March 5, 2025 • 43 mins
In this episode, lawyer Richard Hoeg explores recent legal and political developments surrounding the Supreme Court's non-decision on USAID funding and related controversies. He covers the District Court's restraining order, the government's response, administrative stays, and the Supreme Court's 'decision'. Justice Alito's dissent on sovereign immunity and equitable jurisdiction is analyzed, along with discussions on irreparable harm and universal injunctions. Hoeg also touches on constitutional crises, the Impoundment Control Act, and spending authority conflicts, concluding with thoughts on the Constitutional order and engaging with the audience.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:14):
Hello, and welcome to another episode ofVirtual Legality.
I'm your host, Richard Hogue, managing memberof the Hogue Law Business Law Firm of
Northville, Michigan.
And I created this series, What the Trump,because I saw an administration that was
animated by the Silicon Valley esque notion ofmoving quickly and breaking things, and I saw
it covered by a media infrastructure that wasvery passionate about what was being done
(00:36):
either for or against, but maybe wasn't asilluminating or educational or informative as I
would like to see about these very importantissues with respect to how The United States is
run.
So what you're not likely to hear from me aspart of this series on this channel are policy
prescriptions, whether something that is beingdone is good or bad or how you should feel
about it from that perspective.
(00:56):
What you will hopefully hear from me is whathappened, why it happened, and how the legal
arguments work around that so that you betterunderstand what these fights are about from a
legal perspective when you're done watchingthese videos.
With that said, before we can get into thisvery important, I'm gonna call it a decision of
the Supreme Court even though it's really moreof a non decision, we have to go back to first
(01:18):
principles.
And in that case, the first principles arearticle one of the United States Constitution,
which says that all legislative powers here ingranted in the constitution shall be vested in
a congress of the United States.
Or said another way, congress has the sole andexclusive authority to pass laws in The United
States.
What kind of laws?
(01:39):
Well, Well, in order to understand that, wehave to scroll a little bit further down in the
constitution in which it says the Congressshall have the power to, among other things,
lay and collect taxes, to pay the debts andprovide for the common defense and general
welfare of The United States, and to borrowmoney, etcetera, using its legislative
authority.
It also has the sole and exclusive authority todraw money from the treasury and to portion
(02:04):
that money out to whatever it sees fit.
And that's an important part of ourunderstanding of what's happening here because
what happened earlier this year in 2025 is thatpresident Trump sought to end payments to the
US aid organization and through the contractsthat the US Aid organization entered into
through his powers as executive of The UnitedStates.
(02:27):
But the executive has the authority to controlthe executive branch but also the obligation to
take care that the laws be faithfully executed.
So there becomes a constitutional tensionbetween Congress's sole authority to apportion
funds to various things, to collect thosetaxes, to pay the debts of The United States,
and the executive's authority to controlcertain aspects of how the executive branch
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actually functions.
That's the baseline of this particular fight,but that's only the start of why this fight is
so interesting.
Now if you've seen this reported on since thisonly happened a couple of hours ago as I record
this video, you might see phrases like the oneespoused here by Kyle Cheney, reporter for
Politico, that says the Supreme Court hasupheld a lower court's order forcing USAID and
(03:10):
state to immediately pay $22,000,000,000 owedto contractors for work they've already
performed.
But the use of the term upheld here, I wouldargue, is very controversial insofar as upheld
usually refers from a legal perspective to acourt looking at what was done in a lower court
level or by Congress and saying, yes.
That's okay.
That's constitutionally acceptable.
(03:31):
That's fine.
Reaching what we call the merits of a givencase.
That is not what happened here.
In fact, if we look at the Supreme Court,again, I'm gonna use the word decision here, it
is a decision related to an application tovacate an order issued by the United States
District Court for the District of Columbia.
And if that doesn't make any sense to you, Idon't blame you.
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We're gonna have to dive deeper into the factsof what happened in this particular story to
even understand that.
But this was a request by The United States tovacate a decision made by a lower court.
And what the Supreme Court wound up doing issaying we're not gonna do that.
We're not gonna vacate that lower court'sdecision.
But it doesn't reach whether the lower courtdid anything right.
(04:13):
A lot of folks will report on this, and I thinkas justifiable shorthand for people to
understand it as the Supreme Court essentiallyupholding what the lower court did, but that's
not what happens from a legal perspective.
The Supreme Court essentially said, no.
We're not interested in doing that because asopposed to the Trump administration and Elon
Musk on Twitter moving fast and breakingthings, the Supreme Court, the judiciary branch
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of The United States, is inherently, by itsnature, a conservative institution.
And I don't mean conservative as in respect ofRepublicans and Democrats.
I mean, they are very slow to move and very,very reluctant to break things.
Sometimes even to the detriment of their legalanalysis in cases like perhaps this one and
certainly others in the history of The UnitedStates.
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So the Supreme Court, despite what you mighthear in press descriptions of them siding with
president Trump or Republicans or conservativesof the big c variety in The United States is
far more animated, in my opinion, by the notionthat they shouldn't be breaking things that
don't have to be broken and that the Robertscourt in particular, headed by chief justice
(05:21):
Roberts, is very, very reluctant to set foot inanything that it views as a political quagmire,
controversy, or question.
So the Roberts court was always gonna bereluctant to say much about anything in respect
of questions like the one we're discussingtoday, but also they are reluctant to break
anything in so far as how things were workingbefore an executive took an action like the one
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that Trump attempted to take with respect tocutting off funding through USAID and the
contractors that it had signed up with.
That all said, let's take a look at what thisorder actually says.
On February 13, the United States DistrictCourt for the District of Columbia entered a
temporary restraining order in joining thegovernment from enforcing directives pausing
disbursements of foreign development assistantfunds.
(06:07):
Now that already has a lot of verbs in it, solet's break that down even further.
So the Trump administration, the government,capital g, as reported in this particular
decision, tried to stop disbursements offoreign development assistant funds through
USA.
That's what they tried to do.
Then the district court of the District ofColumbia entered a temporary restraining order
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enjoining them, preventing them from doingthat.
So president Trump comes into office.
He says, we are not going to allow the fundsthat have otherwise been apportioned to USAID
to be used to fund these various contracts thatUSAID would have entered into.
And then the district court of the District ofColumbia says, no.
You can't do that.
That's outside your executive powers.
Your job is to take care that the laws arefaithfully executed.
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Congress has the power of the purse, and youcan't do this.
The present application, the Supreme Courtnotes, does not challenge the government's
obligation to follow that order.
But later on, a couple weeks later on, onFebruary 25, that same district court ordered
the government to issue payments for a portionof the pause disbursements.
Those owed for the work already completedbefore the issuance of the district court's
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temporary restraining order by 11:59PM onFebruary 26.
Now, you might note that that's already acouple of days ago at the time of recording of
this video.
That's going to be a part of this this decisionlater on.
Several hours before that deadline, thegovernment filed this application to vacate the
district court's February twenty fifth order,that's ordering payment, and requested an
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immediate administrative stay.
The chief justice, that's chief justiceRoberts, entered an administrative stay shortly
before the 11:59PM deadline and subsequentlyreferred the application to the court.
Now, I am not a trial litigator, and I'mcertainly not a lawyer that practices before
the Supreme Court.
So I am not familiar with the rules of civilprocedure that govern when and how a chief
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justice can issue a so called administrativestay.
But it is as is always the case when you'relooking at legal questions or other questions
that you're interested in, useful to go andlook at what other people have said about these
various things.
And so I found a law review article thatsummarized the position of what an
administrative stay is and isn't, I think,pretty well.
Unfortunately, like so many things in the law,it's not terribly eliminating in and of itself.
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Or as this article says, administrative staydoes not have a precise definition in current
doctrine, and the relationship betweenadministrative and regular stays is not clear
cut.
