Another Boston Judge Enters Ex Parte TRO Hours After Filing, Without Any Time To Actually Read Filings

The judge also granted TRO of a statute without even addressing any of the usual factors.

Today, Planned Parenthood challenged the constitutionality of the Big Beautiful Bill, which cuts funding for the organization. Planned Parenthood chose the District of Massachusetts. The Motion for a TRO was fifty-three pages long. According to press reports, the District Court granted the ex parte TRO within a few hours. (ECF should really start including time stamps, now that the Supreme Court has ruled constructive denials can be measured in minutes.)

Was this even enough time to read the entire brief? To consider it? To give it some thought? Or was this just a reflexive TRO that was granted because the Defendant is the Trump Administration? We saw a similar immediate TRO granted by another Federal District Court Judge in Boston who ruled in favor of Harvard, without any opportunity to actually review the pleadings. Then again, when the Supreme Court holds that District Courts are deemed to constructively deny TROs when they don't rule in a few hours, lower courts take notice. There are no Denny's in Boston. But for those curious, the one Denny's in Lubbock is open 24x7.

You can tell the Judge in the Planned Parenthood case rushed. The order didn't even address any of the usual factors. There was zero analysis whatsoever. I don't see how this is a valid TRO. You need to at least gesture to the four factors.

Worse still, this was a TRO not of an executive action, but of an actual statute that passed bicameralism and presentment. And the judge ordered the executive branch to appropriate money that was expressly unappropriated.

Defendants, their agents, employees, appointees, successors, and anyone acting in concert or participation with Defendants shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood Federation of America and its members; Planned Parenthood League of Massachusetts; and Planned Parenthood Association of Utah.

This is basically an administrative stay of an appropriations statute!

It is not even clear the court's equitable powers supports such a remedy.

The TRO also requires the expenditure of funds not authorized by Congress, in violation of the Appropriations Clause. And SCOTUS held in OPM v Richmond (1990) that not even a court's equitable powers can overcome that bar.

— Trent McCotter (@TrentMcCotter) July 8, 2025

Lower court judges are misbehaving. The Supreme Court sent a clear signal on universal injunctions. I think a similar message needs to be sent about ex parte TROs. You should at least take enough time to "pretend" to read the complaint.

Update: A colleague found a transcript from the Boston Judge in 2023. At the time, she suggested she could not read a brief the same day it was filed:

"I don't think I can read the papers on Monday if you file them on Monday." [apparently she's gotten faster at reading] . . . I haven't read the papers. . . . I haven't read the papers yet.

Comments

[Carlos Inconvenience]

“ Lower court judges are misbehaving.”

Is tarring and feathering still legal in MA? Asking for a friend.

[Supremacy Claus]

Careful reading of the briefs would make no difference. Judge decisions are the result of feelings, mood swings, hanger, whether the wife yelled at the guy, cultural views, self interest, the interests of one's pals. After the decision is made, legal gibberish is found to justify it.

No lawyer should be allowed to be a judge. Separate judge schools should be started, since the professions are unrelated. Mature people who have suffered a little should be admitted. The message should be pounded that, the judge is applying the law, and never making the law. Judges should investigate the case. Their insurance policies should compensate the victims of their careless, wrong decisions.

[Kleppe]

"Was this even enough time to read the entire brief? To consider it? To give it some thought? Or was this just a reflexive TRO that was granted because the Defendant is the Trump Administration?"

It was granted based on who the plaintiff is, not the defendant.

[not guilty]

"The Motion for a TRO [sic -- it was in fact the Complaint] was fifty-three pages long. According to press reports, the District Court granted the ex parte TRO within a few hours."

Is Professor Blackman seriously suggesting that "a few hours" is insufficient time to read 53 pages?

[denizen]

To read 53 pages, understand legal claims that you don't see often (Bill of Attainder), research any applicable rules about whether you can order the Treasury to appropriate funds despite a lack of Congressional authorization, and do everything else you would need to do to intelligibly rule on the case? That seems like a few days of doing nothing but working and sleeping to not be grossly incompetent when you don't have counsel on the other side.

[Armchair]

Not to mention look at the actual law in question

[Brett Bellmore]

The relevant portion of the actual law in question is easy to locate, and fairly short, so that's only a few minutes.

Setting aside the laughable nature of PP's case, I'm not seeing why the judge had to act within a few hours, when PP offices actually have quite limited hours. How can taking half a day to actually consider the case be problematic when you're talking about an organization whose offices are frequently only open a few days a week, and closed on weekends?

Really, even if they had an argument on the Bill of Attainder front, the case for a TRO is remarkably weak.

[Armchair]

When writing a TRO in just a few hours, even 15 minutes starts to matter....

[Brett Bellmore]

If PP had a drop dead obvious case, you could read enough of the complaint in a few hours to determine that a TRO was justified.

This isn't remotely a drop dead obvious case in favor of PP. If anything it's drop dead obvious against them, it takes a great deal of rationalization to conclude they have a case.

And to conclude irreparable damage if the funding cutoff isn't enjoined basically requires ignoring legal standards for irreparable damage.

[Kazinski]

He's trying to be kind, being rushed maybe the only excuse the judge has for making such an unconstitutional ruling.

[Mike45]

Judges should have no excuse for unconstitutional rulings and there should be consequences for making unconstitutional rulings.
At a minimum retraining and a detailed report on their reasoning for the decision and what they will do in the future to ensure their faith to the constitution.

In egregious cases how about the court suspending the judge pending impeachment as a clear message to congress.

[tylertusta]

The ad-hoc nullification machine now comes for Article I's power of the purse.

[not guilty]

Professor Blackman's link to what he describes as a Motion for TRO is in fact the Complaint.

[JerKat]

Bill of Attainer = unconstitutional.

Law saying "cut non-abortion Medicare reimbursements (like cancer screening) to anyone who also provides privately funded abortions.". Potentially unconditional.

Sometimes even Congress passes an unconstitutional law.

[Bored Lawyer]

Do you even know what a Bill of Attainder is?
Cuz it ain't this.

