A divided Ninth Circuit panel declined to push the pause button on a San Francisco-based district court's nationwide injunction blocking the government from carrying out President Trump's executive order aimed to reign in the size of the federal government through large-scale reductions in its workforce, with special focus on those federal agency “offices that perform functions not mandated by statute or other law.” A coalition of unions, nonprofits, and local governments brought the lawsuit to challenge the president's authority to reorganize the agencies, absent congressional approval. Undeterred, the government promptly applied to the Supreme Court to freeze the injunction while its appeal before the Ninth Circuit moves forward. In arguing for the emergency relief, Solicitor General D. John Sauer called the district court's order “flawed” and resting on an “indefensible premise” that the president needs authorization from Congress to oversee personnel decisions within the Executive Branch. In an unsigned, one-page order issued July 8, the Supreme Court seemingly had no difficulty staying the injunction, reasoning that “the Government is likely to succeed on its argument that the Executive Order… [is] lawful.”
Although Justice Sotomayor joined the Court's stay, she wrote separately (and briefly), just to point out that the “Executive Order directs agencies to plan reorganizations and reductions in force ‘consistent with applicable law'…. The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law.” Justice Sotomayor's quarter-page dissent has a clarifying quality to it—eliminating any doubt for why she did not join the 14-page solo dissent penned by Justice Jackson, who criticized both the president for restructuring federal agencies without congressional “buy-in” and her colleagues for demonstrating an “enthusiasm for greenlighting this president's legally dubious actions in an emergency posture.”
Takeaways:
- Judicial Deference to the Executive on Questions of Executive Branch Control: The Supreme Court lifts barriers for the government to implement the Executive Order while the litigation in the lower courts moves forward, in what is seen as the Justices' hat-tip to Ninth Circuit Judge Consuelo Callahan's opinion, dissenting from the Ninth Circuit panel majority's denial of the government's stay application. Judge Callahan wrote that Article II vests the president with authority over the Executive Branch, his authority necessarily encompasses general administrative control of those executing the laws throughout the Executive Branch of government, and it “includes the authority to prescribe reorganizations and reductions in force” (quoting Nixon v. Fitzgerald, 457 U.S. 731, 757 (1982)).
- Universal (Nationwide) Injunctions: The Court again addressed the concept of universal injunctions after holding this term in Trump v. CASA, Inc. that it exceeds the equitable authority of the federal judiciary. This new ruling reinforces the Supreme Court's trend of clipping the wings of district judges.
- The Court's (Internal) Critic: With her dissent here, Justice Jackson, despite being the Court's most junior justice, further cements her role as the Court's most outspoken critic.
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