint” and to decide whether there is “sufficient cause” to have that person removed or otherwise detained. 50 U.S.C. § 23. Judicial review has always been available to noncitizens detained or removed under the AEA.

This court has no jurisdiction to hear an appeal from a TRO. We can review a TRO only if the appellant can show that the order is the legal equivalent of a preliminary injunction. The government hasn’t shown that.

The government contends that the TROs should be treated as injunctions because they work “an extraordinary harm” to the President’s authority under Article II to conduct foreign affairs. But the government has shown no such harm here. The TROs do not affect the government’s ability to remove deportable individuals under federal laws other than the AEA or to detain and arrest anyone who is a threat to national or domestic security.

A TRO directing military deployments or maneuvers certainly would raise profound separation of powers questions warranting the most careful consideration and remediation. But nothing remotely like that happened here.

Another procedural problem with the government’s request for a stay is that it failed to request one first from the district court.

On the merits, the gravamen of the government’s position is that the President has total and unreviewable authority to decide whether the statutory prerequisites for invoking the AEA are met in Plaintiffs’ case. That argument is not likely to succeed. The Supreme Court has never applied the political question doctrine in cases involving statutory claims of this kind.

The issue of what the AEA’s text means is a question of law, not discretion. That is why the Supreme Court in Ludecke specifically held that the AEA’s “interpretation and constitutionality” are matters to be decided by federal courts.

DOJ argues that the District of Columbia is the incorrect location for this suit. But plaintiffs are pursuing APA claims, not habeas claims. The government is wrong that review of AEA enforcement lies only in habeas. The Court has never recognized habeas as the sole remedy where the relief sought would not terminate custody, accelerate the date of release, or reduce the custody level.

The other stay factors also weigh against the government. Plaintiffs face immediate removal on grounds that they say have no application to them and yet their claims have never been heard. And the removals under the AEA thus far have been not to their home countries, but directly into a Salvadorean jail reported to have a notorious reputation for human rights abuses and disappearances. The government has confessed that its preference that Plaintiffs use habeas corpus to challenge their eligibility for AEA removal 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.

Judge Walker: The problem for the Plaintiffs is that habeas claims must be brought in the district where the Plaintiffs are confined. For the named Plaintiffs at least, that is the Southern District of Texas. Because the Plaintiffs sued in the District of Columbia, the Government is likely to succeed in its challenge to the district court’s orders. The Government has also shown that the district court’s orders threaten irreparable harm to delicate negotiations with foreign powers on matters concerning national security. And that harm, plus the asserted public interest in swiftly removing dangerous aliens, outweighs the Plaintiffs’ desire to file a suit in the District of Columbia that they concede they could have brought in Texas — and that longstanding legal principles regarding habeas require them to have brought in Texas.

The extraordinary character of the TROs warrants appellate review.

The APA is not the right vehicle, both because another remedy exists and because the Proclamation is not an agency action.

The government satisfies the remaining stay factors.