Try reading here:

https://constitution.congress.gov/browse/essay/artI-S9-C3-2/ALDE_00013187/#ALDF_00020238

[JustMark]

Here's an easier to understand summary on a specific type of law (sanctions) put out by Congress in 2022. The cool part is, with sanctions, the party is generally going to be specifically identified so the issue as to if Section 71113 (Of...the Act? Or BBB? What are the cool kids calling it?) is specific enough to attainder "Planned Parenthood" is not addressed. They focused on the tests of punishment. (Historical, functional, motivation)
https://sgp.fas.org/crs/misc/IF12237.pdf

[ReaderY]

Why is this any less constitutional than conditioning funding on any number of other conditions, like staff passing a drug test or not discriminating?

[Careless]

They tried that with defending against the defunding of ACORN. It even got a judge to issue a permanent injunction against it.

ACORN got defunded.

[Dr. Ed 2]

So you sue CONGRESS, not Trump

[David Nieporent]

No, you don't. (They didn't sue Trump either, so I don't know what "not Trump" is supposed to mean.)

[kkoshkin]

"Defendants, their agents, employees, appointees, successors, and anyone acting in concert or participation with Defendants shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood Federation of America and its members"

Isn't the "customary manner" whatever is duly enshrined into law? If so, does the TRO even enjoin anything?

[John Hawkinson]

Of course CM/ECF has timestamps for all filings, available down to the second. You just have to run the proper report to see it.

[Bored Lawyer]

I repeat what I said in the other thread: where is the irreparable harm? Planned Parenthood claims it is due money payments. Even if it's right, that can be paid later. There is no irreparable harm.

[Armchair]

"There is no irreparable harm."

Of course there is. To the government. If this money goes out, the likelyhood of the government getting it back when it wins the case is low, at best.

[tylertusta]

Ironic that one of the initial provisions in the bill was security. Sadly, the parliamentarian removed it.

[SRG2]

As she had to do because of how reconciliation works.

[MaddogEngineer]

You think the government will run out of money? Really?

I've just come to here to get a good laugh from all the "Trump destroying the rule of law" people cheering on the destruction of the rule of law.

There is no irreparable harm here. Except this purported TRO.

[Bored Lawyer]

You misread him. He said the government will not get the money back from PP.

[RedheadedPharoh]

Democrats need to be banned from being judges.

[ReaderY]

Even if plaintiffs had a case on the merits, money damages are not irreparable harm, at least not absent unusual circumstances that would have to proved in a hearing.

[Aubrey LaVentana]

and money damages head to Court of Federal Claims.

[wvattorney13]

Agreed. This was always the case prior to January 20, 2025 when money damages started to become irreparable harm.

[loki13]

Tell it to the Fifth Circuit.

Seriously, there is something wrong with the people here who forget that in a run-of-the-mill Title VII case with clearly established law, a conservative group requested (litigating for plaintiffs), AND RECEIVED, an injunction from the Fifth Circuit that in any other location would be sanctionable, arguing for monetary damages (wages) because something something irreparable harm. And that wasn't a TRO. And it wasn't a trial court. And it certainly wasn't after the start of the year. So cry me a river about claimed lawlessness.

As to this case, I'm not going to bother reading the legal issues since Blackman is always a hack. Perhaps the TRO is improvidently granted (and based on what has been stated about it, it would be, although I reserve all judgement to reading the source material). But it's only in place for a short period of time and will allow for a full hearing shortly- and if Blackman actually practiced law, he would know that TROs are often granted improvidently, and then yanked when there is a hearing or a response.

[Aladdin's Carpet]

Their argument is not entirely unreasonable, but it’s pretty out there. Denying non-abortion funds to an organization that performs abortions isn't a violation of anything. It’s not freedom of association because, as the court just said in Dobbs, you don’t have a “right” to perform abortions. And even under Roe Congress has denied funding for abortions for a long time, why can they not target associations with it? Courts have also said money is fungible multiple times, and funds to one thing are not separate from funds to another.

Bill of attainder argument is patently ridiculous. Ditto for equal protection claims, which … willing to leave aside the right for abortion as tantamount to female freedom (a concept I kinda find deplorable), why must Congress fund it or associations with it?

[Katall]

Why is the bill of attainder argum 'patently ridiculous'? Arguably, the law applies to only Planned Parenthood and punishes them for their actions without process.

[David Nieporent]

Because denial of funding isn't generally considered punitive. It doesn't declare them guilty of a crime, de facto or de jure, either.

[energizzer]

It is because they are not being punished for past conduct but for future potential conduct. They can stop doing abortions at any time and get their funding back. This is a sharp, clear line that SCOTUS has drawn for bills of attainder and kills their case

[energizzer]

see Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 853 (1984) ("Congress did not even deprive appellees of Title IV benefits permanently; appellees can become eligible for Title IV aid at any time simply by registering late and thus "carry the keys of their prison in their own pockets. [cit]. A statute that leaves open perpetually the possibility of qualifying for aid does not fall within the historical meaning of forbidden legislative punishment.").

[jimc5499]

You are right. In fact a case can be made for denying all funding. It comes down to accounting. Say I have a group that wants to support a church. I'm denied funding because that would violate the Constitution. So I get funding for the homeless shelter I'm running. I also get donations for that shelter. As long as I can show that I'm spending the amount of the funding on the shelter, I can use the donations to support the church. This is the Red Cross's business model.

[r]

Why do we even have rules of federal procedure if the district courts treat them only as suggestions. Entering a TRO is bad enough. Entering an ex-parte TRO without notice and any opportunity to be heard is a clear violation of the rules, and this was also done without any legal reasoning, explanation of the irreparable harm or a statement about why the order needed to be issued without notice. Nothing about this order complies with mandatory rules that bind district courts.

FRCP 65
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(d) Contents and Scope of Every Injunction and Restraining Order.

(1) Contents. Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued

[David Nieporent]

Entering an ex-parte TRO without notice and any opportunity to be heard is a clear violation of the rules,

If there were notice and an opportunity to be heard, it wouldn't be an ex parte TRO. Also, the rules expressly provide for ex parte TROs. Now, the circumstances here don't seem to merit it, but it's something allowed by the rules.