The ninth circuit, that's the West Coast in TheUnited States, recently characterized an
administrative stay as a device that is onlyintended to preserve the status quo until the
substantive motion for a stay pending appealcan be considered on the merits, and that does
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not constitute in any way a decision as to themerits of the motion for stay pending appeal.
So we don't have a great definition of this.
Unfortunately, this is the case with a lot oflaw.
You might think that there's a lot of brightlines, black letter law that explains how
various rules and things can work.
That is not always the case.
This is essentially a device used by the court,in this case, the Supreme Court, to say, we
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aren't even willing to look at the merits on apreliminary basis.
If you're looking for a preliminary injunctionor a temporary restraining order, there are
certain rules that don't necessarily reach themerits of a given case, but that we still look
at, we still interpret to understand when weshould issue those injunctions, those temporary
restraining orders.
An administrative stay is even before that,even a lesser level of review.
(09:27):
We think that we need even more time to come tothat level of understanding, and so this is
essentially just a pause.
This is a pause that the Supreme Court put inplace a few days ago to say we need to look at
this a little bit further.
And now this decision right now that we'rereading as part of this video is that decision
that they came to after thinking about it alittle bit more, or as I said earlier, more of
(09:48):
a non decision.
The application for that vacation of the lowercourt's decision is denied.
Given that the deadline in the challenged orderhas now passed, that's the earlier date we
talked about, and in light of the ongoingpreliminary injunction proceedings, there's a
lot more going on with this particular case,the district court should clarify what
obligations the government must fulfill toensure compliance with the temporary
(10:11):
restraining order with due regard for thefeasibility of any compliance timelines.
So the district court says you have to pay thismoney out on contracts that are already
effectively finished, that work was alreadydone on.
Before I entered my original order, thegovernment said, no.
We shouldn't have to do that.
You don't have the power or authority to makeus pay things.
(10:32):
And now the Supreme Court says we're not goingto give you a vacation of that earlier order,
government.
And so you are gonna wind up having to paythings, but the timeline doesn't make any sense
now because this process took a few days.
And so the district court has to come up with anew timeline that you can abide by regarding
the feasibility of any compliance timelines.
So that's the state of play right now.
I know it's very confusing when you have lowerdistrict court judgments, when you have appeals
(10:55):
processes, when you have injunctions andtemporary restraining orders happening at the
same time, but that's what this comes down to.
And then we have a dissent.
That's the order on the first page.
That's what the Supreme Court has decided.
It's not otherwise signed by anybody.
It's just by the majority of the Supreme Court.
Then we have a dissent from justice Alito,justice Thomas, justice Gorsuch, and justice
Kavanaugh, who are all Republican appointees ofthe Supreme Court that says, does a single
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district court judge who lack who likely lacksjurisdiction have the unchecked power to compel
the government of the United States to pay outand probably lose forever 2,000,000,000
taxpayer dollars?
Well, that really answers the question for youjust in the way that it's phrased.
The answer to that question should be anemphatic no, says justice Alito, but a majority
of this court apparently thinks otherwise.
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I am stunned.
And it was actually this paragraph that drew myattention to wanting to discuss this with you
here in virtual legality, which is to say youdon't usually hear the Supreme Court justices
be this animated, this kind of divisive, in thecontext of an opinion, in the context of legal
rhetoric.
You do hear them take small snipes at eachother usually through footnotes and other
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attributes like that, but I am stunned is a lotof harsh language when it comes to a Supreme
Court decision.
Now what does justice Alito say happened here?
In capsule form, this is what happened.
Respondents are a group of American businessesand nonprofits that receive foreign assistance
funds from the State Department and the USAgency for International Development.
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That's USAID.
They brought suit and claimed that the currentadministration's temporary pause of foreign
assistance payments is unlawful.
On 02/13/2025, the district court issued atemporary restraining order requiring the
government to halt its funding pause.
It based that decision on a finding thatrespondents are likely to succeed in showing
that the government violated the AdministrativeProcedure Act or APA.
(12:46):
Now that in and of itself is an interestingpiece of the puzzle here because the
Administrative Procedure Act is a law thatrequires the executive branch agencies in
government to do things in various ways.
But there is an open and continuing question asto whether or not the Administrative Procedure
Act and various other aspects of theindependent agency creation framework that has
governed the administrative state in The UnitedStates is constitutional in and of itself.
(13:10):
We talked about that in our earlier episode inWhat the Trump?
Talking about the fact that Trump issued anexecutive order to try to take control of those
independent agencies and suggesting thatCongress was not constitutionally authorized to
have those agencies be as independent as theywere claimed to be.
This is another area in which that is aparticular bit of softness for Congress and
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though Justice Alito isn't acknowledging ithere, it is worth noting that if Congress
doesn't have the authority to provide for theexecutive branch to abide by certain rules like
those in the Administrative Procedure Act, thenthat in and of itself would be an
unconstitutional exertion of power and theSupreme Court is ultimately going to have to
decide that at some point during thisadministration.
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After issuing the TRO, the district judge grewfrustrated with the pace at which funds were
being dispersed, and I highlighted grewfrustrated there because that is a bit of
editorializing from justice Alito.
And on February 25, he issued a second orderrequiring the government to pay out
approximately 2,000,000,000 US dollars.
The judge brushed aside the government'sargument that sovereign immunity barred this
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enforcement order, we'll talk about sovereignimmunity in just a minute, And he took two
steps that unless corrected, would prevent anyhigher court from reviewing and possibly
stopping the payments.
First, he labeled the order as a non appealablet r o, temporary restraining order.
And second, he demanded that the money be paidwithin thirty six hours.
Now, the t r o aspect of this is interestingbecause a temporary restraining order is the
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level below a preliminary injunction.
An administrative say is the level below atemporary restraining order, but a temporary
restraining order is usually designed to keepthe status quo as it is.
Right?
That you are restraining somebody from doingsomething that would change things before a
court can look at it and determine that thatchange would be illegal or otherwise harmful.
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In this particular case, as you can already seejust from how this is described, this
restraint, what the temporary restraining orderis doing, is restraining you from not doing
something.
If you're the US government, it is restrainingyou from not paying out the amounts that are
owed on these contracts.
So it's a little bit of an unusual applicationof the concept of a TRO as it stands.
We'll see justice Toledo harp on that a lotmore as we go through this document.
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Then the government moved for a stay pendingappeal in the district court.
The government quickly filed an appeal in theUnited States Court of Appeals for the District
of Columbia, but with only four hours to sparebefore the payment deadline, the DC Circuit
dismissed the government's appeal because ittook the district court's t r o label at face
value and determined it lacked appellatejurisdiction.
With nowhere else to turn and the deadline fastapproaching, the government asked this court to
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intervene.
At the last moment, the chief justice issued anadministrative stay.
You see references to the fact that justiceRoberts only posted that administrative stay in
the last couple of minutes before the deadlinein a couple of places in this document.
This, I think, is best read as justice Alitobeing effectively legally furious at how the
court has operated on this question.
You don't have to agree with justice Alito.
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I think a lot of this language is maybe a bitsuperfluous and is evidencing a certain amount
of animosity in the way the court operates thatis probably not useful for a belief in the
Supreme Court as deciding body in the future,but reasonable lines can differ on even that.
Nevertheless, at the last moment is unnecessaryto make the sentence work and is designed to
suggest that chief justice Roberts wasreluctant to act on this at all.
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Unfortunately, a majority has now undone eventhat stay.
As a result, the government must apparently paythe $2,000,000,000 posthaste, not because the
law requires it, but simply because a districtjudge so ordered.
As the nation's highest court, we have a dutyto ensure that the power entrusted to federal
judges by the constitution is not abused.
