Bonus 174: Playing the Justices for Fools

President Trump's latest emergency application rests on a contrived procedural emergency and a forfeited substantive claim—apparently banking on the view that the Court doesn't mind being played.

Welcome back to the weekly bonus content for “One First.” I usually put the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the (significant) work that goes into putting this newsletter together every week. But I’m making an exception this week (and posting the bonus issue one day early) because I think that the topic is sufficiently important—and the government’s behavior is sufficiently reproachable—to share with a broader audience. That said, I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will nevertheless consider a paid subscription to support posts like this if and when your circumstances permit:

To cut to the chase, I wanted to write about the Trump administration’s latest emergency application to the Supreme Court (its 23rd in its first seven months in office)—in the ongoing litigation over the government’s refusal to spend foreign aid funds that Congress has mandated. (Yes, this application arises from the same two cases that the Supreme Court already dealt with in early March.)

The application is significant not only on its own terms, but because of the new reality it appears to reflect—one in which the Trump administration seems to be structuring at least some of its litigation decisions specifically to take advantage of its expectation that it can receive emergency relief from the Supreme Court. Here, that behavior includes contriving the procedural emergency that the Solicitor General now claims justifies intervention by the justices; downplaying the fact that the government forfeited the substantive claim on which it claims it is likely to succeed on the merits—by not properly raising it below; and misrepresenting what happened in the lower courts by conveniently leaving out any details that might draw the justices’ (or their clerks’) attention to those first two points.

In ordinary times, either of those first two defects would (and should) be fatal to the prospects of receiving emergency relief from the Supreme Court. And yet, the government’s (especially strident) application insists that the real issue here isn’t its behavior, but that of the district court—which has, in its words, “installed itself as supervisor-in-chief of further spending and recissions proposals”—and the en banc D.C. Circuit, which it accuses of all-but deliberately sitting on its hands. As I demonstrate below, these claims are utterly belied by the record—and serve only to deflect attention from the government’s own responsibility for this latest “emergency.”

Given the justices’ dispositions of Trump administration applications over the past six months, it may not be surprising that the government thinks it can get away with this kind of behavior. The harder question is whether, in a case in which the government’s cynical attempt to so obviously manipulate the emergency docket is happening in plain sight, the justices will still indulge it.

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The Foreign Aid Impoundment Litigation: How We Got Here

To help put the government’s application into its full context, I’m going to take a minute to summarize the litigation to date.

The two cases at issue go back to the earliest days of the Trump administration—and, indeed, have already made one trip to the Supreme Court via the emergency docket. At issue in both cases are challenges to the government’s refusal to spend certain foreign aid money that the plaintiffs claim Congress has mandated. The plaintiffs claim that these refusals reflect both procedural and substantive violations of a series of federal statutes and unconstitutional presidential “impoundment” of appropriated funds (here’s my primer from January on impoundment).

After Judge Ali entered a temporary restraining order and separately ordered the government to immediately spend at least some funds that had already been obligated, the government sought emergency relief. Although the Supreme Court effectively granted relief from the requirement that the government immediately spend obligated funds back in March, it otherwise left intact Judge Ali’s (preliminary) conclusions that the government had acted unlawfully (over dissents from Justices Thomas, Alito, Gorsuch, and Kavanaugh)—and sent the case back for further proceedings.

On March 10 (so, 170 days ago), Judge Ali entered a partial preliminary injunction (and wrote a 48-page opinion in support of both the relief he granted and the relief he denied), concluding that the plaintiffs were likely to succeed on at least some of their claims under the Administrative Procedure Act (that the government’s freeze of foreign aid funding was arbitrary and capricious), and that they were likely to succeed on their constitutional claim that the foreign aid funding freeze reflected “a unilateral rescission or deferral of congressionally appropriated funds in violation of Congress’s spending power,” i.e., an unconstitutional impoundment.

The Government’s “Expedited,” but Not “Emergency” Appeal

23 days after Judge Ali entered his preliminary injunction (so, on April 2), the government appealed to the D.C. Circuit. But tellingly, it did not seek a stay pending appeal. Instead, on April 28 (so, 26 days after appealing, and seven weeks after Judge Ali entered his preliminary injunction), it asked the D.C. Circuit to “expedite” its appeal on the ground that, to comply with Judge Ali’s injunction, it would need “to begin obligating and expending funds, potentially irretrievably, before [September 30].”¹ Thus, it asked the D.C. Circuit panel for a ruling by August 15—not because that would be the final decision in the case, but, as a government lawyer stated on the record in a hearing in the district court, “to leave room for additional decision making, potential[ly] for additional review.”

On August 13, a divided three-judge D.C. Circuit panel handed down its ruling—with Judges Henderson and Katsas siding with the Trump administration and vacating the district court’s preliminary injunction. As Judge Pan (who dissented) succinctly summarized the majority opinion, its central holding was “that the grantees do not state a constitutional cause of action and merely allege a statutory violation of the Impoundment Control Act that only the Comptroller General can litigate in federal court.”