[r]

Yes, I should have said "entering this ex-parte TRO without notice and any opportunity to be heard is a clear violation of the rules."

That's why I posted the rules. If a TRO is entered without notice, the Judge MUST "describe the injury and state why it is irreparable; state why the order was issued without notice."

The restraining order does not meet any of these 3 basic requirements.

Even if it had been issued with notice, the TRO MUST "state the reasons why it issued." The TRO doesn't even comply with this requirement. It is a blatant violation of the Federal Rules.

[Bored Lawyer]

Yes, I understood his point immediately. Rule 65 does provide for ex parte TROs. It also imposes requirements to do that. Judge ignored those requirements.
I guess lawlessness is only a problem for some branches of government.

[MaddogEngineer]

Like I wrote above, I'm just here to see all the "Trump destroying the rule of law" people cheering on the destruction of the rule of law, because Orange Man Bad.

[r]

The one thing our politicians, our political parties, all three branches of government, our bureaucracies, and political media excel at above all others is hypocrisy.

There should be an annual award show.

[Brett Bellmore]

The judge included the date and hour, anyway. But you're right: It doesn't even make a gesture towards explaining why the injury is irreparable, or why the matter was so urgent that the order had to be issued without notice.

And these aren't optional.

[thesafesurfer]

The federal judiciary is a national disgrace.

[Riva]

And then some

[Stephen Lathrop]

A non-lawyer's take on Irreparable harm in MA. I get that in Idaho putting a woman's life in danger by refusing necessary medical care after a miscarriage is necessary cruelty, not irreparable harm. I expect that will not be the law everywhere.

Lack of money for two weeks might cause a shuttering of a facility for want of funds—that would have to be shown. If true, then a dead patient might seem to Planned Parenthood to be irreparable harm. Whether harm only to the patient, or to Planned Parenthood is a question lawyers would require time to research. The question whether an unconstitutional condition empowers discriminatory denial of an appropriation looks legitimate, but also time consuming to research.

[Krayt]

Congress could yoink funding for everything, not just this, and it would be clear sailing, irreperable harm-wise. They could cancel Social Security in theory, leaving retirees in a world of hurt.

[Frank Drackman]

Planned Parenthood harms 1/2 of their Patients, it's "Planned" that way (get it?)
First day of OB/GYN rotation you're taught you have "Two Patients", the Mother to be, and umm, that other one,
Same with Obstetric Anesthesia, which is why we generally don't do General Anesthesia for Childbirth (Generally don't do General Anesthesia, get it?) anymore, as the Baby's breathing the same volatile Anesthetic as Mom (which are chemically just a less toxic form of furniture polish)
OK, there are other reason's General Anesthesia isn't the first pick (Pregnant women are considered to have "Full Stomachs" so when you put them to sleep you don't make sure you can bag them first, so...if you can't get the tube in the trachea you've got about a minute before the monitors start making scary sounds, and about 3 minutes until you've got 2 dead patients)
and I get it, Baby Killing is legal in more states than it's not legal, and there are certain categories of Babies that are more valued than others, (somebody must value them, they're not killing them) and it's big Moolah for PP,
They aren't paying for the Hookers and Lap Dances by handing out Rubbers and IUD's

Frank "My mom had General Anesthesia birthing me, and look how I turned out"

[Bruce Hayden]

My former mother-in-law claimed that she wasn’t under with General Anesthesia when she delivered her 5th child. They put her under anyway.

It’s just the way that smart middle class women had their kids in the 1950s and into the 1960s.

[Joe_dallas]

Stephen Lathrop 9 hours ago
Flag Comment
Mute User
"A non-lawyer's take on Irreparable harm in MA. I get that in Idaho putting a woman's life in danger by refusing necessary medical care after a miscarriage is necessary cruelty, not irreparable harm. I expect that will not be the law everywhere."

your delusional fantasy is a poor hypothetical

[John F. Carr]

"There are no Denny's in Boston. But for those curious, the one Denny's in Lubbock is open 24x7."

All night dining in Boston used to be limited to the IHOP in Brighton. Maybe it's better now. Boston aspires to be a "world class" city with mass transit zipping to and fro at all hours.

[Frank Drackman]

There are 17 Chick Fil-A's in the Boston metro area.
Montgomery Alabama has 5.
Tell me again who the "Yokels" (or "Hayseeds" HT Hobie-Stank) are?
OTOH there are 300 Waffle Houses in the Atlanta Metro
Because we're better than you. (as horrible as traffic is in the ATL, it's nothing compared to that Abortion around Logan)
How you like "Dem Apples"??

Frank

[Magister]

The Boston metro area has almost as many people as all of Alabama, and more than ten times the population of the Montgomery metro area.

[Frank Drackman]

All those peoples and not one College Foobawl team that's won a Natty (and Amherst or U Mass in the 1890's doesnt count I mean since the forward pass was legalized)
Oh yeah, Fenway sucks it really does, Wrigley is way better, heck, Citifield in Queens is better
and if Baw-Stun is so great, why don't the Patriot's play there?

Frank

[Martinned]

It's almost as if these judges don't understand that we're now in a world where Trump and his faction can do whatever TF they want.

[Brett Bellmore]

We were always in a world where Congress could refuse to fund abortions. Trump has nothing to do with that.

[CountmontyC]

Yes, how dare Congress and the POTUS excercise their constitutional authority without a district judge's consent.

[John F. Carr]

OPM v. Richmond, 496 U.S. 414 (1990):

This case presents the question whether erroneous oral and written advice given by a Government employee to a benefits claimant may give rise to estoppel against the Government and so entitle the claimant to a monetary payment not otherwise permitted by law. We hold that payments of money from the Federal Treasury are limited to those authorized by statute, and we reverse the contrary holding of the Court of Appeals.

The courts in this case were reviewing a decision of the Merit Systems Protection Board. There was no question about subject matter jurisdiction.

