The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What's Going on in the Freeze Case?
Nothing, at this point, to do with the merits of the underlying claim
Jonathan Adler [here and here] and Josh Blackman [here] have already commented on the Court's decision Wednesday (available here) in the U.S. A.I.D. funding case (US Dep't of State v. AIDS Vaccine Advocacy Coalition). I have only a couple of additional thoughts.
In its current posture, the case is a procedural and jurisdictional mess - a request to (a) vacate an emergency "administrative stay" (granted by Chief Justice Roberts last week) of (b) a Feb. 25th district court order amending its (c) Feb 13th TRO forbidding Executive Branch officials from implementing President Trump's Jan. 20th "Freeze" order (at least as it pertains to US A.I.D.). Those of you who do not enjoy contemplating the fine points regarding federal court jurisdiction might want to sit this one out; as Jonathan Adler points out, the underlying case is virtually certain to return to the Court, probably quite soon, shorn of some of its jurisdictional peculiarities, at which point the Court will presumably have the opportunity to address the (important) merits of the claim.
But if you do enjoy that sort of thing . . .
Here is the first sentence of Justice Alito's dissenting opinion (joined by Justices Thomas, Gorsuch, and Kavanaugh):
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? [emphases added]
Wow!! Even allowing for dissenters' hyperbole, it's strong stuff. Unchecked power! No jurisdiction! Billions of dollars on the line!
Justice Alito, not surprisingly, answers his own question with "an emphatic 'No,'" and declares that he is "stunned" by the fact that "a majority of this Court apparently thinks otherwise."
Two things struck me about that first sentence. The first was: why do four Justices of the Supreme Court think that the district judge here "likely lacks jurisdiction"? The case involves a claim that the Executive Order freezing the federal disbursements that otherwise were to have been made by US AID violates both the Administrative Procedure Act and the constitutional separation-of-powers. I hadn't been following the case super-carefully, but I think I would have heard if there was any question about the district court's jurisdiction to hear the claim. What's going on?
The answer, it turns out, has nothing to do with the court's jurisdiction over the plaintiffs' APA and constitutional claims, and it has nothing to do with the court's jurisdiction to issue the February 13th TRO prohibiting implementation of the Freeze Order.
The jurisdictional question arises only with respect to the district court's jurisdiction to issue the Feb 25th order requiring the government to issue payments, by midnight on February 26th, due for work that had already been completed by the date of the issuance of the District Court's TRO (Feb. 13).
That order, the government argued, is outside the district court's jurisdiction; sovereign immunity bars the district court from mandating that the government make those payments. The Tucker Act waives the government's sovereign immunity from claims like these, but only if the claimants proceed in the Court of Claims, not in federal district court.
Not only does this have nothing to do with the underlying merits of the plaintiffs' claims, it is now completely moot, the February 26th payment deadline having passed. I very much doubt that we'll hear anything more about it, at least in this case.
The second striking thing about Justice Alito's first sentence: I can't recall another time a Supreme Court Justice complained about the "unchecked power" of a district court judge - that shoe is usually on the other foot.
It is particularly weird to express dissatisfaction about the district court's "unchecked power" in a case where the Supreme Court is exercising its power to "check" the district court's exercise of its power! The district court's power to do what it did is not "unchecked"; the Court is perfectly well-positioned to stay the district court's order (or to reverse it entirely). Justice Alito was unable to persuade four of his colleagues to "check" the district court's exercise of its power, but that's hardly an example of "unchecked power"! There is a difference - a very big difference - between a district court that is truly exercising "unchecked power" and one that is exercising its power subject to the authority of a higher court (which has chosen, in this case, not to exercise its power to check the district court).
