Gillitrut
Reading from the golden book under bright red stars
No bio...
User ID: 863
Gillitrut
Reading from the golden book under bright red stars
11d ago
Yes. There is a process for Bondi to overturn the determination of an IJ and if that process had occurred before his removal, there is no question it would have been lawful.
Gillitrut
Reading from the golden book under bright red stars
11d ago
8 USC 1231(b)(3)(A). An immigration judge, using the Attorney General's delegated authority, found Abrego Garcia would be threatened if removed to El Salvador and granted a withholding a removal. There is not even an allegation by the government or anyone else that they followed any part of the procedure for revising this decision before they removed him. See also Johnson v. Guzman Chavez.
Gillitrut
Reading from the golden book under bright red stars
11d ago
Given he illegally entered the US and is a Salvadoran citizen why shouldn’t the US govt be able to send him back to his native country?
Because black letter US law prohibited it. An immigration judge issued a withholding of removal as regarded Abrego Garcia and El Salvador. If the Trump administration wanted to get that withholding removed there is a legal process, that they did not follow, to do that. The regional ICE field director submitted a sworn statement that his removal was unlawful. The government's own lawyer admitted it in a hearing before the judge. Whatever you think ought to be the case as a policy matter, the law straightforwardly forbade the Trump admin's actions.
Gillitrut
Reading from the golden book under bright red stars
15d ago
I had discussed with /u/Gillitrut on whether this means individual habeas actions, but it seems like this order applies to the entire class, which is interesting.
I read some interesting discussion about this online. My recollection is that the usual issue with doing class action habeas is issues of similarity in the class. A class needs to have ~identical claims to be brought and habeas claims are usually about the particular conditions of an individual's detention. This case would face similar issues if the basis for class similarity was identification as a member of TdA (which is unlikely to be identical for every class member). However the theory I read for these cases is the class similarity is instead based on the question of whether there is actually the prerequisite "invasion" or "predatory incursion" required under the AEA. Since all class members are in an identical posture with respect to that question. Not sure that will work long-term but it's an interesting idea.
Gillitrut
Reading from the golden book under bright red stars
16d ago
There's no way that Trump and his inner circle aren't insider trading on these tariff announcements, right?
Gillitrut
Reading from the golden book under bright red stars
16d ago
More Congressional procedure shenanigans? We talked last week about some House rule inside baseball related to a proposed rule to allow new mothers to vote by proxy. I want to somewhat resurrect the topic now because it's also important for the ongoing tariff discussion. First some background.
On February 1st Trump declared a national emergency related to fentanyl and illegal aliens. This declaration was a necessary precondition to Trump's using the International Emergency Economic Powers Act to impose tariffs on Mexico and Canada. There exists a mechanism (50 USC 1622) for Congress to terminate a declared national emergency. In particular 1622(c) describes the process for the joint resolution between the two houses. This joint resolution is subject to presidential veto, but can be overridden by a supermajority of both houses. Back on April 2nd the Senate passed Senate Joint Resolution 37 which was a joint resolution to terminate Trump's declared emergency on February 1st. 16229(c)(3) provides:
(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.
So, within 15 calendar days after Senate passage the resolution is supposed to be reported out of committee and then voted on by the House within 3 calendar days after that. There is, of course, a bit of a wrinkle to this (hence this post). Recall back to mid-March and the House Resolution 211. This resolution established the terms of debate for the concurrent resolution funding the government for the rest of the year. Section 4 of that resolution provides:
Sec. 4. Each day for the remainder of the first session of the 119th Congress shall not constitute a calendar day for purposes of section 202 of the National Emergencies Act (50 U.S.C. 1622) with respect to a joint resolution terminating a national emergency declared by the President on February 1, 2025.
Basically, the 15/3 day mandatory periods are put on hold for rest of the Congressional session (which I believe ends Sep 30th). Hat tip to Gabe Fleischer at Wake Up To Politics who wrote about this at the time. This is the same kind of thing Johnson tried to do (unsuccessfully) with the new mother proxy rule. Other House members have noticed and filed their own resolutions starting the clock on such bills again. Though whether they pass remains to be seen.