Four members of the court refused to rule out the possibility that a constitutional violation could justify an unappropriated money judgment. White and Blackmun, concurring:

the Court does not state that statutory restrictions on appropriations may never fall even if they violate a command of the Constitution such as the Just Compensation Clause

Marshall and Brennan, dissenting:

The Court does not decide whether the Appropriations Clause would bar the Judiciary from ordering payments from the Treasury contrary to a statutory appropriation either where such payment would be required to remedy a violation of another constitutional provision, such as the Due Process of Just Compensation Clause, or where Congress' refusal to appropriate funds would violate separation of powers.

[Lee Moore]

Interesting case.

First, the dissent from Marshall and Brennan looks like a Hail Mary of more than usual desperation. Even if there were a violation of another constitutional violation, the constitution's express rule against paying money from the Treasury unless appropriated by statute, would win by virtue of being specific. The courts would have to find a different, constitutional, remedy; and if none could be found, then just accept that the law does not cure all ills.

Second the court in OPM v Richmond was quite open to the possibility that while the court could not order funds to paid out of the Treasury unless they were duly appropriated, there might be other appropriations that might be drawn on in some cases - eg the Federal Tort Claims Act and appropriations to make payments on judgements arising from it. It was just that Mr Richmond's unfortunate treatment did not fall into the FTCA category.

I suppose it is conceivable that the judge in this Planned Parenthood case thinks that something similar, ie another appropriation arising elsewhere, might apply here. Though it's hard to see how since the BBB would be the later, and more specific, statute.

[Mark In Florida]

It doesn't look like any thinking was done on the judge's part, just reacting with TDS.

[Sarcastr0]

Last go-round, didn't every practitioner around here (except BL natch) roundly mock Blackman for not knowing how to use ex parte, and not understanding a TRO is not a showing of the merits?

Also lol at 'Boston judge.' Just get a radio talk show with that hand-waivey whining. What embarrassing behavior for a supposed scholar.

[Brett Bellmore]

Here's where the President's independent obligation to follow the Constitution kicks in: The TRO literally commands the executive branch to commit unconstitutional acts, to violate the appropriations clause.

I don't see how the administration doesn't have a perfectly good case for ignoring the TRO while appealing it.

[Malika the Maiz]

Doubt we want every administration to defy every court ruling they think is constitutionally wrong. This can be worked out via appeal.

[Brett Bellmore]

There's "constitutionally wrong", and there's "mandates unconstitutional acts". This is the latter.

But, yes, this can be worked out via appeal, the question is whether in the mean time a solitary judge can order the administration to undertake an act they are, under their own (entirely plausible!) reading of the Constitution, prohibited from taking.

This TRO is going to be overturned pretty quick, the only question is whether in the hours that takes the administration is actually obligated to cut PP a check.

[Lee Moore]

I think kkoshkin has the answer above.

"...Defendants shall take all steps necessary to ensure that Medicaid funding continues to be disbursed in the customary manner and timeframes to Planned Parenthood Federation of America and its members"

Cutting checks drawn on unappropriated funds is not "the customary manner."

[Brett Bellmore]

Nah, I think the TRO here is a joke, but that's still sophistry, since cutting checks drawn on unappropriated funds is exactly what the TRO commands.

[Malika the Maiz]

Often an order someone thinks is constitutionally wrong is going to also in their view mandate unconstitutional acts.

[Brett Bellmore]

But you can still distinguish between a TRO which orders you to refrain from something you think constitutionally permissible, and a TRO which commands you to do something which you think constitutionally prohibited.

The former may just be directing you to exercise your own discretion in a particular way temporarily, while the latter is telling you to do something you understand yourself to be flatly prohibited from doing.

[r]

If I'm a government officer in charge of making these payments, I'm now faced with violating a federal statute punishable with both administrative penalties (suspension or removal from office) and criminal penalties (up to $5,000 fine and 2 years in jail) or contempt of court.
My first choice is to schedule a last minute vacation. But if that doesn't work, I'll risk contempt of court before I commit a crime punishable with jail time. I'm not sure if "just following orders" is a valid defense here.
31 U.S.C. §§ 1517(a), 1518, 1519.

[Lee Moore]

Not if the money's been spent.

[Calliope]

No we don't, but if there was an order the administration would be justified in ignoring it's this one. No one is defending these either substantively or procedurally. We know it's a bad order because it doesn't even bother to try and justify itself despite obviously needing justification.

I'm trying not be paranoid but it's like the judge was trying to do something so outrageous the administration was bound to ignore it.

Do you really think a judge could write anything they want without limit and they have to listen? Could a district judge overturn the election?

[r]

Wouldn't be surprised if a couple are thinking about it and just waiting for the right litigant to request an emergency TRO appointing Harris as President.

[tylertusta]

I don't see how the administration doesn't have a perfectly good case for ignoring the TRO while appealing it.

Because the administration is expected to follow the orders of an imperial judiciary.

[Phanatic]

Literally nobody is supposed to follow an illegal or unconstitutional order.

[Joe_dallas]

paging kbj

[David Nieporent]

literally commands the executive branch to commit unconstitutional acts,

And lord knows this administration would never do that!

[r]

You want to give them excuses?

Great playbook - now we'll have someone file a complaint in Texas asking for a TRO compelling the administration to immediately transfer all immigrants in ICE custody to El Salvador. Once the Judge enters the TRO, the administration will have no choice but to comply for the next 14 days.

[MaddogEngineer]

What-about-ism!

[David Nieporent]

It wasn't whataboutism, because I wasn't saying that it's okay for the judge to do so because the administration had done so. I was just amused at the feigned shock and horror.

On the merits, my position after doing a bit of reading of the pleadings is that the theory of the case makes for a better law review article than it does an actual lawsuit. The arguments are creative, but extremely unlikely to prevail. (Which means that no TRO should have issued.)

[Frank Drackman]

Must. Keep. Killing. Babies.
At least (the) Son of Sam only killed Adults, and then only because Sam (his neighbors Black Lab) told him to.
Oh, and he was Insane (the Son, not Sam) so there's that.
Planned Parenthood kills Babies, unborn ones, mostly Black, (with a smattering of Brown and White ones, to keep appearances up, funny that the Inscrutable Asians haven't really taken to Infanticide) and they and their supporters are the "Sane" ones?
and people wonder how the Horror-cost happened.

