The Volokh Conspiracy
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Bagley and Bray on SCOTUS Denial of Stay in Department of State v. AIDS Vaccine Advocacy Coalition
An exploration of some of the thorny issues that divided the Court.
Over at the Divided Argument substack, Nicholas Bagley and Samuel Bray have a post, "Sovereign Immunity, Equity, and the USAID Temporary Restraining Order," exploring some of the procedural and doctrinal wrinkles that divided the justices in this morning's order in Department of State v. AIDS Vaccine Advocacy Coalition (which I discussed here). It is very worth the read.
Their first observation highlights why it is perilous to make sweeping conclusions about today's order and what it signifies about the court, the justices, or how pending and prospective litigation involving the Trump Administration will unfold.
The Chief Justice's administrative stay and the Court's denial of the application had the salutary effect of avoiding the Court being forced to decide—or to tip its hand about a decision regarding—some major legal questions. It would not be good, for example, for the Court to determine the interplay between sovereign immunity, equity, and the disbursement of federal funds on an application for a stay of an order enforcing a temporary restraining order. That emergency posture is not conducive to deliberate decisionmaking.
This does not mean that the dissenting justices did not have a point. To the contrary, Bagley and Bray note that many of Justice Alito's points are well taken, or at the very least raise significant concerns. Part of the problem is that it is not clear how courts should handle some of these questions in the context of requests for emergency relief. As they conclude the post: "The difficulty of these questions confirms the wisdom of not trying to resolve them on an emergency stay of an order enforcing a temporary restraining order."
A few other points from Bagley and Bray I thought worth highlighting:
One issue at the heart of these various requests for emergency orders is what their purpose is. Is it primarily to preserve the efficacy of the court's ultimate remedial options, or is to accelerate the decision of the case? That matters for how central the merits should be in the analysis at each stage of the case.
And:
The jurisdictional fight at the heart of the case—is this a routine APA suit or is it a claim for "money damages" under the Tucker Act?—will likely prove quite consequential. If it's an APA suit, an order setting aside the funding freeze as to the parties may well be appropriate, perhaps backed up by an injunction if the Trump administration is recalcitrant. The courts have made a practice of entering preliminary injunctive relief in anticipation of such an outcome (though we doubt that practice is sound). If it's a Tucker Act suit, in contrast, the relief will be money damages down the line, and immediate injunctive relief is probably off the table. The eventual resolution of the jurisdictional question may, indirectly, supply a gauge of the Supreme Court's willingness to police President Trump's assertion of authority to impound appropriated funds.
There's more where this came from, so if this is an issue that interests you, as they say, "read the whole thing."