In fact, the Supreme Court, like the president,is the highest power within their branch, the
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judiciary versus the executive, and so they dohave a responsibility to make sure that judges
are doing what they are supposed to be doing.
Today, the court fails to carry out thatresponsibility.
So justice Toledo is pissed.
That is self evident from this document.
It will continue to be self evident as we gothrough it.
To start, it is clear that the district court'senforcement order should be construed as an
appealable preliminary injunction, not a mereTRO.
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A TRO, as its name suggests, is temporary, andits proper role is to restrain challenged
conduct for a short time while the courtconsiders whether more lasting relief is
warranted.
The order here, while commanded the payment ofa vast sum that in all likelihood can never be
fully recovered, is in no sense temporary, nordid the order merely restrain the government's
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challenged action in order to preserve thestatus quo.
Rather, it acts as a mandatory injunctionrequiring affirmative action by the government.
And if we were to rank the ways in which courtsthink about these things, an injunction that
requires you to do something, again, that kindof restraint on not doing something, is the
most difficult, highest threshold of, proofthat you are supposed to have before a court
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requires you to do it.
Because the legal system, and we've talkedabout this in virtual reality before, is pretty
bad at making sure that people do things.
It's okay at making sure that people don't dothings, and it is best at moving money around.
And that is what's happening here is that moneyis moving being moved around, but under the
auspices of an injunction or temporaryrestraining order, which, again, we'll see
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justice Alito object to.
Given its likely irreversibility, the districtcourt's enforcement order effectively gave
respondents a portion of the ultimate reliefthey seek.
They sued to get their money.
They're getting a portion of that money.
For these reasons, the court of appeals hadjurisdiction to consider the government's
appeal, and we have jurisdiction to review andsummarily vacate that court's erroneous
judgment.
And this is important because, again, despitewhat you might see in other articles or other
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reporting on this matter, the Supreme Court didnot reach the merits of what the district court
did.
And so this appears to be a response fromjustice Alito to what was likely a position
held by Roberts and the majority in thisparticular case that they didn't have
jurisdiction to hear the vacation request inany event because this TRO was quote unquote
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non appealable.
So we know Justice Roberts from history likesto avoid political questions for any reason and
finds a hook to hang his hat on fromjurisdictional requirements to standing
requirements and various other reasons thatbother me personally as a lawyer that would
like to see the law cleared up on thesequestions, but that he feels is important to
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help keep the Supreme Court separate from theother branches and to keep their authority and
understanding in The United States all along.
So when we talk about these things, I have arelatively strong disagreement with how Roberts
conducts operations at the Supreme Court as itstands, but that doesn't mean that even if they
found jurisdiction here, the other members ofthe court would have agreed with Alito on his
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analysis, which is to follow.
Even if the majority is unwilling to vacate thedistrict court's order, justice Alito says, it
should at least stay the district court'senforcement order until the government is able
to petition for a writ of certiorari.
In considering whether to issue such a stay, weask at a minimum, one, whether the moving party
is likely to prevail on the merits, and two,whether that moving party is likely to suffer
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irreparable harm.
Said another way, when we look at these things,we are going to look overall at whether the
party that's asking us to do something islikely to win when we get to the whole case,
and then two, whether or not that party that'sasking us to do something would be so harmed by
our failure to act that we can't fix it afterthe fact.
So when you're asking us to do something earlybefore we've heard the whole case, those are
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the two factors that we look at.
In close cases, justice Alito says, we alsotake into account other equitable
considerations.
So on the likelihood of success, justice Alitosays, the government has shown a likelihood of
success on the merits of its argument thatsovereign immunity deprive the district court
of jurisdiction to enter its enforcement order.
Sovereign immunity bars a suit by privateparties seeking to impose a liability which
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must be paid from public funds in the treasury.
And, yes, if you didn't know this already,sovereign immunity basically protects all of
the various governments in The United States,whether that's the federal, the state, or their
local government from being sued by privatecitizens even for things that are done badly by
them as a function of the fact that the courtsystem that you'd be suing them under is also a
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part of the sovereign, that you can't sue thesovereign that runs the courts through the
courts.
And, yes, if that strikes you as immenselyunfair and results in a lot of injustice done
by these various governments, there's a there'sa long history of that, and there are attempts
by congress and other local bodies to let yousue the various governments for things like
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civil rights violations because thoseinjustices were so strong.
But, says justice Alito, this is exactly whatthe district court ordered here.
Or as they say, the restrained defendants shallpay all invoices and letter of credit drawdown
requests on all contracts for work completedprior to the entry of the court's TRO on
February 13.
Sovereign immunity may be waived, justice Alitonotes, but to sustain a claim that the
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government is liable for awards of monetarydamages, the waiver of sovereign immunity must
extend unambiguously to such monetary claims.
So like I said, Congress has passed laws thatallow you to sue for things like civil rights
violations, and they do it expressly in blackletter law within that law that says you can go
and get money from the government for aviolation of this type.
Attempting to satisfy this strict requirement,respondents point to the APA's waiver of
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sovereign immunity for certain actions seekingrelief other than money damages.
That language, as we have explained,distinguishes between specific relief, that's
relief that requires somebody to do something,which is permitted under the APA, and
compensatory or substitute relief, that'smonetary relief, which is not.
But the relief here more closely resembles acompensatory money judgment rather than an
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order for specific relief that might have beenavailable in equity.
So one of the things that's noteworthy herefrom a legal perspective is that what this
temporary restraining order that was issued bythe lower court sought to do was not so much
say that you owe x amount of dollars 1 way orthe other, but to mandate that you do
something.
To mandate that as the government, you pay yourcontracts, you pay your drawdown request, you
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do these various things, and then claim thatthat falls outside of sovereign immunity
because it's an order to do somethingspecifically, not an obligation from a monetary
perspective.
It's a little bit of legal wrangling, a littlebit of plate spinning from the court that
justice Toledo, I think, has a strong argumenthere against to say that that isn't what we're
talking about as specific relief.
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That is essentially just monetary relief thatyou have described in a different way.
Or as he quotes from this other precedent, aninjunction to compel the payment of money past
due under a contract or specific performance ofpast due monetary obligation was not typically
available in equity under the powers of a courtto order somebody to do something or refrain
from doing something.
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Hoping to escape this conclusion, respondentspoint to a case called Bowen.
In that case, we held that the APA's waiver ofsovereign immunity covered a district court's
judgment, reversing a final order of thesecretary of health and human services refusing
to reimburse Massachusetts for certain Medicaidexpenditures.
Unlike the district court's order here, thatjudgment did not purport to order that any
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payment be made by The United States.
Indeed, we have since clarified that Bowen hasno bearing on the unavailability of an
injunction to enforce a contractual obligationto pay past money due.
The sort of relief that appears to have beenordered here.
The district court, however, failed to mention,much less reckoned with, Bowen or Knudson
before plowing ahead with its $2,000,000,000order.
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Again, plowing ahead is a little bit ofeditorializing from justice Alito.
Nor did it take account of our previoussuggestion that the proper remedy for an
agency's recalcitrant failure to pay out may beto seek specific sums already calculated and
past due in the court of federal claims, Thatyou can, in fact, sue under a different law
passed by Congress for a breach of contract.
You did something, you did work for them, theydidn't pay you.
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That's different than being ordered to pay inthis particular context under the law.
Finally, the government has a strong argumentthat the district court's order violates the
principle that a federal court may not issue anequitable remedy that is more burdensome to the
defendant than necessary to address theplaintiff's injuries.
In this case, the district court's enforcementorder functions as a universal injunction
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defying these foundational limits on, like,equitable jurisdiction.
Now what does he mean by any of this?
The district court ordered the government topay all invoices and letter of credit drawdown
requests on all contracts for pre t r o work.
That order encompasses more than justrespondents, more than the people suing.