The problem with that argument, as Judge Pan’s dissent points out in detail, is that the government never raised it in the district court and didn’t raise it in its opening brief in the D.C. Circuit. To non-lawyers, this may seem like a technicality. But it is a central premise of our legal system that questions that don’t go to the subject-matter jurisdiction of the courts (and these don’t) must be affirmatively litigated by the parties or else they are forfeited. Part of this is to prevent sandbagging—where a party might hold an argument back until the other side has formed their strategy around responding to different claims and/or it is too late for the trial court to address it.

Critically, Judge Henderson’s majority opinion doesn’t dispute that the government failed to properly raise this argument (as she writes with just a touch of understatement, “That oversight is hard to understand.”). Rather, it contrives an (implausible) argument for why the government didn’t really forfeit this argument. We’ll come back to why this matters below; the key for present purposes is that there is a very strong argument that the government is unlikely to prevail on the merits of this appeal solely because of its forfeiture—without even getting to whether the panel majority’s substantive analysis is even correct (which, in my view, it isn’t).

Now for a bit of nerdy but important appellate procedure: Typically, when appellate courts issue a ruling, they do not immediately issue the “mandate” (which means that the ruling does not go immediately into effect). Indeed, some delay in issuance of the mandate is the norm under Rule 41 of the Federal Rules of Appellate Procedure. Part of why that’s so is to give parties time to point out errors in the court’s ruling and/or seek “rehearing” from either the original panel or the full (“en banc”) court of appeals. So even though the D.C. Circuit on August 13 issued a ruling that, once it goes into effect, would vacate Judge Ali’s preliminary injunction, the injunction automatically remains in place until either (1) the mandate issues or (2) the injunction is separately stayed (recall that the government had not sought a stay either when filed its appeal back in April or when it subsequently sought to “expedite” the appeal).

The Post-August 13 Maneuvering

On August 15, a number of the plaintiffs filed both a petition for rehearing by the full D.C. Circuit (which would override the panel decision) and an emergency motion to stay (i.e., indefinitely freeze) issuance of the mandate (and for a temporary “administrative” stay while the full D.C. Circuit considered whether to issue an indefinite stay). The government responded with a cross-motion of its own—to stay the district court’s injunction or, in the alternative, to immediately issue the mandate of the panel decision vacating it (which would wipe the injunction out). The government subsequently told the D.C. Circuit that, if it didn’t rule by Tuesday, August 26, at 10:00 a.m., the Solicitor General would seek further relief from the Supreme Court. And to cover its bases, the government also sought a stay from the district court (again, of an injunction the district court had issued on March 10).

On August 20, the en banc D.C. Circuit denied the plaintiffs’ request for an administrative stay—because the mandate had not yet issued (thanks to the pending petition for rehearing en banc, which automatically freezes the mandate). And at least as of noon ET on Wednesday, August 27, both the petition for rehearing en banc and the government’s “cross-motion” to stay the injunction or immediately issue the mandate are still pending before the full D.C. Circuit—the court of appeals hasn’t ruled on them one way or the other.

This Monday, back in the district court, Judge Ali denied the government’s request for a stay—because “the reasons asserted for a stay conflict with Defendants’ litigation decisions in this case, as well as representations that Defendants made to, and were relied on by, the Court.” Specifically, as Judge Ali pointed out, the schedule under which this litigation is now unfolding is the one that the government proposed in the D.C. Circuit (a panel ruling by August 15), which the government represented on the record would be enough time “to leave room for additional decision making, potential[ly] for additional review.” Thus, as Judge Ali explained, “in a circumstance like this—where a party not only declined to seek a stay pending appeal five months ago but also, in the meantime, proposed that the proceedings unfold in the very way they now object to—it would violate basic notions of fair play to grant the equitable relief requested.” (It’s a short opinion that I’d recommend reading for yourself—especially alongside the government’s emergency application.)

The Government’s Application

When the en banc D.C. Circuit didn’t rule by the government’s requested deadline, the Solicitor General carried through on what the government had already promised—filing an emergency application at the Supreme Court.

The application tells a breathless story of a district court and en banc D.C. Circuit run amok. It urges Chief Justice Roberts to issue an immediate administrative stay, and insists that the full Court rule no later than September 2 (i.e., next Tuesday), never mind the ongoing proceedings in the D.C. Circuit. And it repeatedly implies that the full D.C. Circuit is deliberately trying to run out the clock by not ruling on its motion or the petition for rehearing en banc (even though the briefing on the petition for rehearing en banc concluded only four days ago—i.e., last Saturday).

But what’s truly damning about the government’s latest emergency application is what it doesn’t say: Although it does note that the government had proposed the August 15 deadline in the D.C. Circuit, it doesn’t tell the justices about the government’s representation that the schedule was designed “to leave room for additional decision making, potential[ly] for additional review.” It doesn’t tell the justices that the government declined to seek a stay of the district court’s injunction until after the D.C. Circuit ruled (i.e., nearly six months later). And it doesn’t tell the justices that the central argument it makes on the merits is one the government failed to raise in the district court or in its opening brief in the D.C. Circuit. This last omission is especially telling, since the application purports to summarize both the D.C. Circuit panel’s majority opinion and the dissent, but leaves out both opinions’ discussion of forfeiture. (The application also … selectively … recounts the reasoning Judge Ali provided for denying the stay application on Monday, again, to leave out any of the arguments about the government’s culpability.)²

Thus, if you knew nothing about this case other than what you read from the government’s application, you might very well find it persuasive.

