Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Measles outbreaks, navigable rivers, and a winey circuit split.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
This week on the Short Circuit podcast: the panel looks at the Sixth Circuit's look at a Cincinnati councilman's bribery conviction.
though she had been temporarily allowed to do so at first.
From yesterday's decision in Doe v. Combs by Judge Lewis Liman (S.D.N.Y.) (for more on the split among the Doe v. Combs judges on this, see this post; for more on the split among federal judges generally on pseudonymity in lawsuits alleging sexual assault, see PDF pp. 78-85 of this article):
Plaintiff alleges that nearly 30 years ago, in or around June 1995, she was raped by Combs at a party at Elks Plaza in New York City…. Federal Rule of Civil Procedure 10(a) requires that the title of a complaint name all the parties to a litigation. This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." "[W]hen determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." "The people have a right to know who is using their courts." … The presumption is that a plaintiff will disclose her identity. "[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting that presumption." …
[One] factor, whether the litigation involves matters of a sensitive or personal nature, "favors the plaintiff's use of a pseudonym." … "Allegations of sexual assault are 'paradigmatic example[s]' of highly sensitive and personal claims'" …. "However, allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." … "A claim by an adult plaintiff to have been the victim of sexual abuse and to have suffered physical or psychological damage as a result, accompanied by sufficient facts to support that claim, is not enough to entitle a plaintiff to proceed anonymously. Were it otherwise, virtually all claims of adult sexual assaults would ipso facto proceed anonymously." …
The states claim that the terminations "impeded the ability of many Plaintiff states to support affected employees," thereby creating an Article III injury.
Yesterday, a new complaint was filed challenging the firing of probationary employees. The plaintiffs in this case, however, were not the fired employees. They could challenge their removal through the usual civil service process, and not in federal court. But here, twenty states sued almost every department in the federal government.
What is the basis for Article III standing? Are the states suing parens patriae on behalf of their residents who work for the federal government? No, the states have articulated some sort of pocketbook injury:
This campaign is harming Plaintiff States, too. In addition to the informational and procedural injuries resulting from the deprivation of notice to which they were entitled, the lack of notice has impeded the ability of many Plaintiff States to support affected employees and thereby mitigate the financial and other impacts on state services. In fact, pursuant to federal statutory requirements, Plaintiff States operate rapid response teams that provide immediate services and resources to workers subject to mass layoffs. These services include job placement and job training services as well as connections to social services like unemployment insurance and health insurance. Because of Defendants' failure to adhere to the RIF notice procedures, many Plaintiff States have had to scramble and expend additional resources to identify even which agencies have conducted layoffs and which affected employees require support.
As best as I can tell, this is even more attenuated than anything Texas asserted. If this ground of standing is acceptable, than nearly any action the federal government takes, with regard to federal employees, can be challenged in federal court.
When I write something controversial, I expect blowback. My recent posts about Justice Barrett were no exception. I received the usual smattering of criticisms, telling me that I have no business being a law professor and that I am an embarrassment. Another burner email account urged me to kill myself by swallowing cyanide. But one charge, though predictable, was especially misguided: that I write what I write as part of some "audition" for some other position.
This charge is not limited to me. For example, after Judge Ho's interview with me about birthright citizenship and invasion, there was a torrent of press about how Judge Ho was reversing his position as part of an audition for the Supreme Court. The headlines followed the same template: Judge James Ho Kicks Off The Auditions For Trump's Next Supreme Court Pick; Judge James Ho Uses Fifth Circuit Decision To Audition For Supreme Court. Again; James Ho's Post-Election Remarks Fuel Supreme Court Speculation; This Is What Happens When Judges Audition for Trump's Supreme Court; and so on.
There are several problems with the "audition" charge.
First, the "audition" claim primarily works to resolve some cognitive dissonance. I would like to think that even the most vigorous critics would acknowledge that I, and Judge Ho, have some intellectual acumen. We aren't idiots. In other words, the things that we write are not based on poor analytical reasoning or lack of legal rigor. Rather, the critics charge that we write what we write in spite of our intelligence. They can't possibly agree with what they write. In other words, because no intelligent person could possibly believe what Ho and Blackman think, they could only reach that conclusion for ulterior motives--namely, an audition. At bottom, this is a charge of bad faith: that we write what we write not because we think it is the right legal outcome, but that we are using our platforms to seek some higher office. Thus, the "audition" claim settles that cognitive dissonance. There is also Occam's Razor: the most likely explanation why we write what we write is that we actually believe what we write.