I bring this up now because I've read some reporting online (no links yet) that Johnson intends to do something similar with the actual Congressional budget, adding a similar provision to stop considering of any joint resolution ending the national emergency Trump declared on April 2nd that form the basis of his current tariffs.
The foregoing is, in a practical sense, a little academic. If a supermajority of the Senate and House wanted to end Trump's national emergencies they could. I suppose the key here is that these rules provide a kind of cover for people to be vocally against Trump's tariffs without having to go on record in opposition. Trying to get the average voter to understand the intricacies of Congressional procedure as opposed to "your rep voted for/against this bill" is a herculean task. This is also not the only way Trump's tariffs could end. He could change his mind (as I write this I hear announcements that we are increasing tariffs on China and changing all other countries to a flat 10% tariff). There's also a lawsuit that Trump's emergencies do not satisfy the "unusual and extraordinary" conditions of 50 USC 1701 and so are invalid.
Gillitrut
Reading from the golden book under bright red stars
17d ago
The Court goes on to say "The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs" -- which I read to mean that the government can provide notice of intent to remove and it is on deportee to then seek relief. That's just about maximally stacking the procedural burden in favor of the government.
I agree the court was disturbingly vague. How long in advance must a prospective deportee be notified so they can "actually seek habeas relief?" A day? An hour? A minute? What about people already detained? I guess in that paragraph I was mostly thinking of people who do manage to file habeas petitions.
The most a court could order here is that CBP would be required to admit them if they presented themselves at a border crossing. They can't order a foreign government to release or transport them. Even that, I'm not sure would be considered a remedy that would redress the harm, given that it's so speculative. EDIT: It was suggested below that the US might be paying for the continued detention abroad, in which case it is possible to order the US official that is doing so to stop. I'm not quite up to my standing doctrine on whether this now counts as a remedy.
Vladeck has an article (of course) that talks about this in some detail. The short version is there is precedent for the US government working with foreign nations to return individuals who have been unlawfully removed. Both US citizens and not. He also cites a case about a US citizen who was detained by the government of Saudi Arabia, while in Saudi Arabia, at the behest of the behest of the US government. In that case the court found that if the detention was on behalf of the US then the court would have jurisdiction to order his return since the US had "constructive" custody of him.
Gillitrut
Reading from the golden book under bright red stars
18d ago
How about some more immigration news? Just today the Supreme Court of the United States issued a per curiam opinion in Trump v. J. G. G., et al. This is the case about the two planes of individuals deported under the Alien Enemies Act. The ruling is something of a mixed bag. On the one hand, the court rules that the Plaintiffs can't sue under the Administrative Procedure Act and instead must file habeas petitions to get relief. On the other hand the court also rules that determinations of whether the AEA applies to an individual are subject to judicial review and individuals have to be given an opportunity to seek that review:
More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.
The decision is technically 5-4 because Kagan, Sotomayor, Jackson, and Barrett would have left the TRO in place and allowed Plaintiffs to proceed under the APA rather than requiring habeas. All 9 agree that judicial review is available and that prospective deportees under the AEA must have the opportunity to seek it, the disagreement is about how. Whether detainees will be able to practically use that opportunity remains to be seen. Steve Vladeck, as always, has a good write up.
On thing missing in the court's ruling, though, is any mention of the ~270 individuals already deported under the act. Certainly without the kind of review the court orders today. The courts decision implies this was a violation of their Fifth Amendment rights but does not actually say anything directly about them. Can they file habeas petitions in the United States to be returned? If the government can get you out of the country is that it? There is some precedent (arising from the Guantanamo Bay detainees) that people held in a foreign country on behalf of the United States can still pursue relief in US courts. Maybe that will end up being the remedy.