The Government’s Chutzpah

As should be clear by now, the application’s defects ought to be fatal—not just because the Court shouldn’t be rewarding such disingenuous filings by the Solicitor General, but because each of the issues that the application hides or otherwise obfuscates are independent reasons why the government should lose. Just to be clear, the government’s bad faith aside, there are three separate issues here:

First, the fact that the government waited more than five months to seek a stay of the district court’s injunction ought to be a fatal obstacle to obtaining emergency relief from the Supreme Court now. After all, it’s the March 10 injunction that is causing the irreparable harm the government is claiming, not the procedural maneuvering in the D.C. Circuit. Longstanding principles of equitable relief require parties to not sit on their hands. Here, the government tried to run out the clock, and is only complaining now because, having obtained a favorable panel decision that is subject to rehearing by the full D.C. Circuit, it might not be able to.

Second, aside from the general equitable principle that should preclude such a belated request for emergency relief, the timing here (and, thus, the emergency) is specifically of the government’s making. August 15 was the date that the government proposed to the D.C. Circuit, reflecting the government’s own representation that it was sufficient “to leave room for additional decision making, potential[ly] for additional review.” It shouldn’t be controversial that the government should be held to its own representations. At the very least, the government shouldn’t be able to create an emergency by artificially compressing the window that it agreed to provide to intermediate courts to conduct even expedited appellate review. If providing reasonable time for “additional review” required the government to ask the D.C. Circuit panel to rule earlier than August 15, it should’ve said so.

Third, turning to the merits, the government’s forfeiture really ought to matter. It’s not just a general principle of litigation against the federal government that, as Justice Oliver Wendell Holmes famously put it, the government is expected to turn square corners. It’s also the epitome of sandbagging to let the government seek emergency relief on an issue it never presented to the district court and didn’t fully present to the court of appeals. Perhaps the government has a good argument to either excuse its forfeiture or to defend Judge Henderson’s attempt to get around it; what’s perhaps most revealing about the application is that it doesn’t even try to do so—because it doesn’t acknowledge that this was even an issue below.

All of these points would make this application problematic enough in the abstract. But the last two points are evidence of a broader, and more troubling, conclusion—that the government is just not worried about dotting the i’s and crossing the t’s in the lower courts in these cases. Indeed, given some of the litigation behavior and procedural and substantive arguments that the Supreme Court has already abided in granting emergency relief to the Trump administration, that mentality may even be understandable on the government’s part.

But there’s an important difference, in my view, between the Court incidentally (and perhaps even unintentionally) vindicating problematic behavior by the Justice Department and the Court vindicating it in a context in which the government’s manipulative behavior is (or at least should be) visible for all to see. For the Court to grant an emergency application that takes such license with the facts and the law; that affirmatively fails to acknowledge so many key developments in the lower courts; and that refuses to take responsibility for the government’s own role in creating this particular “emergency” and not preserving its central argument on the merits; is for the Court to let the government lead it by the nose. Worse than that, it would send the undesirable (but unequivocal) message to the government (and the lower courts) that what happens in the lower courts in these cases is of increasingly little import.

One can have a wide range of views about how the justices should be handling emergency applications and still think they shouldn’t let themselves (to say nothing of their colleagues on the district courts and courts of appeals) get played for fools.

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We’ll be back Monday (if not sooner) with our regular coverage of the Supreme Court. Until then, have a great weekend, all.

1. It’s worth pointing out that it’s not clear whether the government’s claim about September 30 is even true. As Judge Ali noted at the end of his most recent ruling, there is “[c]ircuit authority discussing a court’s equitable power to ‘simply suspend the operation of a lapse provision and extend the term of already existing budget authority.’ The Court has left open, and remains open to, extending the relevant expiration dates in order to accommodate Defendants’ needs and ensure that compliance remains feasible.”

2. The application also doesn’t tell the justices that, in its opposition to rehearing en banc in the D.C. Circuit, the government (or, at least, the Appellate Staff of the Civil Division) has disavowed at least one potential implication of Judge Henderson’s panel opinion—to wit, whether it forecloses any claim under the Administrative Procedure Act challenging the government’s withholding of appropriated funds. (Here’s the relevant passage of the government’s opposition.) To be clear, I don’t think anything in the application is inconsistent with that passage in the government’s opposition to rehearing en banc (hence why this is only a footnote). But it’s telling that the brief written by “Civil Appellate” lawyers is significantly more … measured … in its endorsement of Judge Henderson’s analysis.

Indeed, here at least, as my friend and Georgetown Law colleague Marty Lederman has pointed out, there’s an especially good reason why the government didn’t make its statutory preclusion argument earlier—because it would turn the Impoundment Control Act of 1974 on its head, reading a statute designed to carefully circumscribe the President’s authority to unilaterally rescind congressional appropriations to effectively foreclose almost all judicial review of any presidential actions vis-a-vis impoundment.