Second, the "audition" claim is irrefutable. Once a person is labelled as an auditioner, everything they do will be seen as an attempt to audition. If they act in a moderate fashion, they are doing so to avoid drawing attention, and helping their candidacy. If they act in a radical fashion, they are doing so to draw attention, and help their candidacy. Auditioners are trapped in a vicious cycle. (More on that below.)
Third, I suspect nearly everyone is guilty of auditioning at some point in their careers. Every student who develops a relationship with a professor does so knowing that professor can serve as a reference. That isn't to say students are behaving in some poor fashion by developing that relationship, but the consequences of that decision are foreseeable. Every junior associate who seeks to move up in a law firm will constantly be auditioning--either by laying low or standing out, or a combination thereof. The human condition is to rise. What makes charges against people like me or Judge Ho more salient is that we write publicly. Most of the things people do to audition are hidden to the world. But every word I write is read, scrutinized, and (invariably) twisted out of context. (One person who sent me an irate email about ACB apologized after reading what I had actually written.) The fact that everyone auditions demonstrates why this charge is so common. As a general matter, people project onto others the flaws they see in themselves. If you accuse me of auditioning, you can be pretty sure this is something that you have done in the past. Think carefully.
So how do I respond to the charge of auditioning? As I noted in Point 2 above, the claim cannot be refuted. Indeed, critics will likely see this denial of auditioning as further proof that I am auditioning. I can't win. But I'll still try.
No one tells me what to write. I do not look at social media, so I do not know what other people are writing. I write about the things that I feel may not be otherwise discussed. I write what I believe to be true. And I do not write what I do in the hopes that it may lead to future employment. I am a tenured professor, and hold an endowed chair, at a law school that I love. I treasure my colleagues, and look forward every day to working with our dedicated students. We are accomplishing some great things at the South Texas College of Law Houston, which I hope to talk about in due course.
To be sure, early in my career I thought I would be happier by transferring to a "higher ranked" school. Lots of elites told me that I would never get ahead at South Texas! I applied to more transfers than I can count, but due to a host of factors (ideological bias most prominently) none of those moves worked out. Yet, I long ago realized that the grass would not be greener, and I am blessed to be where I am. I now get feelers from other schools, which I promptly decline. The hiring chairs are shocked that I wouldn't even consider the move, or even a visit. I reply that I am quite content where I am. At some level, I think they are jealous. The truth is, I don't need the approval of some higher-ranked school to improve my value. The elites were wrong.
Beyond academia, by any objective measure, I do not think my record makes me a viable judicial candidate. I've criticized and attacked more people than I can count. And I've taken legal positions in my scholarship, and in litigation, that would put me far outside the legal "mainstream." As an amicus, I told a federal judge that Morrison v. Olson should be overruled! You just don't do those sorts of things if you want to get ahead! I've done the exact opposite of what the three Trump appointees did prior to their elevation. If one were to be auditioning, they would follow the paths of least resistance that past successful nominees traveled. Moreover, if one wants to become a judge, government service would be useful. But I haven't sought any position in the administration, in part, because I think I can do far more for the constitutional rule of law in my current station, and also I love what I do.
All of these things are true. But none of this will not assuage anyone. Critics will say this is but an elaborate ruse to increase my chance of some higher office. Like I said, I cannot win. It's the audition trap.
At least sometimes, yes.
I'm not an expert on immigration law, but it appears that US law prohibits entry for foreigners who support designated Foreign Terrorist Organizations, such as Hamas. This in turn leads to the question of whether foreign students who have already been admitted can have their visas revoked (or not renewed) for supporting Hamas while in the US, as the Trump administration has announced plans to do. This question was the subject of Eugene's very interesting post yesterday about the ACLU's letter on the matter.
