All eyes were on the D.C. Circuit this week for J.G.G. v. Trump, No. 25-5067.  The case arises from President Trump’s March 15, 2025 Proclamation invoking the Alien Enemies Act (“AEA”), ch. 66, 1 Stat. 577 (1798) (codified as amended at 50 U.S.C. §§ 21-24) to order deportation of Venezuelan nationals that the federal government alleges are members of Tren de Aragua (“TdA”)—a designated Foreign Terrorist Organization.  The AEA states:

Whenever … any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

50 U.S.C. § 21.  The Proclamation “f[ound] and declare[d] that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States” and therefore directed that “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States” are “subject to immediate apprehension, detention, and removal, and further that they shall not be permitted residence in the United States.”  §§ 1, 3.

A group of five Venezuelans in the United States and detained in a detention facility in Texas filed a putative class action in the District Court for the District of Columbia to enjoin enforcement of the Proclamation under the Administrative Procedure Act (“APA”).  Though they originally also sought a writ of habeas corpus, they subsequently dismissed that claim.  The case made headlines after Judge Boasberg entered Temporary Restraining Orders (“TROs”) against the Trump Administration’s deportation efforts, and a (still-ongoing) dispute arose as to whether the Government complied.  The Government appealed and sought a stay of the TROs pending appeal.  The D.C. Circuit heard oral argument on the stay motion on Monday and issued a per curiam order denying the motion on Wednesday.  Judges Henderson and Millett filed concurring statements, and Judge Walker filed a dissenting statement.

The key issues before the D.C. Circuit in evaluating the Government’s likelihood of success (an element of securing a stay pending appeal) were: whether the Court would have appellate jurisdiction over the appeal; whether plaintiffs could seek relief under the APA; whether the political-question doctrine barred judicial review; and whether the Proclamation fell within the authority granted to the President by the AEA.  The D.C. Circuit also had to decide the remaining stay factors: whether the Government faced irreparable harm from the stay, whether a stay would substantially injure the other parties, and the public interest.

As a threshold matter, Judges Henderson and Walker concluded that the D.C. Circuit would have jurisdiction over the appeal of the TROs.  Ordinarily, TROs are not appealable, but there are exceptions.  Both judges relied mainly on the Government’s assertion that certain time-sensitive international negotiations would be forever lost if the TROs remained in effect.  In contrast, Judge Millett disagreed that the Government had shown a likelihood of establishing appellate jurisdiction.  She further faulted the Government for failing to seek a stay of the TROs from the district court.  However, because a majority of the court concluded there would be appellate jurisdiction, all three went on to address the Government’s merits arguments.

Judges Henderson and Millett found the Government was unlikely to succeed on the merits of its appeal.  Judge Henderson assumed that plaintiffs could proceed under the APA because they had abandoned their habeas corpus claims and no longer contested their confinement; the Government, she said, had made only a conclusory assertion before the Court of Appeals that these claims belonged in habeas.  Judge Millett concluded that the APA was the proper vehicle for plaintiffs to bring their claims.  Habeas relief, she concluded, was unavailable because the plaintiffs were contesting only their deportation, and not their confinement, and the APA provides an avenue for those harmed by agency action “for which there is no other adequate remedy in a court,” 5 U.S.C. § 704.  Both judges also rejected the Government’s invocation of the political-question doctrine; even if the AEA raises some non-justiciable political questions, they agreed that this appeal will require only that they interpret the AEA’s meaning and assess whether the Proclamation fits within it.  On the legality of the Government’s actions, Judge Henderson concluded that the Government was unlikely to succeed in its arguments regarding the interpretation of the AEA.  She reasoned that the plain meaning of “invasion” and “predatory incursion” at the time the AEA was passed do not encompass illegal migration.  She left open, however, several questions, including whether the TdA has in fact conducted an “invasion or predatory incursion … against the territory of the United States.”  Judge Millett focused her statement on the due process consequences of how the Government has implemented the Proclamation, including the Government’s asserted authority to deport individuals without either notice or a hearing.