We can also return to Abrego Garcia v. Noem. I made a post about it last week and quite a lot has happened since then, including today. Last Friday the judge in that case ordered:
1. Plaintiff's Motion (ECF No. 6), construed as one for preliminary injunctive relief, is GRANTED;
2. Defendants are hereby ORDERED to facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025;
The judge issued her opinion supporting the order on Sunday. The government appealed and a unanimous panel of the Fourth Circuit Court of Appeals denied the government's request for a stay. The circuit court's opinion pretty directly raises some of the concerns I mentioned in my post:
More importantly, the Government cannot be permitted to ignore the Fifth Amendment, deny due process of law, and remove anyone it wants, simply because it claims the victims of its lawlessness are members of a gang. Nor can the Government be permitted to disclaim any ability to return those it has wrongfully removed by citing their physical presence in a foreign jurisdiction. This is a slippery -- and dangerous -- constitutional slope. If due process is of no moment, what is stopping the Government from removing and refusing to return a lawful permanent resident or even a natural born citizen?
The government then appealed to the Supreme Court and Chief Justice Roberts granted an administrative stay.
The cases are not exactly the same. The Venezuelans in the J.G.G. case were at least arguably deported pursuant to a lawful authority. Even the government concedes Abrego Garcia's deportation was entirely unlawful. Still, it would be a surprise for there to be relief for the Venezuelan's deported (arguably) in violation of their Fifth Amendment rights but not for Abrego Garcia who certainly was.
These proceedings do little to assuage my concerns with the system. If you are a US citizen and get kidnapped to a prison in El Salvador and the remedy is "hire a US lawyer to file a habeas petition for you" that seems not great! Pretty bad!
If the US government actually abides by SCOTUS' order that means mass deportation via the AEA is likely dead. You're talking about individual cases in front of an Article 3 judge with all the appeals that entails for every individual you want to deport.
Gillitrut
Reading from the golden book under bright red stars
20d ago
I believe it is, although in the instant case I'm not sure what that looks like. How do you appeal the Speaker to not scheduling a vote on a motion?
Gillitrut
Reading from the golden book under bright red stars
21d ago
I hate researching anything related to Congressional Rules.
The closest thing I could find for standing Rules of the House is this package prepared for the 118th Congress (the previous Congress) which I believe is modified by House Resolution 5, which does not actually contain anything related to Rule 15 clause 2 (which is about discharge petitions). There's also a Congressional Research Service article on discharge petitions. The relevant paragraph here seems to be (c)(1):
(c)(1) A motion to discharge that has been on the calendar for at least seven legislative days (except during the last six days of a session of Congress) shall be privileged only at a time or place, designated by the Speaker, in the legislative schedule within two legislative days after the day on which a Member whose signature appears thereon announces to the House an intention to offer the motion. When such a motion is called up, the House shall proceed to its consideration under this paragraph without intervening motion except one motion to adjourn. Privileged motions to discharge shall have precedence in the order of their entry on the Journal.
The way I have heard this rule interpreted is that the Speaker is required by the Rule to schedule a vote on the motion within the two legislative days. The motion being privileged means no other motions (excluding adjournment) can be considered before the privileged motion is. Anna-Luna announced her intention to offer the motion on Tuesday, so by the Rule Johnson had two legislative days after then to put it to a vote. Arguably, that limit ran out yesterday and they are already in violation of the rule. Ordinarily even a day during a "district work period" (what Johnson declared the week until this coming Monday as) is a "legislative day" even if the House does nothing but adjourn. One might notice, reading H.Res 5, that it amends the rules of the House so that those days are not counted as legislative days for the purposes of certain rules. Ex:
“(c) Each day during a district work period described in paragraph (a) shall not constitute—
...
“(2) a legislative day for purposes of clause 7 of rule XIII;
You can read the full list of exceptions at my link above and while there is a clause mentioning Rule XV, it's specific to clause 7 (Consensus Calendars). Clause 2 on discharge petitions is not mentioned.
The above is all academic, of course. There is no mechanism I'm aware of (short of a motion to vacate the chair) to compel the Speaker to actually follow the rules. Although in some sense all rules exist only by our willingness to abide them. If the House wanted to ignore Johnson's scheduling they could. Interestingly, in the vote on H.Res 282 (the one to get rid of the discharge petition without voting on it) enough Republicans (9) voted Nay on it that they could also get a privileged resolution to declare the chair vacant (kick Johnson out) going. Is this sending a message?
