Over on the Divided Argument substack, Nicholas Bagley and Samuel Bray have a submit, “Sovereign Immunity, Equity, and the USAID Temporary Restraining Order,” exploring a number of the procedural and doctrinal wrinkles that divided the justices on this morning’s order in Department of State v. AIDS Vaccine Advocacy Coalition (which I mentioned here). It is extremely definitely worth the learn.
Their first remark highlights why it’s perilous to make sweeping conclusions about at present’s order and what it signifies concerning the courtroom, the justices, or how pending and potential litigation involving the Trump Administration will unfold.
The Chief Justice’s administrative keep and the Court docket’s denial of the appliance had the salutary impact of avoiding the Court docket being compelled to resolve—or to tip its hand a few choice relating to—some main authorized questions. It will not be good, for instance, for the Court docket to find out the interaction between sovereign immunity, fairness, and the disbursement of federal funds on an utility for a keep of an order imposing a short lived restraining order. That emergency posture isn’t conducive to deliberate decisionmaking.
This doesn’t imply that the dissenting justices didn’t have some extent. On the contrary, Bagley and Bray notice that lots of Justice Alito’s factors are nicely taken, or on the very least elevate vital issues. A part of the issue is that it isn’t clear how courts ought to deal with a few of these questions within the context of requests for emergency reduction. As they conclude the submit: “The issue of those questions confirms the knowledge of not making an attempt to resolve them on an emergency keep of an order imposing a short lived restraining order.”
Just a few different factors from Bagley and Bray I believed value highlighting:
One problem on the coronary heart of those varied requests for emergency orders is what their goal is. Is it primarily to protect the efficacy of the courtroom’s final remedial choices, or is to speed up the choice of the case? That issues for the way central the deserves must be within the evaluation at every stage of the case.
And:
The jurisdictional combat on the coronary heart of the case—is that this a routine APA go well with or is it a declare for “cash damages” below the Tucker Act?—will doubtless show fairly consequential. If it is an APA go well with, an order setting apart the funding freeze as to the events could be acceptable, maybe backed up by an injunction if the Trump administration is recalcitrant. The courts have made a apply of coming into preliminary injunctive reduction in anticipation of such an consequence (although we doubt that apply is sound). If it is a Tucker Act go well with, in distinction, the reduction can be cash damages down the road, and quick injunctive reduction might be off the desk. The eventual decision of the jurisdictional query could, not directly, provide a gauge of the Supreme Court docket’s willingness to police President Trump’s assertion of authority to impound appropriated funds.
There’s extra the place this got here from, so if this is a matter that pursuits you, as they are saying, “learn the entire thing.”