Beyond the Government’s likelihood of success, Judges Henderson and Millett concluded that the remaining stay factors—irreparable injury to the Government, harm to the plaintiffs, and the public interest—weighed in the plaintiffs’ favor.

In contrast, Judge Walker wrote that the Government was likely to succeed in arguing that the plaintiffs could not proceed under the APA for multiple reasons.  First, he concluded that habeas corpus relief remained available (and must be sought in Texas, where they are detained, not D.C.)—and indeed, other individuals subject to the Proclamation had taken that route.  Because habeas provides an “adequate remedy in a court,” 5 U.S.C. § 704, he concluded that the plaintiffs could not sue under the APA.  Second, he reasoned that the Proclamation is not “agency action” under the APA because it is issued by the President, himself.  On the remaining stay factors, Judge Walker wrote that the Government is irreparably harmed by the TROs based on their effects on ongoing national-security operations and foreign affairs.  Meanwhile, the plaintiffs can petition for writs of habeas corpus.

On Friday, the Acting Solicitor General filed an application to vacate the TROs and a request for an immediate administrative stay in the Supreme Court.

***

The breaking news did not end there.  In January and February 2025, President Trump removed Gwynne Wilcox—a member of the National Labor Relations Board (“NLRB”)—and Cathy Harris—a member of the Merit Systems Protection Board (“MPSB”)—before their terms ended.  By statute, both could only be fired for cause.  5 U.S.C. § 1202(d) (MPSB); 29 U.S.C. § 153(a) (NLRB).  Wilcox and Harris sued for reinstatement in the district court and, in both cases, the district court granted summary judgment for the plaintiff.  The Government appealed both decisions and, like in J.G.G., filed motions for stay pending appeal.

On Friday, a panel of the D.C. Circuit (again, consisting of Judges Henderson, Millett, and Walker) issued an order in the consolidated cases of Harris v. Bessent, No. 25-5037, and Wilcox v. Trump, No. 25-5057.  Unlike in J.G.G., this time the Court granted the Government’s motions for stay pending appeal.  But like in J.G.G., the order came with three separate statements: concurring statements from Judges Henderson and Walker, and a dissenting statement from Judge Millett.

Each judge began with a focus on the likelihood of success on the merits.

Judge Walker first discussed the original understanding of the President’s removal power, concluding that the Founders understood that “the President had inherent, inviolable, and unlimited authority to remove principal officers exercising substantial executive authority.”  Then he recounted the Supreme Court’s various opinions on the matter over the course of the last century, beginning with Myers v. United States, 272 U.S. 52 (1926), and concluding with Collins v. Yellen, 594 U.S. 220 (2021).  The focus, of course, was how Humphrey’s Executor v. United States, 295 U.S. 602 (1935)—which upheld for-cause removal restrictions for members of the Federal Trade Commission (“FTC”)—fit in with the rest of the caselaw, much of which points against the constitutionality of various for-cause removal protections.  Judge Walker concluded that, in light of teachings from the Supreme Court’s recent decisions in Seila Law LLC v. CFPB, 591 U.S. 197 (2020), and Collins, courts may not extend Humphrey’s Executor beyond any agency that is not “the identical twin of the 1935 FTC (as Humphrey’s understood the 1935 FTC).”

Then, looking at the functions of the NLRB and the MSPB, Judge Walker concluded that neither fit the mold of the 1935 FTC.  The NLRB exercises executive power because it can promulgate rules and bring enforcement actions in federal court.  It possesses powers that the 1935 FTC did not and, unlike the FTC, is not subject to a “statutorily imposed partisan-balance requirement.”  Although the MSPB has a statutorily mandated bipartisan requirement, it also exercises more power than the 1935 FTC.  The MSPB hears and adjudicates intra-branch disputes (unlike the multi-member War Claims Commission, for which for-cause removal protections were approved in Wiener v. United States, 357 U.S. 349 (1958), and which resolved disputes between the government and the public); can order any federal agency or employee to comply with its decisions; can declare invalid any Office of Personnel Management rule or regulation that the MSPB thinks would cause an employee to commit a prohibited personnel practice; and can stay agency’s personnel actions.  Judge Walker concluded it was therefore inappropriate to extend Humphrey’s Executor to either agency.