Gillitrut
Reading from the golden book under bright red stars
23d ago
It's true. The HHS employees working on grants for brain cancer, or AIDs, or IVF, or whatever were responsible for why state governments decreed churches couldn't meet. I hope you understand why people like me hold people like you responsible for the economic devastation of Trump's tariffs.
Gillitrut
Reading from the golden book under bright red stars
23d ago
I think the answer is simpler: Elon is becoming a political liability. A Quinnipiac poll back on 3/13 found Elon and DOGE even less popular than Trump. Trump is under water by about 11 points (42-53) but Elon is under water by 21 points (36-57). Especially among independents, he's under-water 2:1 (31-63). A pretty solid majority also indicate they believe DOGE is hurting the country more than helping (40-54) and disapprove of the way Elon and DOGE have been treating federal workers (36-60). Heck, back in February an Economist/YouGov poll found that a plurality of respondents (46%) wanted Elon to have no influence in the administration. Compared to 25% who wanted him to have "a little" influence and 13% who want him to have "a lot."
This brings us to the Wisconsin Supreme Court election last night. Elon inserted himself pretty directly in the election, doing a $1 million dollar giveaway to promote the Republican candidate. In addition he spent upwards of $25m dollars to campaign for the Republican candidate. The democrat ended up winning anyway. I've also seen some analysis that Schimel (the Republican candidate for judge) did worse state-wide than other Republicans running, which some are attributing to Elon's prominence.
People have seen what Elon Musk has on offer and they mostly don't want it!
Gillitrut
Reading from the golden book under bright red stars
24d ago
If they didn't skip the steps when entering the country, it would be MUCH easier to determine their rights and status under the law! Government would have some record of their entry, they'd presumably be able to present some tangible evidence of their status, and they might actually have a case file open to process their claims to stay here.
So I'm not all that surprised that the Admin is shortcutting the "remove them from the country" part by taking advantage of the fact that they lack strong proof of their entitlement to remain here.
I don't understand how this applies to the instant case. It is the sworn testimony of the relevant ICE Field Director that they knew at the time they removed him that it was unlawful and they did it anyway. Due to an "administrative error." There is not any controversy about Abrego Garcia's status or whether the government could lawfully deport him to El Salvador.
No, a U.S. Court has no jurisdiction over a foreign sovereign government, but they can order the U.S. to comply with its own laws and do the thing where it retrieves a U.S. citizen from Foreign custody. Which should be pretty easy when the U.S. is the one that is paying to keep them there.
If a court order commanding the United States government to withhold payment to El Salvador pending release of some individual is likely to lead to El Salvador releasing said individual back into US custody that seems like it defeats the redressability argument for citizens and non-citizens alike. The whole question is "is there any order a court could issue that would cause El Salvador to return the relevant individual?" If the answer is "yes" then the government loses on redressability.
Gillitrut
Reading from the golden book under bright red stars
24d ago
I don't understand how either of those statutes defeat the redressability argument. What is the order a court could issue as to the government in the case of a citizen that it couldn't in the case of a non-citizen that would effect that individuals return? Quoting from the government's reply (citations omitted):
When “[t]he existence of one or more of the essential elements of standing 'depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,’ . . . it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to . . . permit redressability of injury.” Here, “Plaintiffs’ injury can only be redressed by [a] foreign nation[] not before the court.” Plaintiffs concede that Abrego Garcia is in the custody of El Salvador, a foreign sovereign over which this Court “has no jurisdiction.” Plaintiffs instead seek orders from this Court directing the United States to obtain Abrego Garcia’s release from Salvadoran custody by financial pressure and diplomacy. But they have made no showing that such measures are likely, not merely speculative, to obtain the ultimate relief they seek—Abrego Garcia’s release. There is no showing that any payment made to El Salvador is yet to occur; no showing that El Salvador is likely to release CECOT detainees but for any such payment; no showing that El Salvador is even inclined to consider a request to release a detainee at the United States’ request.