Frank

[Malika the Maiz]

lol, nothing gets the edgelord wannabe Frank Fakeman character crying like abortion! Baby Holocaust! This comment section deserves a better class of sad, pathetic weirdo performing a fake edgelord character here.

[Frank Drackman]

too bad your character "LOL"ing about 70,000,000 dead Black Babies isn't fictional.
As Ah-nold said (playing a fictional character, I know, he isn't really a Killer Cyborg from the future)
"It is in your nature to destroy yourselves"

Frank

[Malika the Maiz]

OMG, I think our little phoney edgelord is crying!

[Frank Drackman]

Sorry I come from the race that has emotions and can show "Blood in the Face" it's why yours only gets a "Participation Trophy" at the Civilization Field Games.

[Armchair]

I think we need to seriously consider Judicial conduct complaints at this point, based on prejudicial conduct.

"The Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364, establishes a process by which any person can file a complaint alleging a federal judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” "

https://www.uscourts.gov/administration-policies/judicial-conduct-disability

[Lee Moore]

It would be a serious "breach of norm" to use that Act against a judge who was not appointed by Trump.

[apedad]

Maybe read your link next time.

"The judicial conduct and disability review process cannot be used to challenge the correctness of a judge’s decision in a case. A judicial decision that is unfavorable to a litigant does not alone establish misconduct or a disability."

[Armchair]

"A judicial decision that is unfavorable to a litigant does not alone "

But a decision which is so fast and ignores the addressing any of the normal factors of a TRO.....

[Poxigah146]

Which is complete bullshit. A biased judge or a judge acting illegally can easily couch her ruling in factual determinations that would be very difficult to overturn, if appellate courts can't consider bad faith.

[Michael P]

The challenge here isn't to the correctness of a decision but to the gross violation of procedural requirements. It's about violation of due process and FRCP, not the merits of the case.

[Frank Drackman]

"47" has been "47" for almost 6 months, why are National Pubic Radio/Pubic Broadcasting System still getting Uncle Sammy Shekels??
Why is Planned Infanticide still in the Baby Killing Business?
I know he's been busy changing Base names, renaming Ships, Breaking Ear-Ron's toys, restructuring US Trade policy,
but C'mon Man! (HT Prostatic Joe)

Frank

[Riva]

The judicial impeachment process has a lot of catching up to do.

[tylertusta]

Indeed. I hate that were getting to a point where frivolous legal theories are used to bootstrap patently illegal TROs to disburse funds that Congress expressly forbade.

I've said before that Congress is actually the strongest branch, but it slumbers in its schizophrenia. Maybe now it will awaken.

[Poxigah146]

The problem is that 47 of the 100 senators will actively support what these courts are doing.

[tylertusta]

Sadly you are going to be correct. If it had been over anything except abortion we might have seen some principled Democrat Senators wanting to preserve their ability to pass legislation that funded their priorities while defunding things they don't want.

Since this law is about abortion, and since Trump is President, Democrats are going to lose their minds again. They'll gladly surrender Congress's own powers so long as it preserves abortion mills.

[Poxigah146]

It's not limited to abortion, but anything immigration or gun rights as well.

[Brett Bellmore]

It's actually the default circumstance at this point.

[Poxigah146]

I agree with that. I'm sure I could find some issue on which a few so-called "moderate" Democratic senators may disapprove of the hypothetical court's actions, but it certainly isn't most.

[Drewski]

"Supreme Court holds that District Courts are deemed to constructively deny TROs when they don't rule in a few hours"

They did not. What they actually held was (checks notes) Professor Blackman is full of shit. Says it right here, "full of shit," with a footnote suggesting it's really rotten.

I dare you to try filing a constructive denial appeal in a non-urgent case and throw that line at the court in support. I double-dog dare you.

[SRG2]

I would like to know the actual timing. How long were those "few hours"? 2 hours would seem too short, but 5 hours would seem sufficient. The SC has no problem rejecting last-minute DP appeals in a few hours.

[r]

Complaint filed: 11:12:00
TRO Motion filed: 11:38:45
Memo in support of TRO filed (with multiple affidavits): 11:45:32
TRO issued: 17:24:04

So it was six hours, not just a couple of hours. But that raises another question - if the Judge sat on this for six hours and issued the order after close of business, why couldn't the Judge conduct an emergency hearing early the next day and give the gov't an opportunity to be heard?

What was going to happen between 5:30 on Monday evening and 9:30 on Tuesday morning that made it so important to issue an order with no hearing and no notice? These no-notice TROs are supposed to be super-rare because of obvious due process issues, and are only supposed to issue if there is a real emergency requiring immediate action or if tipping off the other side will itself cause harm (something like, if we tell the gov't we're filing this, they'll immediately load our client on a plane and fly him out of the country).

Also, if the Judge had this for more than six hours, the Judge had plenty of time to comply with the mandatory requirements under FRCP 65 that REQUIRES the TRO to describe the injury, state why the injury is irreparable, and why the order is issued without notice, as well as an explanation for why the TRO was issued.

There is no excuse for this and it makes the whole judicial system look bad

[David Nieporent]

So it was six hours, not just a couple of hours.

Look, there's no way Blackman can be that wrong. Your math must be off.

And I don't think, "Well, if it took six hours, then obviously it could wait 24 hours" is a valid argument. But I do agree that there's just nothing I can see here that justifies an ex parte TRO, even if all the procedures had been properly followed, and I'm not sure that any TRO could be justified. (The plaintiffs try to rely on the possible harm to patients, but even if that's valid, it's hard to see how a brief pause could be irreparable harm.)

[r]

"And I don't think, "Well, if it took six hours, then obviously it could wait 24 hours" is a valid argument."

The points I thought I was making:

1. If the order was issued at 5:30 in the evening, there seems to be no reason it couldn't have waited until 9:30 in the morning. I could certainly imagine facts that would compel entry of an order at 5:30 in the evening without a hearing, but none of those facts exist in this case.