One thing that occurred to me is that it's clear that visas *can* be revoked for actions that involve the exercise of constitutional rights, for which Americans could not be punished. While the Supreme Court's jurisprudence on economic rights is quite forgiving of government regulation, assumedly the Court would not permit the government to enforce a law prohibiting university students from working in any off-campus job without special authorization. And yet, the US government does enforce such a rule against foreign students, and also limits them to working on-campus twenty hours a week while school is in session. So while this in itself does not resolve the First Amendment issue regarding supporting Hamas, it does show that foreign visa holders can have their visa status revoked for engaging in activities for which Americans could not be punished.
As an aside, it's worth noting that the ACLU's letter attempts to obscure this distinction by referring to foreigners lawfully present in the US on students visas as "immigrant students." They are not, in fact, "immigrants" are not here on immigrant visas, and while many (but hardly all) foreign students find a way to stay in the US, student visas are not intended to provide a means of permanent immigration to the US.
On another point, I disagree with Eugene (rare for me) that deporting Hamas supporters is bad policy "because chilling the speech of lawful visitors to the U.S. does interfere with the marketplace of ideas for Americans." Foreign students are here as visitors to study, not to be members of the American polity. That doesn't mean that we should prohibit them from expressing their opinions, but, e.g., holding protests in favor of an enemy country during wartime, or, more controversially perhaps, prohibiting foreign students from using their status as such to try to influence American public opinion on behalf of organizations that Congress has sanctioned as enemy terrorist organizations, strikes me as perfectly reasonable.
No? Then how can government refuse to hire Georgetown alumni, so long as Georgetown "teach[es] and promote[s] DEI"?
Edward R. Martin Jr., the acting head federal prosecutor in D.C., wrote this letter to the dean of Georgetown law school Feb. 17 (though it apparently was re-sent Monday, and the Georgetown dean responded yesterday):
It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions:
First, have you eliminated all DEI from your school and its curriculum?
Second, if DEI is found in your courses or teaching in any way, will you move swiftly to remove it?
At this time, you should know that no applicant for our fellows program, our summer internship, or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered.
Now let's imagine, as a thought experiment that, a California high-level government official (there are plenty of deep Blue officials in the country as well as deep Red ones)—call him Drawde Nitram—wrote a similar letter to the President of Notre Dame:
It has come to my attention reliably that Notre Dame continues to teach and promote anti-abortion views. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions:
in prosecution for bomb hoax at church; but spray-painting "the stupid Jew" in the storage locker isn't relevant enough, and thus isn't admissible. (Both the painted items were in defendant's native Kurdish.)
From U.S. v. Salah, decided Tuesday by Judge Dena Coggins (E.D. Cal.):
Defendant is charged in the superseding indictment with the following two counts: (1) violating 18 U.S.C. § 1038(a)(1)(A) - False Information and Hoax, by "knowingly affix[ing] a backpack to a toilet in the restroom of a church in Roseville, California with the intent to convey the false and misleading information that the backpack contained a bomb"; and (2) violating 18 U.S.C. 247(a)(2) – Obstruction of Persons in the Free Exercise of Religious Beliefs, by "knowingly affix[ing] a backpack to a toilet in the restroom of that church in order to convey a bomb threat and thereby obstruct the church's congregants in the enjoyment of their free exercise of religious beliefs."
Defendant is charged with the following conduct:
On November 12, 2023, the Defendant entered a Christian church in Roseville, California, during the 9:00 am Sunday service. The Defendant, wearing a black backpack, walked to the men's bathroom where he tied the backpack to a toilet and then left the church. When security staff spotted the backpack, they believed it to be a bomb and called 911. The backpack was eventually removed and opened and found to contain a pillow. Church security camera footage shows that the Defendant had entered and left the church and visited this same bathroom an additional time—without the backpack—earlier that same morning. Street camera footage further shows that the Defendant had driven to the church the morning before the incident, parked in the parking lot for roughly 17 minutes, never leaving his car, and then left.
The Government contends that Defendant committed the charged offenses as a part of a broader plan and attempt to bomb and terrorize Christian churches. [Details omitted. -EV]
Search warrant returns from the Defendant's YouTube account revealed that the Defendant had searched "infidels dying" and had watched YouTube videos about the Boston Marathon bombing, which was carried out with IEDs concealed in backpacks. The family who purchased the Defendant's Glendale, Arizona, home told investigators that the Defendant had made statements expressing animus against Christianity and the United States….