...
Because this Court has no power over a foreign sovereign and because Plaintiffs have not clearly shown that enjoining Defendants as Plaintiffs ask will likely redress their injuries, Plaintiffs lack standing for the relief they seek.
What would be different about this analysis if Abrego Garcia were a citizen? Sure maybe the Plaintiffs could point to 1732, why would that matter? What is the order of the court that would redress the harm in the case of a citizen but not a non-citizen?
"I intentionally skipped the procedural steps that would have established my right to stay in the country, but don't you DARE skip the procedural steps that would delay my inevitable removal from the country" is not a winning argument, I daresay.
The procedural steps you denigrate are important, as here, to ensure that such a person is actually removeable!
The IJ found that he faced a likelihood of being tortured if returned to El Salvador and so could not be deported there as part of the US agreement on the UN Convention Against Torture.
Gillitrut
Reading from the golden book under bright red stars
24d ago
More news in immigration yesterday. There's an Atlantic article about it. The docket is Abrego Garcia v. Noem. The facts I'm recounting come from the declaration of Robert L. Cerna, Acting Field Office Director of the ICE Harlingen Field Office. This declaration is attached as Exhibit C to the government's response in opposition to the TRO (ECF #11).
6. On March 15, 2025, two planes carrying aliens being removed under the Alien Enemies Act (“AEA”) and one carrying aliens with Title 8 removal orders departed the United States for El Salvador. Abrego-Garcia, a native and citizen of El Salvador, was on the third flight and thus had his removal order to El Salvador executed. This removal was an error.
7. On March 29, 2019, the Department of Homeland Security (DHS) served Abrego- Garcia with a Notice to Appear, charging him as inadmissible pursuant to Section 1182(a)(6)(A)(i) of Title 8 of the United States Code, “as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the [Secretary of Homeland Security].”
...
9. On October 10, 2019, an IJ ordered Abrego-Garcia’s removal from the United States but granted withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A). This grant of protection prohibited his removal to El Salvador.
10 . Following this grant of withholding of removal, Abrego-Garcia was released from ICE custody.
11. On March 12, 2025, ICE Homeland Security Investigations arrested Abrego- Garcia due to his prominent role in MS-13. Over the next two days, Abrego-Garcia was transferred to the staging area for the removal flights discussed in Paragraph 6.
12. The operation that led to Abrego-Garcia’s removal to El Salvador was designed to only include individuals with no impediments to removal. Generally, individuals were not placed on the manifest until they were cleared for removal.
13. ICE was aware of this grant of withholding of removal at the time Abrego- Garcia’s removal from the United States. Reference was made to this status on internal forms.
14. Abrego-Garcia was not on the initial manifest of the Title 8 flight to be removed to El Salvador. Rather, he was an alternate. As others were removed from the flight for various reasons, he moved up the list and was assigned to the flight. The manifest did not indicate that Abrego-Garcia should not be removed.
15. Through administrative error, Abrego-Garcia was removed from the United States to El Salvador. This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego-Garcia’s purported membership in MS-13.
That last line is, frankly, insane to me given the circumstances. "Yea we knew at the time we deported the guy to El Salvador that it was illegal for us to do it, but it was in good faith!" What is the government's response to having illegally deported someone? Too bad! The government makes a few arguments but here I want to zoom in on a particular one: redressability. Ordinarily in order for a U.S. Federal court to have jurisdiction to hear a case the Plaintiff (that would be Abrego-Garcia, his wife, and his 5 year old son in this case) bears the burden of establishing that an order of the court would redress their claimed injury. This cannot be met here, according to the government, in part because they no longer have custody of Abrego-Garcia and so there is no order the Court can issue as to the United States Government that will reddress their injury. The appropriate entity to be enjoined is the government of El Salvador, over which a U.S. federal court obviously has no jurisdiction.