Judge Henderson “agree[d] with many of the general principles in Judge Walker’s opinion about the contours of the presidential power under Article II of the Constitution, although [she] view[ed] the government’s likelihood of success on the merits as a slightly closer call.”  Judge Henderson’s statement focused on ambiguity in the caselaw post-Seila Law as to where Myers—which endorsed a broad understanding of the President’s removal power—ends and Humphrey’s Executor—which cut back significantly on Myers—begins.  She noted that in Seila Law, the Supreme Court distinguished the CFPB from the FTC in Humphrey’s Executor both because the CFPB had a single agency director rather than a multimember body and because the CFPB wielded more executive power than the 1935 FTC.  However in Collins, the Supreme Court said that the “nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head” and deemed Seila Law controlling because, like in Seila Law, the agency in Collins was headed by a single director.  Judge Henderson reasoned that “it is not clear that Collins’ instruction not to weigh up the nature and breadth of an agency’s authority extends to multimember boards.”  Despite the ambiguity, though, Judge Henderson agreed with Judge Walker that the government had shown a strong likelihood that the Constitution requires that MSPB and NLRB members be removable at-will.

Judge Millett took a very different view.  She reasoned that both Humphrey’s Executor and Wiener were directly on-point and “squarely foreclose the government’s arguments on appeal.”  Those cases “unanimously held that for-cause removal protections like those applicable to MSPB and NLRB members were constitutional as applied to officials on multimember independent agencies that exercise quasi-adjudicatory and quasi-legislative functions within the Executive Branch—just like those undertaken by the MSPB and NLRB.”  She cited statements from the Supreme Court in recent decisions that the Court was not revisiting Humphrey’s Executor as well as the conclusion from several members of the Seila Law Court that one way to resolve the constitutional defect in the CFPB would be to render it a multi-member body.  Judge Millett also cited to recent D.C. Circuit precedent applying Humphrey’s Executor since Seila Law and Collins.

After looking at the precedent, Judge Millett defended the constitutionality of for-cause removal protections based on a different telling of the original understanding than Judge Walker had given.  She concluded that for-cause removal protections comport with the Constitution’s division of authority between Congress and the Executive over staffing the government.  She also detailed historical examples of for-cause removal protections for various officers, including territorial judges, the Sinking Fund Commission, members of the First and Second Banks of the United States, and Court of Claims judges.  She reasoned that the MSPB and NLRB fit within that historical practice.  Judge Millett separately wrote about the reasons Congress gave members of these agencies for-cause removal protection and why such protection is important to those agencies’ functions.

Each judge then turned to the remaining stay factors.  As for irreparable harm, their views flowed from their understanding of the likelihood of success on the merits.  Judges Walker and Henderson explained that the diminution of Article II authority constitutes an irreparable injury.  Judge Millett, however, viewed that proffered injury as inconsistent with precedents holding that such removal protections do not diminish Article II authority.  The judges also understood the alleged institutional harms to the MSPB and NLRB differently.  Judges Walker and Henderson saw these as alleged public-interest harms that courts may be ill-equipped to weigh against the Executive’s contrary asserted harms.  Judge Millett, on the other hand, weighed those alleged harms heavily.

***

In Healthy Gulf v. FERC, No. 23-1226, in an opinion written by Judge Garcia and joined by Judge Wilkins and Senior Judge Randolph, the court rejected environmental groups’ challenges to FERC’s approval of two natural gas pipelines in southwestern Louisiana. The court found that FERC complied with NEPA because it adequately explained that upstream greenhouse gas emissions were not reasonably foreseeable since the agency could not predict the number and location of any new wells that would be drilled as a result of the project. The court also found that FERC reasonably explained that it could not determine whether the project’s effect on greenhouse gas emissions was significant or insignificant because it had no criteria for determining what monetized values are significant for NEPA purposes. The court also found FERC complied with the Natural Gas Act because it adequately considered the project’s effects on upstream greenhouse gas emissions and weighed the project’s costs, including its effects on greenhouse gas emissions, against its benefits.