The long decision (over 7500 words) dealt with the defendant's requests to block the government from introducing various kinds of evidence; here's an excerpt focused on the evidence related to Salah's ideology:
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 . . . Read More
3/7/1965: Civil rights marchers are attacked by the police in Selma, Alabama. The event would become known as "Bloody Sunday."
From the Providence Gazette, May 5, 1770; recall that back then an article published in one newspaper would often be reprinted verbatim in others as well. For those having trouble reading the newspaper image, here's the text (paragraph breaks added):
The Supreme Court will not have to weigh in on removal limitations at the Office of Special Counsel, but it could still have to consider those for the National Labor Relations Board.
Fewer than twenty-four hours after the U.S. Court of Appeals for the D.C. Circuit granted the Trump Administrations request for a stay in Dellinger v. Bessent, Special Counsel Hampton Dellinger has dropped his suit challenging President Trump's removal of him from his office. But this is hardly the end of lawsuits seeking to clarify the scope of the President's removal power. Indeed, as Dellinger disappears, a clear challenge to Humphrey's Executor is coming into focus.
Earlier today, Judge Beryl Howell ruled against the Trump Administration in Wilcox v. Trump, holding that the President cannot remove Gwynne Wilcox from her position as Chair of the National Labor Relations Board without cause. Relying squarely on Humphrey's Executor, Judge Howell concluded that the removal limitations contained in the National Labor Relations Act are constitutional and that she must be reinstated. An appeal is sure to follow.
Swapping Dellinger for Wilcox paints a clearer target on the Humphrey's Executor precedent. In Dellinger, the Supreme Court could have ruled for or against the president without directly challenging Humphrey's. The Court could have sustained the removal on the grounds that the OSC, like the CFPB, is a single-headed agency within the executive branch. Alternatively it could have ruled against Trump on the grounds that the Special Counsel is an inferior officer under cases such as Morrison v. Olson and United States v. Perkins.
Unlike Dellinger, Wilcox places the focus directly on Humphrey's Executor. This is because it is difficult to distinguish the NLRB from the Federal Trade Commission. Both are multi-member agencies with the authority to promulgate regulations and adjudicate. While there is an argument that neither is much like the circa-1935 FTC the Court considered in Humphrey's, it is hard to see how the Court could sustain removal of Wilcox without implicating other purportedly independent regulatory agencies, and this would take Humphrey's along with it unelss the Court were to try and limit that case to its facts.
From ACLU's Mar. 4 Open Letter to U.S. College and University Presidents:
This letter is prompted by two Executive Orders—Executive Order 14161, titled "Protecting the United States from Foreign Terrorists and other National Security and Public Safety Threats," signed on January 20, 2025, and Executive Order 14188, titled "Additional Measures to Combat Anti-Semitism," signed on January 29, 20252—and related communications from the White House.
Executive Order 14161 states that it is the United States' policy to "protect its citizens" from noncitizens who "espouse hateful ideology," and to ensure that noncitizens "do not bear hostile attitudes toward [America's] citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security." The Order directs the Secretary of State to "[r]ecommend any actions necessary to protect the American people from" noncitizens who, among other things, "preach or call for … the overthrow or replacement of the culture on which our constitutional Republic stands."
Executive Order 14188 requests from the Attorney General "an inventory and analysis of all court cases … involving institutions of higher education alleging civil-rights violations related to or arising from post-October 7, 2023 campus anti-Semitism" and directs the Secretaries of State, Education, and Homeland Security to recommend ways to "familiariz[e] institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities" by noncitizen students and staff and ensure that such reports lead "to investigations and, if warranted, actions to remove such aliens." In a fact sheet explaining Executive Order 14188, the White House described the Order as "forceful and unprecedented," made clear its purpose of targeting "leftist, anti-American colleges and universities," and described it as a "promise" to "quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before." …
In combination, these orders, the accompanying fact sheet, and other communications from the Trump Administration are intended to enlist university officials in censoring and punishing non-citizen scholars and students for their speech and scholarship. As you well know, this would intrude on academic freedom and equal access to education….
Written by Georgetown Prof. Jason Brennan.
