SCOTUS rules that the government must pay the $2 billion …
… because the district court judge said so.
This is a disturbing ruling:
If you thought the Supreme Court would act to halt the propensity of District Court Judges to overstep their constitutional boundaries by substituting their own policy and political judgments for those of the Executive Branch — as I [Professor Jacobson] did — you would be wrong.
In a ruling that left Justice Alito “stunned,” Chief Justice Roberts and Justice Barrett sided with the three liberals. …
The government decision being challenged was a pause in payment pending a review as to whether the payments were owed and the work had actually been performed. The District Court did not allow that review and ordered everything to be paid — even for services not rendered or for fraud, if that turned out to be the case — with the government left with the empty remedy of trying to recoup payment. Even contractors who were not parties to the case had to be paid, for contracts the court never identified – just a sweeping pay it all order. This represents a policy determination. If contractors believed they were owed money, there is an avenue to assert claims for payment, but not in the District Court.
This represents, according to Professor Jacobson, “an attempt to substitute the political and policy judgments of judges for those of the executive branch.”
Legally, it’s a bit complicated. The District Court judge had issued a temporary restraining order that prevented the government from halting the payments of the two billion dollars. Then SCOTUS had issued a temporary stay on the District Court order, and they are now lifting their own stay. This is the reason:
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. The order heretofore entered by THE CHIEF JUSTICE is vacated.
Justice Alito wrote in a dissent:
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned….
Unfortunately, a majority has now undone that stay. As a result, the Government must apparently pay the $2 billion posthaste—not because the law requires it, but simply because a District Judge so ordered. As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility….
Anyone that thought the change in administration was a panacea for the nation’s ills was sniffing rainbows. Sounded nice but reality hasn’t really set in yet. The bad boys still run things and will fight back against any attempt to cut into the money-making machines.
Hope I’m wrong; doubt I am.
Time will tell; meanwhile, keep your powder dry.
This represents, according to Professor Jacobson, “an attempt to substitute the political and policy judgments of judges for those of the executive branch.”
–neo
I agree.
Ever since Chief Justice Roberts weaseled his way into making the decisive vote for Obamacare, I’ve understood that the Supreme Court’s highest priority is preserving and expanding its own power.
I heartily recommend that you follow Shipwreckedcrew on X and his Substack articles. He’s an ex-prosecutor with 35 years of Federal court experience, has been defending many January 6 defendants. He patiently explains the legal reasoning at each stage of the lower level judges’ lawfare, the Trump DOJ responses, the path for appeals through the courts including to the USSC.
It’s not always appropriate for the Supremes to jump in and overturn some of these overreaching judges just to get to the desired end result. If they do so in one case they set a precedent and will be deluged with activist junior judges carrying out lawfare. Better from the Chief Justice’s standpoint that narrow issues are resolved narrowly, at the lowest levels of courts and courts of appeal. The Supremes need to take on only those cases where the issues and the facts enable them to rule on broad principles that will set the rules for lower courts in an orderly fashion.
It’s best not to get bent out of shape with every twist and turn just because a ruling doesn’t result in your desired outcome immediately. The greater prize may be delayed but more durable and ironclad, when the Supremes are able to set a bright line that applies more broadly to the separation of powers, and lets future disputes be more easily resolved in the lower courts or appeals courts below the Supreme Court level. Frustrating, but better in the long run.
Dan D:
“shipwreckedcrew” is usually pretty good and I’ve linked to him in the past. I agree that SCOTUS must pick and choose. But t some point soon I believe they need to rule on the principle behind all of this.
Amy lost her notes.
Why not just refuse? No one believes the district court judge is on the level.
It doesn’t seem likely that much of the $2 billion was described so specifically in an appropriation by Congress, that the Executive has no discretion at all how or whether to pay it out. It may be hard to wait, but I think we get to that principle eventually.
It’s so early we’re still talking about money spent under the previous Administration which must have had the same power this one has over how and when money was spent.
I remember when Roberts thought 5-4 rulings were a bad thing and that the court should strive for consensus but then that was before the need to control all things Trump took over.
Fine, but does the lower judge say when the funds have to be distributed?
Roberts has made his ruling, now let him enforce it.
It is sad and too bad that Alito’s voice is in the minority.
• 100% agree – both recommendation and your explanation of his approach.
• I’ll add that I tend to read blogs & commentary written by lawyers; however, Ship is a-cut-above when it comes to the analysis you noted.
• A key difference is many of the others just can’t seem leave out their “commentary” when attempting to provide a legal perspective – see Legal Insurrection, Powerline, Althouse, etc.
• And that does not mean I do not wish to read their commentary – except for Althouse – it just means I’d like to see them exercise a little discipline, and not equate their “commentary” with a factual explanation; especially when it concerns the intricacies of the federal courts – see Ship’s specialty.
• Lastly, I also appreciate both the fact that he does not let popular sentiment – especially “for blood” or “right now” – change his approach to attempting to educate those that wish to be educated, and his track record – see Trump indictments/ cases.
Margot Cleveland thread: “2/ Fifth Circuit just entered stay pending appeal giving effect to Trump’s removal of Dellinger!!
Order here: (see link for court order — sdferr)”
https://x.com/ProfMJCleveland/status/1897427974359568816
Margot corrected: not 5th Curcuit, but DC Curcuit
I’d better go read Shipley’s X feed. My question is whether these payments are for entities to which USAID made grants, however foolish or unreasonable we may think them, and which entities then performed to USAID’s specifications. If it’s not outright fraud it may have to be paid. I do think the government should be given the time to determine which are outright fraud. No further commitments for the nonsense going forward is what we can count on.
Oooh look the administrative state (courts) protecting the administrative state. Who’d of thunk it?
Just published by Shipwreckedcrew, exactly what I was wondering.
https://x.com/shipwreckedcrew/status/1897433542805901743
If there is blatant fraud involved, prosecute after payment received and see if the defense lawyer tries to claim something like a judicial pardon ahead of time. Send it all the way back to the Supreme Court just on principle.
@huxley
That certainly appears to be John Roberts’s highest priority, but even as Chief Justice he himself is not ‘the Supreme Court.’
Thankfully.