2. If the Judge had this for six hours, the Judge had plenty of time to draft an order that complies with the Federal Rules, which requires an explanation for why the order was issued, usually including an analysis of the typical TRO/preliminary injunction factors. A full treatise isn't necessary, but six hours should be enough to put together at least a couple paragraphs justifying why the Plaintiff is likely to prevail on the merits and what sort of irreparable harm is being prevented by entry of an order with no hearing. It certainly looks like she ignored that step because of the weakness of the arguments.

[David Nieporent]

I don't know anything about the judge; I practice in NY/NJ, not MA. So I won't try to guess why she did what she did. But I do find it pretty indefensible that she didn't write something — even something perfunctory — to justify her order.

[David Nieporent]

As a quick reaction, the merits of PP's position seem a bit dubious. But people are throwing kind of a big tantrum over a mere TRO.

[Lee Moore]

I agree. So long as the government ignoring this "mere" TRO gets the same indulgence.

Mere for thee and mere for me is fairy nuff.

[r]

A "mere TRO" that requires the administration to spend funds not appropriated by Congress. That is an illegal act. 31 U.S.C. § 1517(a). It is punishable as a misdemeanor - up to $5,000 in fines and two years in jail. 31 U.S.C. § 1519. Also results in suspension or removal from office. 31 U.S.C. § 1518.

[JoeFromtheBronx]

Is following a judicial TRO based on the possibility that the defunding is unconstitutional the same as "knowingly and willfully" breaking that provision? Also, what is the punishment for ignoring congressional funding, including firing people authorized by law?*

Let's say a provision defunds Medicaid for Catholics.

A judge hands down a TRO stopping the defunding temporarily as a likely violation of the First Amendment. Should a person who continues to provide Medicaid to Catholics be removed from office?

==

* Just a hypo! Never came up recently or anything!

[r]

I don't know. As a hypothetical government officer responsible for issuing checks to PP, why should this risk fall on me? The statute clearly prohibits spending money not appropriated by Congress, and provides up to 2 years in jail if I violate it.

If I spend the unappropriated money, even if following a District Court order, yes, I have knowingly and willfully violated that statute. There might or might not be a defense based on following orders - I don't know the answer to that. But the Court is really putting government employees in a very difficult position. And I don't think it's beyond this administration to threaten criminal violations for violating this statute even with the Court's TRO.

It's ironic that the same courts and judges that care so deeply about due process in some circumstances are so willing to violate due process by issuing no-notice TROs. [And I'm not saying the administration is any less hypocritical.]

[JoeFromtheBronx]

How these things tend to play out, the law is applied with certain understandings, including "clearly prohibits" having an exception when a person acts pursuant to a judicial order.

I also don't understand how due process is being violated here.

What is a "no-notice TRO" exactly? The government was notified.

"Democrats" are not silent. Regularly, Democrats provide nuanced responses to these things, including acknowledging certain challenges are weak. I have seen that regarding this very lawsuit.

The fact that either side is not going to be totally neutral about such things is granted.

[r]

"the law is applied with certain understandings" Do you want to make that argument to Pam Bondi? Would you trust that this administration is going to be reasonable on an issue like this?

And how was the government notified? Sending an email to some government lawyers at the same time they file the motion and asking for immediate entry of a TRO without a hearing is not due process. Due process can mean many things, but at its core, it's that every party gets a fair chance to be heard before their rights are affected. TRO's without hearings may be issued in limited emergency circumstances, but there is no question that they affect rights without any opportunity to be heard - a violation of due process (just like sending someone to El Salvador without a chance to object is a violation of due process).

And here, there is no emergency requiring entry of an order without a hearing. The order was entered at 5:30 Monday evening. A hearing easily could've been scheduled for 9:30 Tuesday morning and the Court could've allowed all parties an opportunity to be heard.

[JoeFromtheBronx]

"the law is applied with certain understandings"

Do you want to make that argument to Pam Bondi? Would you trust that this administration is going to be reasonable on an issue like this?

I don't trust this administration much at all.

But, either way, the law is applied with such general understandings. You raised the idea of someone losing their office etc. I cited a qualifier.

a violation of due process

I am not aware of the specific requirements for notice to governments in this context. You argue there was notice but not enough notice. Not "no notice."

People who are concerned with "due process" tend to be worried about people, not the federal government being mistreated. The Due Process Clause refers to "persons."

As a general principle, I'm fine with the argument somewhat more time could have been spent here. I don't think PP would be harmed by it as compared to someone about to be deported to El Salvador.

[r]

On the notice issue - the article states it was an ex-parte TRO motion (no notice). On reading the actual pleadings, that's not quite true. Emails were sent to 5 government lawyers when the motion was filed. But the effect is the same as there was no meaningful opportunity to be heard.

[Mr. Bumble]

"...a bit(?) dubious."
A bit of an understatement?

[Life of Brian]

Consider the source. When Nieporent can't even bring himself to conjure up some sort of too-cute defense of a piece of anti-administration lawfare, that's when you know it must be borderline frivolous and sanctionable.

[Bored Lawyer]

Other than the TRO ignores the express requirements of Rule 65, ignores long-standing controlling authority that injunctive relief requires a showing of irreparable harm, and that it flouts the will of Congress, what's to get upset about?

The judiciary depends on its legitimacy. This act was lawless and undermines judicial legitimacy.

[Longtobefree]

OK, got it.
Congress can't pass laws. Lower courts say so.
Presidents can't execute laws. Lower courts say so.
The supreme court can't make rulings lower courts have to follow. Lower courts say so.
Time to water that tree of liberty.

[SRG2]

OK, got it. Congress can pass unconstitutional laws and presidents can issue and execute unconstitutional orders, but courts mustn't intervene to stop them,

No doubt XY will condemn you for calling for bloodshed.

[Bored Lawyer]

What's unconstitutional about this law? Let's see what the judge said.
Wait! She actual said nothing.
So the basis of the TRO is, "Because I said so." That works for parents talking to four year olds. It doesn't work for Article III judges enjoining laws passed by a democratically elected Congress.

[SRG2]

I was addressing Longtobefree's general point.