The Stanford Encyclopedia of Philosophy has published an updated and expanded version of its entry on "The Ethics and Rationality of Voting." It is authored by Georgetown Prof. Jason Brennan, a leading expert on democratic theory. Here is his summary of the issues covered:
This entry focuses on six major questions concerning the rationality and morality of voting:
- Is it rational for an individual citizen to vote?
- Is there a moral duty to vote?
- Are there moral obligations regarding how citizens vote?
- Is it justifiable for governments to compel citizens to vote?
- Is it permissible to buy, trade, and sell votes?
- Who ought to have the right to vote, and should every citizen have an equal vote?
The article is a great summary of debates over these issues, and review of relevant literature. To me, it is striking how much of the debate over all six issues turns at least in part on the problem of voter ignorance. For example, whether and to what extent people have a duty to vote depends in significant part on whether they can do so in an informed manner. Similarly, many current and proposed limitations on voting rights are justified by political knowledge considerations (e.g. - this is the standard rationale for barring children, and for requiring immigrants to pass a test of political knowledge to become citizens - one most native-born citizens would fail if they had to take it without studying.
I have long argued that voter ignorance is a major challenge for democracy and democratic theory, and recent events indicate the problem is even more severe than I previously thought. There is no easy and quick solution. But I I assess a range of possible options in a recent book chapter on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," and in my book Democracy and Political Ignorance.
From the motion for a TRO and preliminary injunction in Texas A&M Queer Empowerment Council v. Mahomes, just filed yesterday by the Foundation for Individual Rights and Expression (JT Morris, Adam Steinbaugh & Jeffrey Zeman):
For years, Plaintiff Queer Empowerment Council has exercised its unquestionable First Amendment right to organize, fund, and host an annual drag show, Draggieland, in venues open for student performances at Texas A&M University–College Station. The recognized student group has been preparing to host Draggieland again at the Rudder Theatre on Texas A&M's campus on the evening of March 27, 2025. Campus staff readily approved the group's reservation months ago.
But on February 28, the Texas A&M System Board of Regents took aim at Draggieland, passing a resolution banning drag shows from campus venues ("Drag Ban"). The Regents left no doubt about their motives, insisting that drag performance "promote[s] gender ideology" and "demeans women." …
Texas A&M University opens performance and event venues in its Rudder Theatre Complex for use by recognized student organizations. These include the Rudder Theatre, one of the venues inside the Rudder Theatre Complex. These venues supplement the classrooms on campus, providing students with spaces to present their own artistic, cultural, and political events—where students can "gain exposure to diverse political thoughts and viewpoints different from their own." Tracking its "Expressive Activity on Campus" policy, the University provides content-neutral regulations for using the Rudder Theatre, And it places no limit on content or subject matter. In fact, the University holds Rudder Theatre out as suitable for "events such as Broadway productions, concerts, variety shows, movies, lectures, conferences, commencement ceremonies, and recitals."
Past and upcoming events in the Rudder Theatre Complex venues include performances of the Broadway musicals Chicago and Hadestown, each employing "mature themes," and The Cher Show, featuring women in risqué costumes. Students also use the Rudder Theatre to hold an annual "Miss Black & Gold" women's pageant. Students and community members seeking entertainment can attend concerts (whether by a jazz ensemble, South Korean pop group, or Brazilian pianist), musical theatre (including student productions of Swan Lake and Oklahoma!), or comedy shows. And student organizations use it to host religious and political meetings, like an appearance by commentator Ben Shapiro, who denounced "transgressivism" by the LGBTQ+ community during his speech.
I think FIRE is generally quite right here. Once the university has broadly opened the theater for student expression, it can't then exclude presentations—whether drag performances or Ben Shapiro speeches—because of their viewpoint. And I agree that banning drag because it "promote[s] gender ideology" and supposedly "demeans women" is a viewpoint-based exclusion. (Theatrical performances have long been recognized as a form of expression that's as protected by the First Amendment as is a speech.)
Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution, rather than constitutional adjudication.
We often think of the Supreme Court as the apex institution. The Constitution called for the creation of the Supreme Court, but inferior courts were left to Congress's discretion. From early on in the Republic, it was understood that the Supreme Court, and not the lower courts, would have the final say on matters of national importance. Justice Jackson remarked "We are not final because we are infallible, but we are infallible only because we are final."
