If The Courts Want Their Orders To Be Followed, The Courts Must Issue Orders That Can Be Followed

Last weekend, I spoke on a panel about executive power. The other panelists ranged in positions from “We are in a constitutional crisis” to “We are almost in a constitutional crisis.” My position, perhaps unsurprisingly, was that everyone needed to take a deep breath. I’ve seen no evidence, at all, that the executive branch is attempting to flagrantly violate any federal court order. To the contrary, the Trump Administration has taken every possible step to appeal adverse rulings, and avoid violating orders.

But the government can only do so much when judges go too far. Case in point is the litigation over USAID funding. On Tuesday, a district court judge ordered the Trump Administration to pay nearly $2 billion by 11:59 p.m. on Wednesday evening. The government insisted that it would be impossible to pay all of those amounts. It was not as simple as turning as light switch on. Yet, the District Court refused to stay its TRO.

The government sought an emergency stay from the D.C. Circuit by 1:00 p.m. on Wednesday. But the D.C. Circuit did not rule on the motion by that time. So the Solicitor General filed an emergency application for an administrative stay with Circuit Justice Roberts. Roberts granted that motion on his own before the midnight deadline. At least for the near future, the government will not be obligated to disburse the full amount.

After the SG filed the application, the D.C. Circuit denied the request for an administrative stay. (I am not certain what time the order was issued.) The court stated, yet again, that it will not entertain jurisdiction of an appeal from a TRO. Obviously, the Chief Justice disagreed.

Also on Wednesday, confirmation hearings were held for several nominees to the Trump Administration, including Solicitor General Nominee John Sauer. They were asked whether they would always follow a court order. I tell my students to never answer an “always” question. It is impossible to predict all of the circumstances that may arise. What if a federal judge ordered the President to immediately reinstate the chairman of the Joint Chief of Staffs, and refused to stay the ruling? Would that order have to be immediately complied with? It is better to hedge. And I think the nominees at the hearing hedged appropriately.

In the unlikely event that I were ever to appear before the Senate, I would answer the question a bit more directly: if the Courts want their orders to be followed, the Courts must issue orders that can be followed. District Court judges cannot issue global, unappealable administrative stays and TROs against the executive branch, forcing it to spend money on foreign policy, and then refuse to stay the ruling to permit a timely appeal.

Every action has an equal and opposite reaction. Thankfully, Chief Justice Roberts stepped in with the solo administrative stay. But in some other case, perhaps coming from the First, Second, or Ninth Circuits, the Circuit Justices may not be as expeditious.

Federal judges are walking on thin ice by issuing unappealable TROs and failing to stay their rulings.

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