And the district court offered no reason whyuniversal relief to non parties is appropriate
here.
And this is not the sort of case in which onlyuniversal relief is feasible.
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Nobody has suggested that the government isunable to identify respondents allegedly owed
funds and payout only to them.
Limiting the scope of relief in that mannerwould be significant.
Below, the government represented respondentsseek roughly 250,000,000 US dollars.
Still a large figure, but a fraction of the$2,000,000,000 ordered.
So what he's saying here is that the SupremeCourt and all courts in The United States
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constitution are only allowed to opine, onlyallowed to do things with respect to cases or
controversies before them, which means thatthey are only supposed to provide relief,
redress, however you wanna frame it from alegal perspective, to the parties in front of
them.
This was instead a kind of universalrequirement to pay out everything that happened
before the TRO was issued, and that's going tonaturally encompass people that are not before
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the court.
So I think this is a stronger argument fromjustice Alito than some of the others that we
have already seen.
There are problems with what justice Alito hasalready offered.
But, again, the Supreme Court did not agreewith any of this.
This is a dissent.
This is not the order of the Supreme Court, andso justice Alito is on the wrong side of this
particular opinion.
The government has shown that it is likely tosuffer irreparable harm if the district court's
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order is not stayed.
Now here, I wanna point out that I think thisis effectively wrong.
The The government has represented that itwould probably be unable to recover much of the
money after it is paid because it would bequickly spent by the recipients or dispersed to
third parties.
Response did not credibly dispute thisrepresentation, and the district court did not
find that it is incorrect.
So the notion here, again, is that we shouldput our own stay in place.
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We should prevent the district court fromrequiring these payments if the government is
likely to succeed on the merits of theirargument, and they would be irreparably harmed
if we didn't do this.
And this is the part where he's trying toestablish there is irreparable harm.
The problem he has is that because he's alreadystated that this is more of a monetary
compensation issue than a specific performanceone, it's very difficult to find irreparable
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harm.
Why?
Because irreparable harm is summarized here bythe Cornell Law School is a legal term that
refers to harm or injury that cannot beadequately compensated or remedied by any
monetary award or damages that may be awardedlater.
So justice Alito here steals a base.
It's clear that if the government pays out xamount of dollars, then it would be easy enough
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to redress that particular harm to them bypaying them back that amount of money, perhaps
with interest, however you would wanna seethat, if the government ultimately wins the
day.
Instead, justice Alito says, well, that money'sgonna be spent.
It's gonna be gone, and so the money might notever make it back into the government's
treasury, and so that's irreparable harm.
But that's not how money works.
The lossy's money is fungible.
It doesn't mean that you have to have thehundred dollars that was paid to you to give
(28:33):
back.
You can spend that, and as long as you can getthat hundred dollars from a different source
and pay the government back, then thegovernment is going to seek that redress.
It also isn't the case that these entities inand of themselves have to be the ones that pay
them back with only their current operatingfunds.
Right?
They can go get a loan.
There are any number of ways that money couldbe acquired here that could pay the government
(28:54):
back.
Now, it does seem unlikely that these variousparties can collect $2,000,000,000.
It would be very difficult to do.
But when we talk about irreparable harm underthe law, we almost always aren't talking about
monetary payments because monetary payments arethe thing that we think that the law can fix
the easiest.
We usually balance the equities and weigh therelative harms in close cases, says justice
(29:16):
Alito.
For the reasons I've explained, this is notsuch a case.
I don't see this as close at all, and ouranalysis could end there.
Nevertheless, respondents' equitable argumentsare insufficient anyway.
They contend that the failure to pay the moneyin question would cause them irreparable harm,
that's why they get this order at the lowercourt level, because without those funds, they
could not continue to operate or would have toreduce the work they do.
(29:36):
As a result, they claim, recipients of theirservices would suffer.
These potential consequences are, of course,serious.
But any harm resulting from the failure to pay,amounts that the law requires would have been
diminished, if not eliminated, if the Court ofAppeals had promptly decided the merits of the
government's appeal, which it should not havedismissed.
That's fine, but it's the ifs and buts werecandy and nuts kind of notion of legal
(29:58):
reasoning.
They could still be harmed here regardless ofwhat the Court of Appeals should have done,
justice Alito.
This is by far the weakest section of hisargument, and I think it suffers from major
issues there.
If it decided in favor of respondents, thegovernment would be obligated to pay all the
money that is due, and respondents would havesuffered only a short delay in their receipt of
payments.
And how that argument doesn't also apply to thegovernment is unclear.
(30:20):
And if the government prevailed on itssovereign immunity argument, which he thinks is
a short winner, neither respondents nor any ofthe recipients of their services would have
suffered any unlawful consequences because theyweren't owed any of this money anyway.
In sum, the factors we consider in decidingwhether to issue a stay weighs strongly in
favor of granting that relief.
Today, the court makes a most unfortunatemisstep that rewards an act of judicial hubris
(30:43):
and imposes a $2,000,000,000 penalty onAmerican taxpayers.
The district court has made plain itsfrustration with the government, and
respondents raised serious concerns aboutnonpayment for completed work.
A federal court has many tools to address aparty's supposed nonfeasance.
Self aggrandizement of its jurisdiction is notone of them.
I would chart a different path that the courtdoes today, so I must respectfully dissent.
(31:07):
So overall, I think justice Alito has a tenableposition to say that the district court
overreached in its universal application ofthese rules and that the Supreme Court should
be more concerned about district courts and howthey operate than it seems to be right now.
But the overall argument that he makes for whythis should be vacated, why the merits would be
(31:27):
won by the government on this particularquestion, I think are fairly weak.
So looking at this holistically, I see adecision or non decision by the Supreme Court
that is effectively one that says we don't likethe way the district court operated or at least
from the dissent's point of view, and so theyshouldn't be allowed to operate that way.
And they have some reasons for why thatshouldn't be the way that the court system
(31:48):
operates, But the actual argument for why thecourt should have vacated the lower court's
decision is the weakest part of thisconversation.
Also, I don't think because the Supreme Courtdidn't otherwise speak on this matter that the
Supreme Court has one position or another onthe merits of the underlying district court's
order.
I think it's more likely that justice Robertsand justice Barrett and the others that are
(32:12):
forming the majority of this decision looked atthis and said, well, this is a political
question.
This is a thorny bush for us to enter into.
It's not at all obvious that we have the rightof it if we did enter into it, and it's easy
enough for us to say, well, it's notappealable.
We shouldn't be looking at this anyway.
We are going to abdicate our responsibilitieson this particular question.
(32:33):
And I think that's what justice Alito isresponding to more than anything.
He's been on this court for a long time.
He's seen justice Roberts operate the court inthe way that he does.
And at the end of the day, I think this anger,the animosity that you can read between the
lines of this particular decision is justiceAlito getting sick of justice Roberts kicking
these important decisions down the road towhere they are potentially more harmful to more
(32:54):
parties, and this is a reaction to that.
What it isn't is the Supreme Court upholdingthe lower court's decision, and it also isn't a
constitutional crisis.
So So you'll also see reporting a lot duringthis administration about what represents a
constitutional crisis or not.
I wanna use a definition here so that we cantalk about about it a little bit more
fulsomely.
In political science, as described byWikipedia, which I don't recommend for any
(33:17):
political questions whatsoever, aconstitutional crisis is a problem or conflict
in the function of a government unit that thepolitical constitution or other fundamental
governing law is perceived to be unable toresolve.
So we have all these rules and ways that theconstitution of The United States works.
You see me continue to refer to them Here invirtual legality, the argument here is that
(33:38):
what is happening is something that theconstitution doesn't otherwise have an answer
for, doesn't have an understanding for.
And constitutional crisis at its most baselinelevel might be when the president refuses to
agree to a Supreme Court decision, refuses toperhaps pay out this $2,000,000,000, and then
congress refuses to impeach.
