SCOTUS Takes A Holiday From The Separation of Powers On The Hampton Dellinger Jitney

Apart from the Appointments Clause, I think we are standing at the precipice of federal courts revolution.

On Friday evening (after I signed off), the Supreme Court issued a terse statement in Bessent v. Dellinger. The Court didn't grant, or deny, the government's motion to vacate the TRO. Instead, it did nothing. The Court simply ruled that the government's application "is held in abeyance until February 26, when the TRO is set to expire." This document is not exactly an order. I'm not even sure what to call it. It's basically a status update. BRB if you will.

I searched the Supreme Court database on Westlaw for similar updates and couldn't find anything on point. The Court will sometimes hold a petition in abeyance while deciding another case. Ardoin v. Robinson (2022) was such a case. When a petition has already been granted, and the government switches positions, the Court will hold the case in abeyance to figure out how to proceed. The Court took this step in Arkansas v. Gresham (2021) and Becerra v. Gresham (2021). But that is putting ongoing proceedings in abeyance. Here, the Court puts in abeyance an application. And in some cases, where the Court has granted an administrative stay that will expire on a certain date, the Justices will extend that stay. These shadow docket delays occurred in the "Frame or Receiver" case and the Mifepristone case. (Remember, different rules apply to the Fifth Circuit.) But again, that is putting in abeyance an existing stay.

How does a court hold a motion in abeyance? There is no deadline by which the Court must rule. This document reminds me of a district court issuing an unappealable administrative stay of an executive order. That's not a thing. The courts are really starting to get creative.

I've been unable to find any case where the Solicitor General sought emergency relief by a date certain, the Court declined to grant that relief by the requested date, and instead the Court issued an order to simply hold the government's application in abeyance. If anyone has seen such an order, pleases email me.

The votes in Dellinger are a bit unusual. Justices Sotomayor and Jackson would have denied the government's application outright, and did not vote to hold the application in abeyance. Justices Gorsuch and Alito noted their dissent from the order holding the application in abeyance. That means there were five votes to hold the case in abeyance: Chief Justice Roberts, Justice Thomas, Justice Kagan, Justice Kavanaugh, and Justice Barrett. I predicted that the government would lose by a 5-4 vote, with Justices Thomas, Alito, Gorsuch, and Kavanaugh in dissent. I was, as usual, wrong.

What's going on here? Obviously, there was some sort of compromise afoot. I would suspect that Justice Thomas, and probably Justice Kavanaugh, agrees with Judge Katsas on the merits. But that only gets to four votes. Perhaps to forestall the Court denying the government's motion now, they agreed to join the Chief to simply do nothing for the time being. On February 26, when the TRO expires, the Court can come back and issue a ruling for the ages without any of the unusual procedural hurdles. In other words, no precedent is set now. But Hampton Dellinger has received his eviction notice for February 26. He should not get too comfy.

I would commend Justice Gorsuch's dissent. He explains quite cogently why this suit does not belong in federal court. In short, Hampton Dellinger has no equitable cause of action to seek reinstatement. At most, if he is denied his pay, he can seek backpay. And a suit for backpay would a sort of property interest. And even at equity, I think there would have been a cause of action to recover that property interest from the government. However, both Meyers and Humphrey's Executor began in the Court of Claims, and did not invoke any sort of equitable jurisdiction.

Gorsuch writes:

Under this Court's precedents, however, a federal court may issue an equitable remedy only if, at the time of the Nation's founding, it was a remedy "traditionally accorded by courts of equity." Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999). That limitation would seem to pose a problem here, for courts of equity at the time of the founding were apparently powerless to "restrain an executive officer from making a . . . removal of a subordinate appointee." White v. Berry, 171 U. S. 366, 377 (1898) (internal quotation marks omitted). "No English case" involved "a bill for an injunction to restrain the appointment or removal of a municipal officer." In re Sawyer, 124 U. S. 200, 212 (1888). And state courts "denied" the "power of a court of equity to restrain . . . removal" in "many well considered" decisions. Ibid. Given that pattern of restraint, by the 1880s this Court considered it "well settled that a court of equity has no jurisdiction over the appointment and removal of public officers." Ibid.