Yet, in recent weeks, there has been a change: District Court judges are in charge. In case after case, federal district court judges have issued a series of non-appealable orders, whether styled as "administrative stays" or temporary restraining orders. Courts of appeals have then declined to disturb those rulings, finding that TROs can only be challenged through mandamus, and administrative stays are unappealable altogether. At that point, the federal government is forced to run to the Supreme Court seeking emergency relief. And what has the Supreme Court done? They have kicked the issue back down to the lower court, hoping that someone else makes the tough decisions. Who is running the show here?
Jack Goldsmith calls these tactics "temporizing." That is, the Supreme Court is simply trying to bide its time to find other ways of resolving the issues. That may be right in the short run, but I think we are witnessing an inversion of Article III. The Supreme Court is no longer Supreme. Rather, the federal government is now subject to inferior court supremacy. Lower court judges are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.
At this point, Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution. They are crafting these compromises to settle conflicts between the executive branch and the lower courts. They are avoiding important and foundational constitutional questions. Perhaps these delays can be chalked up to avoiding a "merits peek" on the emergency docket, but these are urgent constitutional issues that will not benefit from percolation. The Chief and Justice Barrett have been reduced to mere mediators. They are so focused on avoiding "red" or "blue" rulings and making them "purple," that they are not actually deciding the cases before them. Indeed, I am now more convinced the USAID case was an advisory opinion.
When I write that Justices should resign, I am not being a polemicist. I think they have lost their way as judges: decide the cases and let the political chips fall where they may.
3/6/1857: Dred Scott v. Sandford decided.
The lower courts, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy cannot stand.
In recent terms, several Justices have attempted to sketch standards for granting relief on the shadow docket. In Does v. Mills (2021), Justice Barrett and Kavanaugh focused on cert-worthiness as an important factor. But in Labrador v. Poe (2024), Justices Kavanaugh and Barrett focused on likelihood of success on the merits. These two tests are very much in tension. Department of States v. AIDS Vaccine Advocacy Coalition illustrates this tension.
In this dispute, the Trump Administration attempted to block the payment of certain foreign development assistance funds. The procedural posture of the case is complex. A federal district court issued a Temporary Restraining Order, which was in effect a mandatory injunction: the State Department had to pay out approximately $2 billion. On February 25, the district court ordered the government to pay funds for work that was already completed by February 26 at 11:59 p.m. Shortly before that deadline, Circuit Justice Roberts entered an administrative stay of the February 25 order. Roberts then referred the government's application to the full Court.
The application sat pending for seven days. On March 5, the Court vacated the Chief Justice's administrative stay. In other words, the Court denied the government's request for an administrative stay. The vote was 5-4. Chief Justice Roberts, and Justices Sotomayor, Kagan, Barrett and Jackson, were in the majority. Justice Alito dissented, joined by Justices Thomas, Gorsuch and Kavanaugh.
The Court offered only one sentence of reasoning to explain its actions:
Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.
This order took me some time to sort through.
First, as a general matter, if the Court vacates an administrative stay, the lower court order goes into effect immediately. The District Court order required the payment of these funds by February 26. That order went into effect as soon as the stay was vacated. The Court says that the "the deadline in the challenged order has now passed." That might be true, but it is irrelevant. If a court orders you to do something on Monday, and it is now Wednesday, it is true that the deadline has passed, but it also means that you are now in violation of a court order and can be held in contempt. An order doesn't cease to be in effect when the deadline passes. The order remains in effect unless an appellate court says otherwise. And the Supreme Court ultimately let the order go into effect. Sort of. The Court's one sentence of reasoning makes little sense.
Second, if the February 25 order is now in effect, why does the government not have to make the payments immediately? Because the Court said "the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order . . . ." In other words, the Supreme Court gave the District Court an assignment: the lower court should issue some sort of clarifying order about what funds are due. This order, if I can even call it an order, is perplexing. The Court denied the government's application. How can the Court grant any relief if it denied the government's application? The Supreme Court lacks any sort of free-floating, supervisory power over the lower courts. If it grants an application, under the All Writs Act, the Court can give instructions of how the lower court should proceed. But by denying the application, the Court has no power to act. This order is in keeping with Justice Barrett's opinion in San Francisco v. EPA, where she purported to dissent in part, but in fact dissented outright. The Court is engaging in shenanigans with how it describes its appellate jurisdiction.