(33:58):
But even including that congress refuses toimpeach part explains why this is not, at this
present moment in time, a constitutional crisisof any fundamental level.
Because even if president Trump and hisadministration or Elon Musk or whoever you
wanna blame for these various things, were torefuse the district court's order to make these
(34:18):
payments on the timeline that is set forthwhenever that decision is made.
Congress still has the opportunity to impeachthe president for failure to faithfully execute
the laws.
And just because Congress doesn't do that, ifthey don't do it in fact, doesn't mean that
democracy or the notion of the constitution hasfailed.
That's one of those areas where I really getmore interested in how people are talking about
(34:41):
these things because I think too many of ourleaders, too many of our politicians look at
questions of, I don't like the way this policywent, I don't like the way the government did
this thing or didn't do this thing, and that'sa failure in democracy.
To the extent that impeachment requires therepresentatives of the people to actually take
an act against another elected official likethe president, that is democracy in action.
(35:05):
And if you didn't get the result that youwanted, that doesn't make it undemocratic.
That simply makes it a result that the otherrepresentatives, the majority of
representatives didn't agree with you on.
And I understand how that can feel like itsucks.
I haven't had a single government in mylifetime, I think, that I agree with even the
majority of the actions that they have taken.
(35:26):
And yet, that doesn't mean that democracy hasdied.
So when Elon Musk posts things like, what isthe point of having democratic elections if
unelected activist judges can override theclear will of the people?
It's important to remember that those judgesare put in their positions through the
democratic process, that there are appointmentsmade at the Supreme Court level.
The Supreme Court makes certain decisions onhow the district courts are to operate.
(35:47):
And just because you disagree with them doesn'tmean that democracy has failed or is at risk of
failing or that we're in the midst of aconstitutional crisis.
Or as I said to mister Musk on Twitter, inshort, the will of the people is set forth in
our constitution which itself provides for theappointment of judges, and this is important
now, the limited powers of our government.
So I'm sure I didn't win any friends with a lotof the posters on Twitter with respect to this
(36:10):
question, but Elon Musk does this a lot and Iwanna point out that just because something
isn't going the way that you want it to ifyou're a United States citizen, it doesn't mean
that democracy has failed.
Or said another way, this stuff is complicated.
And only a few days ago on the NationalConstitution Center website, and I didn't look
at the politics here.
I just looked at this article, which I thoughtwas relatively neutral.
(36:32):
They asked, can a president refuse to spendfunds approved by Congress and came up with all
sorts of analysis?
The process in which the president withholds ordelays spending on programs authorized by
Congress is called impoundment.
This practice dates back to the thirdpresident, Thomas Jefferson, and it has at
times been controversial because theimpoundment of funds can put the executive and
legislative branches in conflict.
(36:53):
There is tension there.
Right?
When you learn about checks and balances ingrade school, it didn't mean that there was
never tension between the branches.
That's the design of the US government.
So there's tension, but that doesn't itselfmake a crisis.
As we already talked about, article one,section eight, and section nine talk about how
congress is supposed to be able to account fordebts and apportion things to what it wants to
(37:14):
apportion, but that that's intention with thetake care clause of the executive's requirement
to take care that the laws are faithfullyexecuted.
The most noted example of a conflict overimpoundment took place in the nineteen
seventies.
This is gonna sound familiar to you, whenpresident Richard Nixon refused to spend funds
on numerous programs approved by Congress.
During public hearings on the matter in 1973,Nixon's critics said the president was using
(37:36):
his impoundment powers to effectively vetoprograms by cutting off their funds.
President Nixon's supporters believed thatNixon was managing funds in an inflationary
environment using his take care powers.
They argued that essentially take care of thelaws are faithfully executed required him to
make sure that money wasn't being wasted.
The president's obligation to faithfullyexecute the laws plainly includes, says this
(37:57):
attorney general, an obligation to preventwaste.
Impounding to save the taxpayers' dollar hasalways had the full support of Congress.
Congress passed the Congressional Budget andImpoundment Control Act of 1974 in response to
the controversy.
So Congress, as we noted above, said, we aregoing to pass a law that requires the executive
to do things in various ways just like the APA,just like the other things that we've talked
(38:20):
about already in virtual reality.
This is an open question in the presentpolitical context because we don't quite know
the bounds of what congress can require of theexecutive branch.
Title 10 in this act in 1974 is commonlyreferred to as the Impoundment Control Act, and
it requires the president to report to congresswhen he impounds funds as a deferment, a
temporary delay, or a rescission, a permanentcancellation of spending.
(38:43):
The Supreme Court considered the impoundmentquestion in 1975 after the ICA was passed.
The city, New York, sued after it did notreceive funds allocated to it under the Federal
Water Pollution Control Act amendments.
President Nixon had vetoed the bill, butCongress overrode the veto.
Nixon then reduced program spending.
In his unanimous opinion, justice Byron Wrightwrote that the sole issue before us is whether
(39:05):
the 1972 act permits the administrator to allotto the states less than the entire amounts
authorized to be appropriated.
We hold that the act does not permit suchaction and affirm the court of appeals.
The congress wins this round because they havethe power of the purse and that the executive
cannot just withhold funds, which is what is atissue here.
Another effort to give the president moreflexibility in controlling how funds allocated
(39:26):
by Congress are spent was the Line Item VetoAct of 1996.
The act amended the ICA to authorize thepresident to cancel in whole any dollar amount
of discretionary budget authority, any item ofdue direct spending, or any limited tax
benefits signed into law.
You might remember this if you were around inthe nineteen nineties, but Bill Clinton used
the line item veto 82 times during its briefexistence, spoiler alert, with congress
(39:49):
restoring 39 appropriations.
In Clinton versus the city of New York, theSupreme Court struck down the line item veto in
a six three decision.
Justice John Paul Stevens said that under theconstitution's presentment clause in article
one section seven, the president must approveor reject a bill as presented to him by
Congress in its entirety.
He can't amend things.
He can't revise things.
Line item vetoes do that, and so he doesn'thave that authority, and it was rejected as
(40:12):
unconstitutional.
There is no provision in the constitution thatauthorizes the president to enact, amend, or
repeal statutes, he concluded.
Justice Stephen Breyer, joined by justicesSandra Day O'Connor and Antonin Scalia,
believed the one item veto act wasconstitutional.
Again, not a constitutional crisis.
These are just legal minds thinking through howthe bounds of congressional and executive
(40:33):
authority when they clash might otherwise befixed.
The act represents a legislative effort toprovide the president with the power to give
effect to some, but not all, of the expenditureand revenue diminishing provisions contained in
a single massive appropriations bill, and thisobjective is constitutionally proper, said the
dissent.
Right?
That's not the law of the land.
That's the dissent.
In recent years, the first Trump administrationand the Biden administration faced questions
(40:55):
when spending on certain programs was paused,including delays related to to spending in The
Ukraine and on the border wall.
Today, as the OMB continues to review federalspending programs, more questions about the
roles of Congress and the president in thespending process are likely to occur.
Indeed, and they're likely to continue to occurthroughout this administration, which as I
said, is animated by the notion of movingquickly and breaking things, and the Supreme
(41:19):
Court is very much animated by the oppositenotion.
So when it is pressed for things likeadministrative stays on very tight timelines
and making decisions on even tighter timelines,it is unlikely that you are going to see the
Supreme Court side with the moving fast andbreaking things contingent, whether that's
bearing a Republican or Democratic colorationscheme.
(41:40):
That's my opinion.
You don't have to agree with it, but I thinkthat's what you're more likely to see, and I
think that is what you see with the SupremeCourt acting in the way that it does in
Department of State versus AIDS vaccineadvocacy coalition.
