Please click here to opt in to receive via email the Executive Functions Morning Roundup, brief summaries of news developments and commentary related to executive power delivered to your inbox each weekday morning and once on the weekend.
Federal courts issued two important emergency orders yesterday in connection with challenges to Trump administration actions.
First, the Supreme Court denied the administration’s application to vacate a federal district court injunction that had forced the administration to disburse foreign development assistance funds. The immediate consequence of this ruling is uncertain, as I explain below.
Second, the D.C. Circuit court of appeals stayed a federal district court order that had blocked President Trump’s firing of Office of Special Counsel (OSC) head Hampton Dellinger. (The Supreme Court had previously held an emergency application before it in the same case “in abeyance.”) The immediate consequence of the court of appeals order is that Dellinger is “not the Special Counsel as of now,” as he put it.
These two actions exemplify the Supreme Court temporizing in connection with emergency orders. To temporize is to delay making a decision or offering a view in order to gain time or some other advantage. I think that is what the Court has sought to do in these two cases, and I think the cases can plausibly be viewed as having brought the Court advantage by achieving emergency outcomes it wanted without having to tip its hand prematurely on the merits of the cases.
Yesterday I offered an introductory primer on emergency orders. Today I dive into the weeds to examine the early evidence of temporizing in the Trump 2.0 era. I then explore a bit whether temporizing on the emergency docket is justified.
Temporizing in the USAID Case
Start with the USAID case. The district court on February 13 “entered a temporary restraining order enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds.” The government did not seek emergency relief from that order, but rather from a later one, on February 25, that required the government by midnight the following day “to issue payments for a portion of the paused disbursements.”
Yesterday’s order, on March 5, came in response to the government’s February 26 application to vacate the February 25 order, which the Chief Justice administratively stayed on February 26.
Yesterday’s Supreme Court order was ambiguous. The Court “denied” the administration's application to vacate the district court order. But it also said that since the district court had moved from a temporary restraining order (TRO) to “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 Court temporized here on five dimensions.
First, it administratively stayed the district court order and took a week to address the government’s emergency application—not a terribly long period of time, given Justice Alito’s tart and complex dissent, but not alacritous either.
Second, the Court’s denial of the government’s application is not exactly a rejection of the government’s position overall or an unequivocal win for the plaintiffs. The Court strongly signaled that the district court should address the government’s concerns (stated in its emergency application) about the onerous and unrealistic “payment deadlines” the district court had imposed. If the district court heeds to this directive, as it “should,” an important part of the government's objection to the February 25 order will be addressed.
Third, the February 26 deadline in the challenged February 25 order “has now passed,” as the Supreme Court put it. The government thus may be under no immediate obligation to make payments for a portion of the paused disbursements, as provided by the February 25 order, until the district court “clarif[ies] what obligations the Government must fulfill to ensure compliance with the [February 13] temporary restraining order.” If the government believes it is currently in compliance with the February 13 TRO (as I think it does), it can plausibly seek clarification from the district court before paying any elements of the paused disbursements.
If I am right, then the Chief Justice’s February 26 administrative stay and the Court’s March 5 order together bought more than a week of time and nudged the district court to work out a more reasonable payment schedule with the government—all without requiring the government to make what might have been irresponsibly rushed payments, or granting the government’s application for emergency relief, or formally ordering the district court to do anything.
Fourth, the Court leaves the door ajar to relief down the road for the government, including emergency relief from any new preliminary injunction issued by the district court, or perhaps, at that stage, certiorari before judgment.
Fifth, as Sam Bray and Nicholas Bagley explained, the order “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” in an emergency posture, including the complex questions about “the interplay between sovereign immunity, equity, and the disbursement of federal funds” outlined in Justice Alito’s dissent. (As I explained yesterday, an emergency order often reveals a court’s view about the merits of a case because the likelihood of success on the merits is a dominant factor for emergency relief.)
Temporizing in the Dellinger Case
On February 12, a federal district court entered a TRO that kept Dellinger in office as head of OSC despite his termination by President Trump, until the district court ruled on Dellinger’s motion for a preliminary injunction. On February 16, the government filed an application in the Supreme Court to vacate the district court TRO after the court of appeals dismissed a similar motion. The Court in a February 21 order, after noting jurisdictional difficulties in the government’s application (since it was appealing a TRO), “held in abeyance” the application “until February 26, when the TRO is set to expire.”
The district court extended the TRO until March 1, when it declared Trump’s firing of Dellinger to be illegal and issued a permanent injunction reinstating Dellinger to his position. This order eliminated jurisdictional hurdles to an appeal, and so the government immediately appealed to the D.C. Circuit and a few days later sought a stay of the district court injunction.
