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A three-judge panel of the D.C. Circuit court of appeals yesterday stayed a federal district court order that had barred President Trump from firing the head of the Office of Special Counsel Hampton Dellinger. The order permits the administration to remove Dellinger from his position. The panel wrote that the appellants had “satisfied the stringent requirements for a stay pending appeal.” (Order.) (Commentary from Jack Goldsmith (Executive Functions), Steve Vladeck (Bluesky), and Jonathan Adler (The Volokh Conspiracy)).
Several commentators have analyzed the Supreme Court’s denial yesterday of the government’s application to vacate a district order that required the government to disburse approximately $2 billion in foreign assistance funds (see yesterday’s Roundup for the details):
Jack Goldsmith argued that the Supreme Court’s actions in the Dellinger and foreign assistance cases “exemplify the Supreme Court temporizing in connection with emergency orders.” (Executive Functions.) Samuel Bray and Nicholas Bagley wrote on the foreign assistance decision, “The Chief Justice’s administrative stay and the Court’s denial of the application had the salutary effect of avoiding the Court being forced to decide—or to tip its hand about a decision regarding—some major legal questions.” (Divided Argument.) Steve Vladeck discussed what the decision directs the district court to do and criticized the dissent. (One First.) And Josh Blackman argued that the ruling makes “no attempt, whatsoever, at a neutral principle.” He wrote that the Court, “by denying the application, … has no power to act.” (The Volokh Conspiracy.)
Judge John McConnell (D.R.I.) on Thursday extended an order prohibiting the Trump administration from withholding from 22 states and the District of Columbia billions of dollars in congressionally approved funds. McConnell wrote, the “Executive’s discretion to impose its own policy preferences on appropriated funds can be exercised only if it is authorized by the congressionally approved appropriations statutes.” (NYT.) (Order.)
Judge Angel Kelley (D.Mass.) granted a nationwide preliminary injunction yesterday blocking the Trump administration from implementing a policy that caps the amount of money research institutions can receive from National Institutes of Health grants for “indirect costs”—utilities, building construction and maintenance, among other things. (Bloomberg.) (Order.)
The Merit Systems Protection Board (MSPB) ordered yesterday that the Department of Agriculture reinstate between 5,000 and 6,000 employees who were fired last month. The fired employees were new to their positions and were on probationary status. The order stays the firing of the employees for 45 days. In the order, the head of the MSPB, Cathy Harris, determined that the Office of Special Counsel, which petitioned for the reinstatements, “has reasonable grounds to believe that the agency committed a prohibited personnel practice.” A federal district court judge on Tuesday reinstated Harris as head of the MSPB after she was fired last month (see yesterday’s Roundup for more on Harris’s status). (NYT.) (Order.)