So, that's been virtual reality for today.
I hope it was informative and informational.
If you like content like this, please considersupporting the channel at Patreon on the links
provided in the description by havingmemberships to the channel, by putting forth
(42:04):
super chats during live streams, or if none ofthat appeals to you, just subscribing, liking,
disliking, whatever floats your boat in termsof clicking on Google's various buttons and
telling your friends that we are having theseconversations.
Last but not least, leave comments to thesevideos or comments to the podcast versions of
these videos.
Let me know what you think.
I try to respond to as many as I can as quicklyas I can.
(42:25):
What do you think of this decision?
What do you think of the acts of presidentTrump?
What do you think of the acts of the districtcourt operating here?
What do you think of the acts of John Robertsand the Supreme Court?
There's lots of layers to untangle here withrespect to all of these various legal
questions.
And do you think there's a constitutionalcrisis here or pending on any or all of this?
Thank you so much for joining me in virtuallegality, and I look forward to seeing you in
(42:46):
the next one.
Virtual Legality is a YouTube video series withaudio podcast versions presented as commentary
and for education and entertainment purposesonly.
It does not constitute legal advice and doesnot create an attorney client relationship.
If you have legal questions about the topicsdiscussed, please consult your own legal
(43:07):
counsel.
Hello, and welcome to another episode ofVirtual Legality.
I'm your host, Richard Hogue, managing memberof the Hogue Law Business Law Firm of
Northville, Michigan.
And I created this series, What the Trump,because I saw an administration that was
animated by the Silicon Valley esque notion ofmoving quickly and breaking things, and I saw
it covered by a media infrastructure that wasvery passionate about what was being done
(00:36):
either for or against, but maybe wasn't asilluminating or educational or informative as I
would like to see about these very importantissues with respect to how The United States is
run.
So what you're not likely to hear from me aspart of this series on this channel are policy
prescriptions, whether something that is beingdone is good or bad or how you should feel
about it from that perspective.
(00:56):
What you will hopefully hear from me is whathappened, why it happened, and how the legal
arguments work around that so that you betterunderstand what these fights are about from a
legal perspective when you're done watchingthese videos.
With that said, before we can get into thisvery important, I'm gonna call it a decision of
the Supreme Court even though it's really moreof a non decision, we have to go back to first
(01:18):
principles.
And in that case, the first principles arearticle one of the United States Constitution,
which says that all legislative powers here ingranted in the constitution shall be vested in
a congress of the United States.
Or said another way, congress has the sole andexclusive authority to pass laws in The United
States.
What kind of laws?
(01:39):
Well, Well, in order to understand that, wehave to scroll a little bit further down in the
constitution in which it says the Congressshall have the power to, among other things,
lay and collect taxes, to pay the debts andprovide for the common defense and general
welfare of The United States, and to borrowmoney, etcetera, using its legislative
authority.
It also has the sole and exclusive authority todraw money from the treasury and to portion
(02:04):
that money out to whatever it sees fit.
And that's an important part of ourunderstanding of what's happening here because
what happened earlier this year in 2025 is thatpresident Trump sought to end payments to the
US aid organization and through the contractsthat the US Aid organization entered into
through his powers as executive of The UnitedStates.
(02:27):
But the executive has the authority to controlthe executive branch but also the obligation to
take care that the laws be faithfully executed.
So there becomes a constitutional tensionbetween Congress's sole authority to apportion
funds to various things, to collect thosetaxes, to pay the debts of The United States,
and the executive's authority to controlcertain aspects of how the executive branch
(02:50):
actually functions.
That's the baseline of this particular fight,but that's only the start of why this fight is
so interesting.
Now if you've seen this reported on since thisonly happened a couple of hours ago as I record
this video, you might see phrases like the oneespoused here by Kyle Cheney, reporter for
Politico, that says the Supreme Court hasupheld a lower court's order forcing USAID and
(03:10):
state to immediately pay $22,000,000,000 owedto contractors for work they've already
performed.
But the use of the term upheld here, I wouldargue, is very controversial insofar as upheld
usually refers from a legal perspective to acourt looking at what was done in a lower court
level or by Congress and saying, yes.
That's okay.
That's constitutionally acceptable.
(03:31):
That's fine.
Reaching what we call the merits of a givencase.
That is not what happened here.
In fact, if we look at the Supreme Court,again, I'm gonna use the word decision here, it
is a decision related to an application tovacate an order issued by the United States
District Court for the District of Columbia.
And if that doesn't make any sense to you, Idon't blame you.
(03:51):
We're gonna have to dive deeper into the factsof what happened in this particular story to
even understand that.
But this was a request by The United States tovacate a decision made by a lower court.
And what the Supreme Court wound up doing issaying we're not gonna do that.
We're not gonna vacate that lower court'sdecision.
But it doesn't reach whether the lower courtdid anything right.
(04:13):
A lot of folks will report on this, and I thinkas justifiable shorthand for people to
understand it as the Supreme Court essentiallyupholding what the lower court did, but that's
not what happens from a legal perspective.
The Supreme Court essentially said, no.
We're not interested in doing that because asopposed to the Trump administration and Elon
Musk on Twitter moving fast and breakingthings, the Supreme Court, the judiciary branch
(04:37):
of The United States, is inherently, by itsnature, a conservative institution.
And I don't mean conservative as in respect ofRepublicans and Democrats.
I mean, they are very slow to move and very,very reluctant to break things.
Sometimes even to the detriment of their legalanalysis in cases like perhaps this one and
certainly others in the history of The UnitedStates.
(05:00):
So the Supreme Court, despite what you mighthear in press descriptions of them siding with
president Trump or Republicans or conservativesof the big c variety in The United States is
far more animated, in my opinion, by the notionthat they shouldn't be breaking things that
don't have to be broken and that the Robertscourt in particular, headed by chief justice
(05:21):
Roberts, is very, very reluctant to set foot inanything that it views as a political quagmire,
controversy, or question.
So the Roberts court was always gonna bereluctant to say much about anything in respect
of questions like the one we're discussingtoday, but also they are reluctant to break
anything in so far as how things were workingbefore an executive took an action like the one
(05:45):
that Trump attempted to take with respect tocutting off funding through USAID and the
contractors that it had signed up with.
That all said, let's take a look at what thisorder actually says.
On February 13, the United States DistrictCourt for the District of Columbia entered a
temporary restraining order in joining thegovernment from enforcing directives pausing
disbursements of foreign development assistantfunds.
(06:07):
Now that already has a lot of verbs in it, solet's break that down even further.
So the Trump administration, the government,capital g, as reported in this particular
decision, tried to stop disbursements offoreign development assistant funds through
USA.
That's what they tried to do.
Then the district court of the District ofColumbia entered a temporary restraining order
(06:29):
enjoining them, preventing them from doingthat.
So president Trump comes into office.
He says, we are not going to allow the fundsthat have otherwise been apportioned to USAID
to be used to fund these various contracts thatUSAID would have entered into.
And then the district court of the District ofColumbia says, no.
You can't do that.
That's outside your executive powers.
Your job is to take care that the laws arefaithfully executed.
(06:53):
Congress has the power of the purse, and youcan't do this.
The present application, the Supreme Courtnotes, does not challenge the government's
obligation to follow that order.
But later on, a couple weeks later on, onFebruary 25, that same district court ordered
the government to issue payments for a portionof the pause disbursements.
Those owed for the work already completedbefore the issuance of the district court's
(07:16):
temporary restraining order by 11:59PM onFebruary 26.
Now, you might note that that's already acouple of days ago at the time of recording of
this video.
That's going to be a part of this this decisionlater on.
Several hours before that deadline, thegovernment filed this application to vacate the
district court's February twenty fifth order,that's ordering payment, and requested an
(07:37):
immediate administrative stay.
