Professor Vladeck:
But the question before Chief Justice Roberts last night wasn’t (solely) about who is ultimately going to win these cases; it was much more complicated: at the bottom of the government’s appeal is whether Judge Ali had the authority to specifically order the government to pay the $1.5 billion in obligated funds; along with whether the D.C. Circuit had the power to hear the government’s appeal from that order; and whether that order should be stayed while the Supreme Court sorts out both the jurisdictional question and the question about Judge Ali’s power to issue Tuesday’s order. The ultimate merits (must the government eventually pay) are obviously part of that calculus, but they’re not all of it.
I’ll come back to the procedural “how we got here” in a minute. Stop and ponder how messy this is, first. There are legitimate legal questions here that have nothing to do with a “Trump administration win,” as MSNBC reported it this morning. Don’t sleep on how buried the merits question is at this point (that’s where the real win/loss occurs). But start with this summary of the timeline:
The second way, and the way I, at least, reacted, is that last night’s order was simply a play for time. Although this litigation has been making headlines for two weeks, the Court itself didn’t receive anything related to it until yesterday afternoon. The D.C. Circuit didn’t rule until 8:07 p.m. And so you have a Circuit Justice trying to figure out what to do after hours, and whether he even has time to take the full Court’s temperature, with a deadline that’s less than four hours away and with a lot more going on than just the ultimate merits question.
Sure, up is down and black is white, but not always; and certainly not always in the law. There was an appellate ruling before Roberts ruled (nobody jumped the queue), and part of the issue here is what the two lower courts did. Considering all of that (and not the merits, which nobody above the trial court is considering yet, Roberts’ order actually makes sense.
He’s paused proceedings while setting a Friday, noon, deadline for briefs. Yes, that’s another delay, but this isn’t an action movie. And, like some of the continuity in the Marvel films, all the smashing and breaking does have to be cleaned up. “Move fast and break things” is an action movie mantra where the damage disappears from view as the heroes battle to victory. You never see the heroes cleaning up the mess they made; or even taking responsibility for it. Yes, the courts are the last resort for imposing responsibility, but they only ever provide compensation, at best. They never fix it “as if it never even happened.”
Dese are de conditions dat prevail.
So before “what can we expect?”, let’s examine how we particularly got here.
Thursday, February 13, Judge Ali enters a TRO to block the categorical suspension of foreign aid spending.
Wednesday (the 19th), the plaintiffs filed a motion to enforce the TRO and hold the government in civil contempt for not complying with the TRO. That order was granted the next day, but didn’t grant the contempt motion.
The next Monday, plaintiffs moved for contempt again.
“Judge Ali responded Tuesday with an order specifically requiring the administration to pay all invoices and letter-of-credit drawdown requests for work completed prior to the TRO, as well as reimbursements on grants and assistance agreements, by 11:59 p.m. last night.”
The government appealed immediately, asking for a stay pending appeal. Ali denied that stay Wednesday morning.
And at 8:07 p.m. last night, the D.C. Circuit issued a terse order holding that it lacked jurisdiction over the government’s appeal (which it dismissed); that the government couldn’t make out the burden for an extraordinary writ of mandamus; and that its motion for a stay was therefore moot. (Of note, the appeal is not about the merits; it is about whether Judge Ali had the power to issue the February 25 order.)
That point about the merits shouldn’t be overlooked. The appeal is in a question of judicial authority and, thanks to the appellate court, jurisdiction. To wit, has the government properly invoked the court’s jurisdiction. Now, to be honest, that issue is more often than not used by a court to duck deciding a case. Whether or not court has jurisdiction, after all, is up to the court. And that can turn so much on the facts, the court can preach it round AND square (change the facts, change the outcome), and get away with it.
And then Roberts stepped in, pursuant to government request, and suspended everything before the midnight deadline.
Now, what’s likely to happen? Who the fuck knows? 🤷🏻♂️ But Professor Vladeck says this may be the beginning of what he expects: the Court’s spring docket clogged with emergency appeals from rulings against Trump’s EO’s (or for them). I think the Court can see that, too, and so may look for ways to swat them away. Like ruling on the procedural/jurisdictional issues, rather than on the merits. The former has a smaller presidential footprint than the latter, but may be enough precedent to say “Be careful what you appeal, because we probably don’t have to take it.” And: “So don’t be surprised when we don’t.”
We’ll see what happens Friday. Predicting the future is a mug’s game.
