Thread by @ProfMJCleveland

🧵Some more thoughts on decision denying stay that I discussed broadly below. Judge Henderson made a fatal flaw: She concluded government wasn't likely to succeed on appeal ONLY by assuming Plaintiffs could bring an APA claim. They cannot. 1/

https://twitter.com/ProfMJCleveland/status/1904986413747294257

2/ As Judge Walker properly notes, APA ONLY provides for review when "no other adequate remedy in a court," and here as Plaintiffs admitted, they could have sued in habeas. SO, bottom line is Plaintiffs aren't likely to prevail on APA claims.

3/ Judge Henderson completely ignore that problem, and instead, again, presumed such a claim. Why? My gut is because she a) questioned whether Alien Enemies Act applies to tDa and b) because she saw the harm as soooo irreparable.

4/ But what about other legal claims? Well several deal with immigration issues and case law is clear that you can't go to a federal district court FIRST and when you do it's habeas. What about "due process" and "ultra vires"? Well, those also "sound" in habeas & Henderson

5/5 never addressed if you could sue for such claims. At this point, Trump Administration should file a Motion to Dismiss the claims and turn the table on Plaintiffs.

6/ Also, given the 1-1-1 decision and Judge Henderson's (misplaced) assumption re the APA claims being valid and that the order really doesn't have much direct impact currently, I don't think Trump Administration seeks to appeal now but instead files Motion to Dismiss arguing

7/ Plaintiffs cannot state a claim for various violations: APA claims fail because alternative remedy; various immigration claims fail because they need to seek withholding of removal/asylum from INS & then habeas; due process fails b/c due process available through habeas/

8/8 and because it sounds in habeas; ultra vires fails because no common law ultra vires where you can bring habeas. Bottom line all claims but habeas fail and dismissal required. If court denies then Trump could seek to appeal interlocutorily along with PI.