Thread by @OrinKerr

DC Circuit denies the motion for an emergency stay in the Boasberg case 2-1, with a brief order and 92 pages of concurrences (one by Henderson, one by Millett) and a dissent (Walker).

I'm going to scan through the opinions and select out key parts. 🧵

media.cadc.uscourts.gov/orders/docs/20…

I'm going to stick mostly with the merits issues.

1st up Henderson: The idea that the President's call is unreviewable is wrong.

"Questions of interpretation and constitutionality—the heartland of the judicial ken—are subject to judicial review."

Henerson: Under the statute, "invasion" is a limited concept.

Invasion means a military invasion.

Millett: The district court is handling this carefully, and there is no authority or reason to intervene at this early emergency stage.

Millett: "Judicial review has always been available to noncitizens detained or removed under the AEA."

Millett: The district court merely ordered the government to maintain custody; it wasn't telling them to turn a plane around.

Millett: "The judiciary, not the Executive, has the ultimate constitutional responsibility and capacity for saying what statutes and statutory terms mean." See Loper Bright.

Millett: "the government is mistaken about the extent of unilateral Executive authority under the Constitution."

Millett: "The government’s removal scheme denies Plaintiffs even a gossamer thread of due process."

Walker, dissenting: This case should have been filed in Texas, not DC.

Walker: There's a right to judicial review here, but the proper lawsuit is a habeas petition.

A habeas petition has to be filed in the district of confinement, which here is in Texas, not DC.

Walker, dissenting: The government has shown irreparable harm by the district court's order.