Who Needs Circuit Courts? – LexBlog
Does the Impoundment Control Act get your heart pumping? Not likely, and yet another ruling without rational on the Supreme Court’s shadow docket makes it a far bigger deal than one might imagine. At issue was $4 billion that Congress allocated to foreign aid, but that Trump decided not to spend because it didn’t fit his agenda. The funds were impounded, pursuant to 2 USC Chapter 17B, which would otherwise put the question back to Congress to decide whether to rescind its earlier allocation, as the president requests, or to tell the president to spend it as Congress determined.
Except Congress did nothing with the recission request, because that’s what this Congress does best, and when the fiscal year expires, the money will disappear, mooting the question. See how sexy this is?
The beneficiaries of the funding sued to compel Trump to pay the money out. The district court said do it. The circuit court refused the governments request for a stay. And to the Supreme Court they went. You’ll never guess what happened there.
On September 3, the United States District Court for the District of Columbia entered a preliminary injunction directing the Executive to obligate roughly $10.5 billion of appropriated aid funding set to expire on September 30. Of that $10.5 billion, $4 billion was proposed to be rescinded in a “special message” transmitted pursuant to the Impoundment Control Act. See 2 U. S. C. §681 et seq. After the District Court and the United States Court of Appeals for the District of Columbia Circuit denied stays of that order, the Government filed this application to stay the District Court’s injunction. The application for stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted. The Government, at this early stage, has made a sufficient showing that the Impoundment Control Act precludes respondents’ suit, brought pursuant to the Administrative Procedure Act, to enforce the appropriations at issue here. The Government has also made a sufficient showing that mandamus relief is unavailable to respondents. And, on the record before the Court, the asserted harms to the Executive’s conduct of foreign affairs appear to outweigh the potential harm faced by respondents. This order should not be read as a final determination on the merits. The relief granted by the Court today reflects our preliminary view, consistent with the standards for interim relief.
Yet again, the Supreme Court ruled without ruling, but effectively allowing Trump the line item veto. Except there is no law giving the president the line item veto. The trick now is for the president to just decide which congressionally appropriated funds he likes and which he doesn’t, and spend accordingly. It’s almost as if Trump ignored the Tik Tok Law time after time.
But what has become increasingly notable is that the Supreme Court, in summarily flipping the rulings of the circuit courts of appeal without so much as a hat tip to a rule or rationale, has pretty much rendered the courts impotent and pointless. The circuit courts make their decisions after the issues are fully briefed and the matter argued. The circuit courts take their time to consider the issues and write opinions, often quite lengthy, explaining why they ruled as they did.
And then the Supreme Court gets an application on the shadow docket and, without briefing, argument, conference or time for serious consideration, issues cursory rulings, often flying in the face of long-standing precedent like Humphrey’s Executor, without the tiresome bother of explanation.
So circuit does deep dive and writes thoughtful opinions. Supremes shrug and go “nah.” In this case, the Supreme Court didn’t even have the benefit of a fully-fleshed out circuit decision before deciding.
As even that much suggests, this case is not a likely candidate for a grant of emergency relief. Per usual on our emergency docket, we have had to consider this application on a short fuse—less than three weeks. We have done so with scant briefing, no oral argument, and no opportunity to deliberate in conference. Because of how this case came to us, we likewise do not have the benefit of a pertinent court of appeals decision, much less a set of decisions expressing different views. In a few weeks’ time—when we turn to our regular docket—we will decide cases of far less import with far more process and reflection. The Court today carries on regardless, staying the District Court’s ruling that the Executive must obligate the disputed funds. To its credit, the majority emphasizes in its order that it has reached only a “preliminary view” of the issues raised, which should not be read as a “final determination on the merits.” Ante, at 1. But even at that, the majority goes too far. The Executive has not met our standard for emergency relief—the appropriately high bar we have erected because a stay like this one disrupts “the ordinary processes of administration and judicial review.” Nken v. Holder, 556 U. S. 418, 427 (2009). The Executive has not “made a strong showing that [it] is likely to succeed on the merits.” Id., at 426. Nor has it shown that, in the absence of relief, it will suffer irreparable harm. We therefore should have denied this application, allowed the lower courts to go forward, and ensured that the weighty question presented here receives the consideration it deserves.
As Justice Robert Jackson astutely noted, “We are not final because we are infallible, but we are infallible only because we are final.” The justices of the Supreme Court have shown cavalier disrespect to the studious decisions of a slew of circuit courts now, These circuit judges aren’t some bunch of slackers and fools, even if there is an occasional bum in the bunch, and yet their efforts are shown no comity by a Court that can’t even be bothered to fully consider a case before reversing the circuit court’s determination.