As best I can tell nothing in the redressability argument turns on any facts about his legal status in the United States. The argument is strictly about who presently has custody of the defendant in question. I do not see any reason why the government could not make an identical argument if an "administrative error" meant they deported a United States citizen.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
What catches my eye in that filing is that one of the men so deported was actually Nicaraguan. Venezuelan women could be subject to deportation under the AEA and Trump's proclamation (though apparently not to El Salvador), but no Nicaraguan would be. These are the people the Trump administration argues have no right to have any kind of hearing or due process before they are deported under the AEA, even if they legally can't be apparently.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
With all the lawsuits against the Trump administration currently ongoing it can be hard to keep up with all the legal developments but I wanted to highlight one that seems particularly strange. We discussed some last week about the case J.G.G. v. Trump, this being the case of Venezuelans deported under the Alien Enemies Act. Yesterday the government filed a notice with the court that the government was invoking the state secrets privilege over the questions the court had asked with respect to compliance with this order. What renders this farcical, to me, is that it seems like almost all the information the judge wants is straightforwardly publicly available? A reminder of the judge's questions, taken from Attorney General Pam Bondi's declaration:
(1) what time the planes took off and from where;
(2) what time the planes left U.S. airspace;
(3) what time the planes landed, where they landed, and whether they made more than one stop;
(4) what time aliens subject to the Proclamation were transferred out of U.S. custody;
and (5) how many aliens were aboard the flights based on the Proclamation.
Can we answer (1)? It seems like yes. People have identified what certainly seem like the tail numbers for the flights in question. So much so that the Associated Press and Reuters have reconstructions of the timeline based on flight data. You can even look them up yourself! Here is flight N278GX, for example. You can see in its flight history that it departed Valley International Airport in Harlingten TX at around 4:26 PM CDT, bound for Comayagua International Airport in Honduras. It then departed Comayagua International Airport at 9:41 PM CST and arrived at El Salvador International Airport at 10:05 PM CST. The plane then departed El Salvador International Airport for Valley International Airport at 2:50 AM CST the next day. So we have the answer to (1) and (3) very straightforwardly. (2) can probably be derived with some math and knowing the flight route from Valley International to Comayagua International. The answer to (4), I imagine, can be narrowed to the 5 hour window after the flight arrived in El Salvador and before it departed. The planes in question are both Airbus A320, which have a typical passenger capacity in the 150-200 range which gives us some bounds on (5).
Did I reveal state secrets by making this post? Did the AP or Reuters do so by making their posts? According to the precedent's the government cites in their Notice invoking the privilege public disclosure of the secrets in question does not necessarily defeat the invocation, so it may be that the government does not answer the judge's questions after all.
Anyway, separate from the above the government has until the end of day today to file a brief as to why they should not be sanctioned for violating the court's TRO. Should be an interesting read!
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I feel like the Paul Weiss thing is extra embarrassing because the Perkins Coie TRO was issued two days before the executive order targeting Paul Weiss. Paul Weiss already had a pretty good indication that if they fought the EO they would win and then they decided not to do it anyway!
Gillitrut
Reading from the golden book under bright red stars
1mo ago
Ok, but in this specific case the US government defied a court order to deport people. It is also the government's stated position in that lawsuit that their authority to declare someone a deportable alien enemy under the AEA is unreviewable by a court. "We are allowed to deport anyone we declare a deportable alien under the AEA and no one is allowed to say otherwise" is a recipe for government deportation of American citizens without any due process. They've even got a country lined up to deport them to!
Gillitrut
Reading from the golden book under bright red stars
1mo ago
Given the many unlawful actions the Trump admin has already taken I see no reason to treat his legality concerns as anything more than a fig leaf.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
Well, According to Secretary of State Marco Rubio El Salvadore President Bukele has offered to hold American Citizens. From a BBC article quoting Trump on the deal:
On Tuesday, Trump told reporters he would embrace the idea but questioned its legality.
"If we had the legal right to do it, I would do it in a heartbeat," he said during an executive order signing ceremony in the Oval Office. "I don't know if we do or not.
"We're looking at that right now, but we could make deals where we'd get these animals out of our country."
Policy making I believe, the statute itself doesn't describe a process. I suspect the real question is to what extent the AG's determination (which requires finding a specific category applies) is subject to judicial review.
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