[r]

If a court is going to call a law passed by Congress unconstitutional, I would hope a little more than five or six hours of thought would go into that determination.

Getting a TRO motion and immediately spitting out a TRO on the same day compelling the administration to ignore Congress because one party claims a law is unconstitutional is overstepping the judiciaries' bounds.

[David Nieporent]

The court didn't call anything unconstitutional; it's a TRO. Properly or not properly issued, either way it's not a decision on the merits.

[Bored Lawyer]

DN, you are smarter than that. Really. A TRO requires a finding of likelihood of success on the merits. And likelihood of irreparable harm. This one had nothing. NADA. Zip. It's a "cuz I said so" TRO.

[David Nieporent]

I realize that, but finding of a likelihood of success on the merits is still not an actual legal finding that anything is unconstitutional.

[r]

That's an awful fine distinction.

I said "If a court is going to call a law passed by Congress unconstitutional, I would hope a little more than five or six hours of thought would go into that determination."

Instead of just agreeing with what I would think is obvious, you're response is: No, the Court just found a likelihood that the law is unconstitutional.

Instead of blocking a law passed by Congress because it is unconstitutional, she blocked the law because, after reading one brief and a few affidavits, and not allowing any argument by the government, she decided the law *might* be unconstitutional but without making any legal finding. Do you really think that's better or somehow changes how god-awful this TRO is?

[r]

The Judge completely ignored her obligation under Federal Rule 65(d)(1)(A) to "state the reasons why it issued." But, as Bored points out, a TRO should never issue unless the litigant can show both a likelihood to win on the merits (which here means a finding that the law is likely unconstitutional) and irreparable harm if the order is not issued.

The Judge clearly didn't want to explain her reason for issuing the TRO because both of these requirements are so weak.

[MaddogEngineer]

If you're going to argue the law is unconstitutional, you need to explain exactly what about the law is unconstitutional. You, and the district court judge too.

SCOTUS can issue a per curiam order with a prior record as context, because it's supreme. It's bush league for a district court to do this, on an ex parte TRO. Especially when, as others have pointed out, the circumstances do not qualify as an emergency for such an ex parte order.

But again, I'm just hear to see all those alarmed about threats to the rule of law cheer on attacks on the rule of law. Entirely predictable, based on Justice Jackson's torched dissent in Trump v CASA.

[David Nieporent]

If you're going to argue the law is unconstitutional, you need to explain exactly what about the law is unconstitutional. You, and the district court judge too.

I mean, the plaintiffs did explain exactly what about the law is unconstitutional. You can agree with their argument or not, but you can't complain that they didn't do so.

(That's separate from your point about the judge.)

[damikesc]

The COURT did not. That is the issue. Plaintiffs making laughable arguments are the norm.

Courts are really going to miss having credibility.

[Katall]

Would a law that says the gunshops that sells pistols are taxed at a higher rater when selling rifles than all the gun shops that sell only rifles be legal? I have my doubts.
So, it is similar to this, which is 'everyone who provides a service can be paid, but not those who also provide abortions.'

If the law said 'no government payments for these services to anyone', there would be no case.

[Brett Bellmore]

I see a couple fundamental issues with your comparison.

1. Firearms sales implicate a constitutional right, while provision of abortion does not.
2. In one case it's a higher tax, in the other it's denial of a subsidy.

Actually, were it not for the 1st point, your proposed tax probably WOULD pass constitutional scrutiny, because the government is actually entitled to be somewhat arbitrary in imposing taxes.

Just as it is in handing out subsidies.

What the law effectively says is, "no government payments for these services to anyone, and we're done with pretending that money isn't fungible".

[Katall]

Brett, I believe you are mistaken. Funds can be paid for medicaid services, except if the provider also provides abortions.

Would the government also be able to pass a law providing that people who gave money to Planned Parenthood had to pay higher taxes on income unrelated to Planned Parenthood?

[Brett Bellmore]

Probably, yes. The 16th amendment has been interpreted as granting Congress basically plenary taxing power.

But, again, this isn't about taxes, it's about appropriations, and the Constitution is quite explicit about no money being paid out from the treasury except pursuant to a congressional appropriation.

The federal government has long had a law barring funding abortions, all this does is recognize that money is fungible, and stop funding organizations that perform abortions.

[energizzer]

You think congress can pass a law taxing registered republicans at a higher rate? (I hope you dont).

The same exact issue comes in with taxing people who donated to PP at a higher rate.

[Longtobefree]

If congress ever gats around to passing a low that states district court ruling only apply with that district, can this judge overrule that legislation?

[apedad]

"The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The Constitution only grants Congress the authority to establish (and I'll assume disestablish) inferior courts but does not grant Congress authority to limit their authority.

That's why the Supreme Court recently limited the power of district courts to issue “universal injunctions” and not Congress.

[Mr. Bumble]

"... but does not grant Congress authority to limit their authority."
Think you are wrong on that.

[Brett Bellmore]

Relevantly, from Article III:

" The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

....

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Now, I personally think that the above 'jurisdiction stripping' language was actually intended to allow Congress to move specific topics from the Court's appellate to original jurisdiction, NOT to allow Congress to deprive any court at all of original jurisdiction. That the judicial power extending to ALL cases in law and equity actually prohibits jurisdiction stripping! And I have some support on that score from early jurists. But that's not the view that prevailed.

[David Nieporent]

The boldfaced language is about the appellate jurisdiction of SCOTUS.

[Brett Bellmore]

Right, that's how I interpret it: As permitting Congress to move some classes of cases from the Supreme court's appellate jurisdiction to their original jurisdiction, bypassing the lower courts. With all cases and controversies remaining within the jurisdiction of SOME part of the judiciary.

But that's not how it's been interpreted for a very long time.

[David Nieporent]

Yes, like since Marbury v. Madison, which expressly held that the constitution defined the entirety of the original jurisdiction of SCOTUS.

[Bored Lawyer]

Brett Bellmore provided the Constitutional provision that proves you wrong.

Stop and think. Acc. to you, the Federal Rules of Civil and Criminal Procedure are unconstitutional. Does that make any sense to you?