The chief justice, that's chief justiceRoberts, entered an administrative stay shortly
before the 11:59PM deadline and subsequentlyreferred the application to the court.
Now, I am not a trial litigator, and I'mcertainly not a lawyer that practices before
the Supreme Court.
So I am not familiar with the rules of civilprocedure that govern when and how a chief
(07:58):
justice can issue a so called administrativestay.
But it is as is always the case when you'relooking at legal questions or other questions
that you're interested in, useful to go andlook at what other people have said about these
various things.
And so I found a law review article thatsummarized the position of what an
administrative stay is and isn't, I think,pretty well.
Unfortunately, like so many things in the law,it's not terribly eliminating in and of itself.
(08:22):
Or as this article says, administrative staydoes not have a precise definition in current
doctrine, and the relationship betweenadministrative and regular stays is not clear
cut.
The ninth circuit, that's the West Coast in TheUnited States, recently characterized an
administrative stay as a device that is onlyintended to preserve the status quo until the
substantive motion for a stay pending appealcan be considered on the merits, and that does
(08:45):
not constitute in any way a decision as to themerits of the motion for stay pending appeal.
So we don't have a great definition of this.
Unfortunately, this is the case with a lot oflaw.
You might think that there's a lot of brightlines, black letter law that explains how
various rules and things can work.
That is not always the case.
This is essentially a device used by the court,in this case, the Supreme Court, to say, we
(09:06):
aren't even willing to look at the merits on apreliminary basis.
If you're looking for a preliminary injunctionor a temporary restraining order, there are
certain rules that don't necessarily reach themerits of a given case, but that we still look
at, we still interpret to understand when weshould issue those injunctions, those temporary
restraining orders.
An administrative stay is even before that,even a lesser level of review.
(09:27):
We think that we need even more time to come tothat level of understanding, and so this is
essentially just a pause.
This is a pause that the Supreme Court put inplace a few days ago to say we need to look at
this a little bit further.
And now this decision right now that we'rereading as part of this video is that decision
that they came to after thinking about it alittle bit more, or as I said earlier, more of
(09:48):
a non decision.
The application for that vacation of the lowercourt's decision is denied.
Given that the deadline in the challenged orderhas now passed, that's the earlier date we
talked about, and in light of the ongoingpreliminary injunction proceedings, there's a
lot more going on with this particular case,the district court should clarify what
obligations the government must fulfill toensure compliance with the temporary
(10:11):
restraining order with due regard for thefeasibility of any compliance timelines.
So the district court says you have to pay thismoney out on contracts that are already
effectively finished, that work was alreadydone on.
Before I entered my original order, thegovernment said, no.
We shouldn't have to do that.
You don't have the power or authority to makeus pay things.
(10:32):
And now the Supreme Court says we're not goingto give you a vacation of that earlier order,
government.
And so you are gonna wind up having to paythings, but the timeline doesn't make any sense
now because this process took a few days.
And so the district court has to come up with anew timeline that you can abide by regarding
the feasibility of any compliance timelines.
So that's the state of play right now.
I know it's very confusing when you have lowerdistrict court judgments, when you have appeals
(10:55):
processes, when you have injunctions andtemporary restraining orders happening at the
same time, but that's what this comes down to.
And then we have a dissent.
That's the order on the first page.
That's what the Supreme Court has decided.
It's not otherwise signed by anybody.
It's just by the majority of the Supreme Court.
Then we have a dissent from justice Alito,justice Thomas, justice Gorsuch, and justice
Kavanaugh, who are all Republican appointees ofthe Supreme Court that says, does a single
(11:21):
district court judge who lack who likely lacksjurisdiction have the unchecked power to compel
the government of the United States to pay outand probably lose forever 2,000,000,000
taxpayer dollars?
Well, that really answers the question for youjust in the way that it's phrased.
The answer to that question should be anemphatic no, says justice Alito, but a majority
of this court apparently thinks otherwise.
(11:43):
I am stunned.
And it was actually this paragraph that drew myattention to wanting to discuss this with you
here in virtual legality, which is to say youdon't usually hear the Supreme Court justices
be this animated, this kind of divisive, in thecontext of an opinion, in the context of legal
rhetoric.
You do hear them take small snipes at eachother usually through footnotes and other
(12:03):
attributes like that, but I am stunned is a lotof harsh language when it comes to a Supreme
Court decision.
Now what does justice Alito say happened here?
In capsule form, this is what happened.
Respondents are a group of American businessesand nonprofits that receive foreign assistance
funds from the State Department and the USAgency for International Development.
(12:24):
That's USAID.
They brought suit and claimed that the currentadministration's temporary pause of foreign
assistance payments is unlawful.
On 02/13/2025, the district court issued atemporary restraining order requiring the
government to halt its funding pause.
It based that decision on a finding thatrespondents are likely to succeed in showing
that the government violated the AdministrativeProcedure Act or APA.
(12:46):
Now that in and of itself is an interestingpiece of the puzzle here because the
Administrative Procedure Act is a law thatrequires the executive branch agencies in
government to do things in various ways.
But there is an open and continuing question asto whether or not the Administrative Procedure
Act and various other aspects of theindependent agency creation framework that has
governed the administrative state in The UnitedStates is constitutional in and of itself.
(13:10):
We talked about that in our earlier episode inWhat the Trump?
Talking about the fact that Trump issued anexecutive order to try to take control of those
independent agencies and suggesting thatCongress was not constitutionally authorized to
have those agencies be as independent as theywere claimed to be.
This is another area in which that is aparticular bit of softness for Congress and
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though Justice Alito isn't acknowledging ithere, it is worth noting that if Congress
doesn't have the authority to provide for theexecutive branch to abide by certain rules like
those in the Administrative Procedure Act, thenthat in and of itself would be an
unconstitutional exertion of power and theSupreme Court is ultimately going to have to
decide that at some point during thisadministration.
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After issuing the TRO, the district judge grewfrustrated with the pace at which funds were
being dispersed, and I highlighted grewfrustrated there because that is a bit of
editorializing from justice Alito.
And on February 25, he issued a second orderrequiring the government to pay out
approximately 2,000,000,000 US dollars.
The judge brushed aside the government'sargument that sovereign immunity barred this
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enforcement order, we'll talk about sovereignimmunity in just a minute, And he took two
steps that unless corrected, would prevent anyhigher court from reviewing and possibly
stopping the payments.
First, he labeled the order as a non appealablet r o, temporary restraining order.
And second, he demanded that the money be paidwithin thirty six hours.
Now, the t r o aspect of this is interestingbecause a temporary restraining order is the
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level below a preliminary injunction.
An administrative say is the level below atemporary restraining order, but a temporary
restraining order is usually designed to keepthe status quo as it is.
Right?
That you are restraining somebody from doingsomething that would change things before a
court can look at it and determine that thatchange would be illegal or otherwise harmful.
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In this particular case, as you can already seejust from how this is described, this
restraint, what the temporary restraining orderis doing, is restraining you from not doing
something.
If you're the US government, it is restrainingyou from not paying out the amounts that are
owed on these contracts.
So it's a little bit of an unusual applicationof the concept of a TRO as it stands.
We'll see justice Toledo harp on that a lotmore as we go through this document.
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Then the government moved for a stay pendingappeal in the district court.
The government quickly filed an appeal in theUnited States Court of Appeals for the District
of Columbia, but with only four hours to sparebefore the payment deadline, the DC Circuit
dismissed the government's appeal because ittook the district court's t r o label at face
value and determined it lacked appellatejurisdiction.
With nowhere else to turn and the deadline fastapproaching, the government asked this court to
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intervene.
At the last moment, the chief justice issued anadministrative stay.
You see references to the fact that justiceRoberts only posted that administrative stay in
the last couple of minutes before the deadlinein a couple of places in this document.