Yesterday, a D.C. Circuit panel stayed the injunction. As the court explained, “This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel.” And that is where the matter will rest pending trial in the district court (if there is one) and an appeal to the court of appeals, unless the Supreme Court, if asked, alters the court of appeals’s stay on an emergency basis, which I cannot imagine it will.
Here the Supreme Court’s main temporizing strategy was to hold the original government application in abeyance—that is, to neither grant nor reject the application, and thus to let the matter percolate. Holding an emergency application in abeyance is not unprecedented, but it is unusual.
The Court’s non-decision and the attendant percolation resulted in a jurisdictionally more defensible emergency order by the court of appeals (because it came after a preliminary injunction, not a TRO). That order reached a conclusion—a stay of the district court order—that I strongly suspect a majority of the Supreme Court preferred. And yet the Court did not have to make the decision, did not need to issue an emergency order in a jurisdictionally awkward context, and did not need to tip its hand on the merits.
Why Temporize?
Two decisions do not a pattern make. So I do not want to draw hard conclusions about what the Court has done with its first two Trump 2.0 emergency orders. But I do have the following thoughts.
First, although the government has sought relatively few emergency orders to date, the Court must be thinking about how to deal with a potential onslaught of emergency requests arising from the Trump administration’s torrent of actions that are unprecedented in their mix of volume, novelty, and legal aggression. Should the government start seeking emergency relief more often, as I believe it will, the Court’s more frequent need to decide whether government action should persist or be halted on an interim emergency basis will be a challenge in terms of time, resources, tipping its hand prematurely, and controversy. The Court needs a strategy to manage Trump 2.0 emergency orders.
Second, the Court will be resolving the consequential emergency orders at a time when its authority is somewhat fraught. The Court has been subject to sharp attacks from the left in the last decade due to some of its conservative decisions (e.g. overruling Roe) and ethical controversies. At the same time, the Trump administration has sent mixed signals on whether it will comply with judicial orders. Yet because the Trump administration appears to lack serious internal legal checks and because Congress is out of the accountability game, the Court is also (I recently argued) “the main institution standing between … Trump and lawlessness.”
Third, because of the abbreviated and discretion-filled nature of emergency decisionmaking, the Court will be especially susceptible to charges of “politicization” when it issues emergency orders—especially when it favors the Trump administration, but also when it doesn’t. The general problem is that whether an emergency order is “justified” or not is in the eye of the beholder because it involves “squishy” considerations like irreparable harm and the balance of equities.
This situation might counsel the Court to bend over backwards to be as principled and transparent as emergency orders decisions permit (which is not a lot), including by showing more of its reasoning in deciding emergency order applications and by providing more process and deliberation. Or it might argue for temporizing, when doing so helps the Court achieve what it thinks will be a favorable lower-court emergency decision and helps the Court avoid acting prematurely.
Fourth, the Court has learned over the last decade that strong and frequent emergency interventions invite more and more emergency application requests.
I believe that these four factors, taken together, will very often give the Court a strong incentive to temporize—i.e. to go slow in response to emergency orders applications, to push off decisions, and try to shape the legal landscape and nudge lower courts to make the hard but “right” decisions so that the Supreme Court can keep its powder dry for when it must intervene, either in an emergency posture or on the merits.
Is Temporizing Legitimate?
Temporizing in connection with emergency orders can be seen as a cousin of Alexander Bickel’s passive virtues—decisions not to decide certain issues with finality in the hope of achieving principled decisionmaking overall. It is also subject to Gerald Gunther’s “subtle vices” critique of the passive virtues: that they are themselves unjustifiably unprincipled and perhaps lawless. After all, there are legal formulations for resolving emergency applications, as I discussed in the primer yesterday. These legal factors are open-ended and non-determinant—classic standards, not rules—but they do not include the elements of temporizing described above.
Here we reach a hotly debated issue about emergency orders: Should they be governed by legal principles that facilitate predictable outcomes, or should temporizing, discretion, and prudence reign in this context due to the need for quick decision in a factually unique, substantively premature, procedurally impoverished, and time-pressed context?
Whatever the right normative answer may be, emergency orders do seem to be dominated, for better or worse, by temporizing, discretion, and prudence—especially in high-stakes contexts. Even an innovation hailed as an important step to bring greater principle to emergency orders—Justice Barrett’s suggestion in Does 1-3 v. Mills that the Court should not grant emergency relief except in cases where it would grant certiorari—turns on the entirely discretionary decision whether to grant certiorari.
I do not here defend temporizing over emergency orders. But I do suspect that the middle of the Court that will guide this approach—if that is indeed what is happening—is pleased with the court of appeals’s resolution in the Dellinger matter and at least sanguine about the possibility of a better emergency order outcome than two weeks ago in the USAID case.
Thanks to Richard Re, who might or might not agree with me, for discussion of these issues.