Dellinger is not using the Constitution as a shield. By seeking reinstatement, he is attempting to wield it as a sword. But he cannot seek affirmative relief (that is, reinstatement) absent a statutory cause of action. And Justice Gorsuch recognizes that no such equitable cause of action existed at equity when the Constitution was ratified.

Seth Barrett Tillman and I developed these arguments during the Emoluments Clauses litigation. (BTW, has anyone sued Trump yet for violating the Emoluments Clauses??)

The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires government conduct. Cases like Ex Parte Young, Free Enterprise Fund, and Youngstown Sheet & Tube Co. v. Sawyer did not provide the plaintiffs with a cause of action. Absent a viable equitable cause of action, the federal district courts lacked equitable jurisdiction to hear the three Emoluments Clauses cases. . .  .

With respect to the cause of action question, the Emoluments Clauses cases were not unique. During the Trump presidency, other courts also concluded that federal courts had equitable jurisdiction to enjoin ultra vires government conduct. 314 These holdings were flatly inconsistent with Grupo Mexicano.315 And DOJ vigorously advanced this straightforward argument—based on Grupo Mexicano—that federal courts lack equitable jurisdiction to enjoin purported ultra vires government conduct

Gorsuch's opinion is consistent with one of the sleeper cases from last term, DeVillier v. Texas and Justice Thomas's dissent in Wilson v. Hawaii. The Constitution cannot be invoked offensively without a statutory cause of action. Justice Thomas explained that "constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose."

A long line of cases stretching back to Chief Justice Chase's decision in Griffin's Case recognizes this sword-shield dichotomy. Seth Barrett Tillman and I developed this doctrine in our Section 3 article. I realize most people were focused on our arguments about whether Trump was an "Officer of the United States," but the real important contribution was about Griffin's Case. Even if you agree with Baude and Paulsen that Chase got Section 3 wrong, Chase was right about federal courts jurisprudence. Justice Samour on the Colorado Supreme Court, in dissent, fully understood this principle, and cited our article.

¶293 For now, though, it is worth stressing that, despite detractors in some quarters, the other premises have withstood the test of time: Section Three is not self-executing, and Congress has the exclusive authority to enforce it. See Cale v. City of Covington, 586 F.2d 311, 316 (4th Cir. 1978) (citing Griffin's Case for the proposition that Section Three is "not self-executing absent congressional action") . . .

¶299 Certain legal scholars have sought to explain this purported incongruence by surmising that Chief Justice Chase's application of Section Three in Griffin's Case was politically motivated. Consequently, they criticize Griffin's Case as wrongly decided and the result of flawed logic. See Baude & Paulsen, supra (manuscript at 35–49). Other legal scholars, however, question whether the statement quoted above from the Federal Reports accurately represented Chief Justice Chase's views. They point out that the case reporter, a former confederate general, was the very attorney who represented Judge Sheffey in Griffin's Case.7 See Blackman & Tillman, supra (manuscript at 15). Even assuming Case of Davis warrants any consideration at all, there is no need to join this affray because these cases can be reconciled in a principled manner by recognizing that there are two distinct senses of self-execution. Id. at 19. I find this distinction both helpful and borne out by the case law.

¶300 First, there is self-execution as a shield, allowing individuals to raise the Constitution defensively, in response to an action brought by a third party. Second, there is self-execution as a sword—such as when individuals invoke the Constitution in advancing a theory of liability or cause of action that supports affirmative relief. When acting as a shield, the Fourteenth Amendment is self-executing. Cale, 586 F.2d at 316. The Fourteenth Amendment, however, cannot act as a self-executing sword; rather, an individual seeking affirmative relief under the Amendment must rely on legislation from Congress. Id.

¶301 The Fourth Circuit aptly adopted this distinction in Cale, thereby reconciling any apparent inconsistencies in Fourteenth Amendment jurisprudence.

Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting).

Justice Samour was exactly right. And I think the Supreme Court is trending in that direction.

Apart from the Appointments Clause, I think we are standing at the precipice of federal courts revolution. All of these tick-tack suits against Trump will likely set some extremely significant precedents to reaffirm the separation of powers. If the Court follows through with DeVillier and Dellinger, and holds that statutory causes of action are needed to seek affirmative relief, entire swaths of suits will be barred from the federal courts. Overruling Bivens would just be the tip of the iceberg.