Over on the Divided Argument substack, Nicholas Bagley and Samuel Bray have a submit, “Sovereign Immunity, Fairness, and the USAID Short-term Restraining Order,” exploring among the procedural and doctrinal wrinkles that divided the justices on this morning’s order in Division of State v. AIDS Vaccine Advocacy Coalition (which I mentioned right here). It is vitally well worth the learn.
Their first commentary highlights why it’s perilous to make sweeping conclusions about as we speak’s order and what it signifies concerning the court docket, the justices, or how pending and potential litigation involving the Trump Administration will unfold.
The Chief Justice’s administrative keep and the Court docket’s denial of the applying had the salutary impact of avoiding the Court docket being pressured to determine—or to tip its hand a couple of determination relating to—some main authorized questions. It will not be good, for instance, for the Court docket to find out the interaction between sovereign immunity, fairness, and the disbursement of federal funds on an utility for a keep of an order implementing a brief restraining order. That emergency posture shouldn’t be conducive to deliberate decisionmaking.
This doesn’t imply that the dissenting justices didn’t have a degree. On the contrary, Bagley and Bray notice that lots of Justice Alito’s factors are nicely taken, or on the very least increase vital considerations. A part of the issue is that it’s not clear how courts ought to deal with a few of these questions within the context of requests for emergency aid. As they conclude the submit: “The problem of those questions confirms the knowledge of not attempting to resolve them on an emergency keep of an order implementing a brief restraining order.”
A number of different factors from Bagley and Bray I believed price highlighting:
One subject on the coronary heart of those numerous requests for emergency orders is what their function is. Is it primarily to protect the efficacy of the court docket’s final remedial choices, or is to speed up the choice of the case? That issues for the way central the deserves must be within the evaluation at every stage of the case.
And:
The jurisdictional combat on the coronary heart of the case—is that this a routine APA swimsuit or is it a declare for “cash damages” beneath the Tucker Act?—will possible show fairly consequential. If it is an APA swimsuit, an order setting apart the funding freeze as to the events might be acceptable, maybe backed up by an injunction if the Trump administration is recalcitrant. The courts have made a follow of getting into preliminary injunctive aid in anticipation of such an consequence (although we doubt that follow is sound). If it is a Tucker Act swimsuit, in distinction, the aid will likely be cash damages down the road, and instant injunctive aid might be off the desk. The eventual decision of the jurisdictional query might, not directly, provide a gauge of the Supreme Court docket’s willingness to police President Trump’s assertion of authority to impound appropriated funds.
There’s extra the place this got here from, so if this is a matter that pursuits you, as they are saying, “learn the entire thing.”