[energizzer]

The Supreme Court limited the power of the district courts to grant universal injunctions based on what it interpreted to be CONGRESSIONALLY dictated limits on inferior courts as set forth in the Judiciary Act of 1789. It was statutory interpretation of the Judiciary Act that limited the power of the inferior courts. This cuts directly against your thesis.

[John F. Carr]

Does Planned Parenthood of Texas need to sue in each of the four districts of Texas?

[vaadu]

Roberts needs to take the judge to the woodshed. Tell her to remove the ruling and say the court has no standing. If she refuses he will publicly admonish her for political grandstanding and an embarrassment to the judiciary.

[Mike45]

The court need to suspend her "pending impeachment" as a strong message to both congress and the other courts.
Let her resign if she wants to avoid removal.

[JoeFromtheBronx]

Where is this woodshed? Is it in the Fourth Circuit?

Why does the court have no standing? Or jurisdiction for that matter?

[Brett Bellmore]

And if she doesn't care, he can publicly admonish her again!

[JoeFromtheBronx]

The complaint has a lot of boilerplate stuff. The core claims can be quickly read. It's a temporary restraining order. A lot of stress here.

I appreciate that some people are very concerned about congressional funding requirements. This was not as much of a concern of some people not that long ago.

I don't think this lawsuit is likely to have legs long term but that is true for a various of lawsuits from ideological groups across the ideological divide. The same goes to questionable judicial decisions. Conservative judges make bad calls there.

"It is not even clear the court's equitable powers supports such a remedy." I appreciate the qualifier. So, the judge might be wrong? That's what you are saying there?

As to judicial "misbehaving," I'm all for proper addressing of that but JB is not a consistent actor on that front.

[MaddogEngineer]

A little bit of lawlessness is okay, if it's for a good cause.

I've trashed Blackman about his lack of principles, but he's not wrong here. Stopped clock, yada yada. At any rate, his opinion is irrelevant to whether this TRO is defensible.

(This does not meet the standard for irreparable harm, as other prior EO cases have already shown.)

[JoeFromtheBronx]

A little bit of lawlessness is okay, if it's for a good cause.

Can you trash yourself a bit for such inane strawmen?

[MaddogEngineer]

What strawman? Why issue this purported TRO, without any justification, instead of waiting for both sides to file briefs? (SCOTUS is allowed to do that, because it's supreme. A district court does not have that luxury.) How long might that take, a couple of days?

The issue here is no emergency, like deporting aliens has been made out to be. It's just money. Do we even know if it's stopped flowing yet? (Yeah, sorry, I haven't read the complaint, but I have my doubts the government is that efficient.) Even if it has, that does not yet meet the current standard of irreparable harm as I understand it.

So yeah, a little bit of lawlessness by the district court.

[JoeFromtheBronx]

A little bit of lawlessness is okay, if it's for a good cause.

Who is saying a little bit of lawlessness is okay? Not me.

[Poxigah146]

That's literally the left's main position these days. The ends always justify the means.

[loki13]

"but JB is not a consistent actor on that front."

JB is, in fact, quite consistent in all things. If there is water that needs carrying, he will carry it.

[JoeFromtheBronx]

I'll acknowledge that.

[Bob from Ohio]

JB is wrong, it takes only a few seconds to read and understand the names of the plaintiff and defendants in caption.

[Mark In Florida]

The House should immediately impeach her. Though the Senate would never convict, she'd have to spend many month preparing for her trial, keeping her from making more erroneous rulings.

[Bored Lawyer]

If I were on the Court of Appeals, I would issue a mandamus vacating the TRO, and ordering reassignment to another district judge. Fat chance that will happen, but that is what she deserves.

[Bob from Ohio]

"Fat chance that will happen"

You can say that again. Zero GOP appointed judges in that circuit I believe.

[John F. Carr]

The courts of Massachusetts were faced with a standoff between a constitutional right to money and a lack of appropriations. The voters had enacted public financing of political campaigns. The legislature has a constitutional obligation to fund laws passed by voters. The incumbents in the legislature refused to appropriate funds. When plaintiffs got a money judgment against the state the legislature refused to appropriate money to the fund normally used to pay judgments. Because plaintiffs had a constitutional right, not merely a statutory right, this situation was unacceptable. The trial judge decided plaintiffs could seize and sell state property. No money was being spent from the state treasury.

There was some talk of seizing the office furniture of the Speaker of the House, the architect of the violation of rights. The judge told the plaintiffs they could have surplus property instead.

[Poxigah146]

I'm surprised the courts didn't just rule that the state had sovereign immunity.

[John F. Carr]

The finding of liability was based on the precise language of the state constitution regarding initiative petitions: "if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect."

[JoeFromtheBronx]

The update is silly.

The transcript has this bit:

So if you file it by Monday, I am unavailable on Thursday and Friday. I don't think I can read the papers on Monday if you file them on Monday.

When on Monday would they file? What else is she doing that day? How complex were those specific papers? For instance:

There's a lot of paper there. It would be faster if I didn't have 33 different claims to go through on this case alone, let alone the ones on all of the other ones.

Were there 33 different claims in this case?

I think people can be good faith critics of how judges act today but JB is not a good faith critic.

[loki13]

It's hard, because I can imagine someone like Prof. Adler doing the same post in good faith (not that he would, because ... who cares?).

It would just be a brief analysis of why the TRO should not have issued, followed (presumably) by a longer analysis of why this is a very brief speedbump, and that when there is a hearing, there will be no preliminary injunction because of (factors, analysis of complaint).

Maybe a brief mention that ex parte TROs will issue occasionally in situations such as this, but we have a robust system of correction, and that we will be seeing shortly what happens with this action.

JB's posts are basically Breitbart, but with less legal analysis.

[David Nieporent]

I think people can be good faith critics of how judges act today but JB is not a good faith critic.

Or a competent one. There's a reason some of his fellow VC bloggers mock him on Twitter.

[Life of Brian]

I'm sure that any specific examples you might have to share would clearly show you're not exaggerating even one little bit.

[DaveM]

The Left is burning down the house to fix a squeaky door. They truly are desperate.