Third, given that the Court denied the application, any discussion of the merits would be an advisory opinion. Yet the Court strongly hints that the lower court was wrong on the merits. "Clarifying" the obligations of the government is a nice way of saying the prior ruling was not quite clear enough. If the order against the government was insufficiently clear, the remedy would be to vacate the lower court opinion with instructions to clarify. (Then again, the Supreme Court "clarified" Bruen in Rahimi by partially overruling it, so words really have no meaning on the Roberts Court.) But the Supreme Court asked the District Court to clarify its ruling, without ordering it to do so. The Supreme Court cannot make suggestions. It can only issue orders. Again, these are shenanigans, designed to direct the lower court without actually granting the government's application.
I struggle with this ruling because there is no attempt, whatsoever, at a neutral principle. At this point, Chief Justice Roberts and Justice Barrett are just bailing out a sinking ship, trying to stay afloat long enough to avoid the next iceberg.
Justice Alito's dissent is one for the ages. When the current emergency docket madness is over--and it will come to an end sooner or later--we will look at Justice Alito's opinion as a turning point.
Justice Alito carefully walks through the standards for granting a stay--and those standards are amply satisfied.
First, there are very strong arguments that the Government will prevail on sovereign immunity grounds. Plaintiffs cannot simply sue the United States in federal court to seek payment of a contract. The Court of Federal Claims has specialized jurisdiction for these sorts of claims. Moreover, the District Court's order was palpably over-broad. The majority acknowledged that the lower court's edict should be "clarified." Again, an order that is valid does not need to be "clarified." All of the Justices, therefore, agreed that the District Court issued a ruling that likely would not be upheld on the merits. The "likelihood of success" prong is satisfied. So we do get a merits peek, even if the majority is playing peek-a-boo.
Second, the government has squarely shown that is likely to suffer irreparable harm. If the plaintiffs ultimately prevail, the government can always pay out the amounts owed, perhaps with interest. But once the government pays out the $2 billion, recovering that full amount will be nearly impossible. The equities here scream for a temporary stay.
Third, in a footnote, Justice Alito discussed Justice Barrett's Does v. Mills concurrence:
To the extent that likelihood of certiorari is a relevant factor, John Does 1–3 v. Mills, 595 U. S ___, ___ (2021) (BARRETT, J., concurring in the denial of application for injunctive relief) (slip op., at 1), it is met here.
Do you know why this standard is met? Because four justices would grant that stay. It takes four votes to grant cert. By definition, this case is cert-worthy. In Does v. Mills, there were three votes to grant the injunction. Justice Barrett could say the case was not cert-worthy because she did not vote to grant cert. But it was not hard to predict a 5-4 case on the emergency docket. Barrett's standard was always circular. In the USAID Case, where there are four votes to review, the problems with Barrett's standard becomes apparent.
From my perspective, the Court denied the stay only because Justice Barrett was willing to go along with the Chief Justice. Justice Barrett has signaled her discomfort with administrative stays before. But, she has not articulated any reason why relief was not appropriate here. Thus, there is an asymmetry. District Courts are issuing administrative stays of executive actions, appellate courts refuse to grant administrative stays of lower court rulings, and the Supreme Court simply sits on the sidelines.
The lower court, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy, as I call it, cannot stand. More on that topic in another post.
For now, President Trump has removed Hampton Dellinger as head of the Office of Special Counsel.
The U.S. Court of Appeals for the District of Columbia Circuit has granted the Trump Administration's emergency motion for a stay pending appeal in Dellinger v. Bessent, the case challenging President Trump's removal of Hampton Dellinger as the Special Counsel of the Office of Special Counsel. As the order notes:
This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel. Appellants have satisfied the stringent requirements for a stay pending appeal.
Earlier this month, a district court held that Dellinger's removal was unlawful, and the statutory provisions limiting removal were constitutional. I discussed that ruling here. This order suggests the D.C. Circuit may be skeptical of the lower court's conclusions (or perhaps just that the D.C. Circuit believes the justices will be).
The D.C. Circuit order was unanimous. The judges participating were Henderson, Millett, and Walker. The panel also ordered the case expedited, with briefing to conclude by April 11 and oral argument to be held "on the first appropriate date following the completion of briefing."
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