This, I think, is best read as justice Alitobeing effectively legally furious at how the
court has operated on this question.
You don't have to agree with justice Alito.
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I think a lot of this language is maybe a bitsuperfluous and is evidencing a certain amount
of animosity in the way the court operates thatis probably not useful for a belief in the
Supreme Court as deciding body in the future,but reasonable lines can differ on even that.
Nevertheless, at the last moment is unnecessaryto make the sentence work and is designed to
suggest that chief justice Roberts wasreluctant to act on this at all.
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Unfortunately, a majority has now undone eventhat stay.
As a result, the government must apparently paythe $2,000,000,000 posthaste, not because the
law requires it, but simply because a districtjudge so ordered.
As the nation's highest court, we have a dutyto ensure that the power entrusted to federal
judges by the constitution is not abused.
In fact, the Supreme Court, like the president,is the highest power within their branch, the
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judiciary versus the executive, and so they dohave a responsibility to make sure that judges
are doing what they are supposed to be doing.
Today, the court fails to carry out thatresponsibility.
So justice Toledo is pissed.
That is self evident from this document.
It will continue to be self evident as we gothrough it.
To start, it is clear that the district court'senforcement order should be construed as an
appealable preliminary injunction, not a mereTRO.
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A TRO, as its name suggests, is temporary, andits proper role is to restrain challenged
conduct for a short time while the courtconsiders whether more lasting relief is
warranted.
The order here, while commanded the payment ofa vast sum that in all likelihood can never be
fully recovered, is in no sense temporary, nordid the order merely restrain the government's
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challenged action in order to preserve thestatus quo.
Rather, it acts as a mandatory injunctionrequiring affirmative action by the government.
And if we were to rank the ways in which courtsthink about these things, an injunction that
requires you to do something, again, that kindof restraint on not doing something, is the
most difficult, highest threshold of, proofthat you are supposed to have before a court
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requires you to do it.
Because the legal system, and we've talkedabout this in virtual reality before, is pretty
bad at making sure that people do things.
It's okay at making sure that people don't dothings, and it is best at moving money around.
And that is what's happening here is that moneyis moving being moved around, but under the
auspices of an injunction or temporaryrestraining order, which, again, we'll see
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justice Alito object to.
Given its likely irreversibility, the districtcourt's enforcement order effectively gave
respondents a portion of the ultimate reliefthey seek.
They sued to get their money.
They're getting a portion of that money.
For these reasons, the court of appeals hadjurisdiction to consider the government's
appeal, and we have jurisdiction to review andsummarily vacate that court's erroneous
judgment.
And this is important because, again, despitewhat you might see in other articles or other
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reporting on this matter, the Supreme Court didnot reach the merits of what the district court
did.
And so this appears to be a response fromjustice Alito to what was likely a position
held by Roberts and the majority in thisparticular case that they didn't have
jurisdiction to hear the vacation request inany event because this TRO was quote unquote
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non appealable.
So we know Justice Roberts from history likesto avoid political questions for any reason and
finds a hook to hang his hat on fromjurisdictional requirements to standing
requirements and various other reasons thatbother me personally as a lawyer that would
like to see the law cleared up on thesequestions, but that he feels is important to
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help keep the Supreme Court separate from theother branches and to keep their authority and
understanding in The United States all along.
So when we talk about these things, I have arelatively strong disagreement with how Roberts
conducts operations at the Supreme Court as itstands, but that doesn't mean that even if they
found jurisdiction here, the other members ofthe court would have agreed with Alito on his
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analysis, which is to follow.
Even if the majority is unwilling to vacate thedistrict court's order, justice Alito says, it
should at least stay the district court'senforcement order until the government is able
to petition for a writ of certiorari.
In considering whether to issue such a stay, weask at a minimum, one, whether the moving party
is likely to prevail on the merits, and two,whether that moving party is likely to suffer
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irreparable harm.
Said another way, when we look at these things,we are going to look overall at whether the
party that's asking us to do something islikely to win when we get to the whole case,
and then two, whether or not that party that'sasking us to do something would be so harmed by
our failure to act that we can't fix it afterthe fact.
So when you're asking us to do something earlybefore we've heard the whole case, those are
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the two factors that we look at.
In close cases, justice Alito says, we alsotake into account other equitable
considerations.
So on the likelihood of success, justice Alitosays, the government has shown a likelihood of
success on the merits of its argument thatsovereign immunity deprive the district court
of jurisdiction to enter its enforcement order.
Sovereign immunity bars a suit by privateparties seeking to impose a liability which
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must be paid from public funds in the treasury.
And, yes, if you didn't know this already,sovereign immunity basically protects all of
the various governments in The United States,whether that's the federal, the state, or their
local government from being sued by privatecitizens even for things that are done badly by
them as a function of the fact that the courtsystem that you'd be suing them under is also a
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part of the sovereign, that you can't sue thesovereign that runs the courts through the
courts.
And, yes, if that strikes you as immenselyunfair and results in a lot of injustice done
by these various governments, there's a there'sa long history of that, and there are attempts
by congress and other local bodies to let yousue the various governments for things like
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civil rights violations because thoseinjustices were so strong.
But, says justice Alito, this is exactly whatthe district court ordered here.
Or as they say, the restrained defendants shallpay all invoices and letter of credit drawdown
requests on all contracts for work completedprior to the entry of the court's TRO on
February 13.
Sovereign immunity may be waived, justice Alitonotes, but to sustain a claim that the
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government is liable for awards of monetarydamages, the waiver of sovereign immunity must
extend unambiguously to such monetary claims.
So like I said, Congress has passed laws thatallow you to sue for things like civil rights
violations, and they do it expressly in blackletter law within that law that says you can go
and get money from the government for aviolation of this type.
Attempting to satisfy this strict requirement,respondents point to the APA's waiver of
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sovereign immunity for certain actions seekingrelief other than money damages.
That language, as we have explained,distinguishes between specific relief, that's
relief that requires somebody to do something,which is permitted under the APA, and
compensatory or substitute relief, that'smonetary relief, which is not.
But the relief here more closely resembles acompensatory money judgment rather than an
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order for specific relief that might have beenavailable in equity.
So one of the things that's noteworthy herefrom a legal perspective is that what this
temporary restraining order that was issued bythe lower court sought to do was not so much
say that you owe x amount of dollars 1 way orthe other, but to mandate that you do
something.
To mandate that as the government, you pay yourcontracts, you pay your drawdown request, you
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do these various things, and then claim thatthat falls outside of sovereign immunity
because it's an order to do somethingspecifically, not an obligation from a monetary
perspective.
It's a little bit of legal wrangling, a littlebit of plate spinning from the court that
justice Toledo, I think, has a strong argumenthere against to say that that isn't what we're
talking about as specific relief.
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That is essentially just monetary relief thatyou have described in a different way.
Or as he quotes from this other precedent, aninjunction to compel the payment of money past
due under a contract or specific performance ofpast due monetary obligation was not typically
available in equity under the powers of a courtto order somebody to do something or refrain
from doing something.
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Hoping to escape this conclusion, respondentspoint to a case called Bowen.
In that case, we held that the APA's waiver ofsovereign immunity covered a district court's
judgment, reversing a final order of thesecretary of health and human services refusing
to reimburse Massachusetts for certain Medicaidexpenditures.
Unlike the district court's order here, thatjudgment did not purport to order that any
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payment be made by The United States.
Indeed, we have since clarified that Bowen hasno bearing on the unavailability of an
injunction to enforce a contractual obligationto pay past money due.
The sort of relief that appears to have beenordered here.
The district court, however, failed to mention,much less reckoned with, Bowen or Knudson
before plowing ahead with its $2,000,000,000order.
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Again, plowing ahead is a little bit ofeditorializing from justice Alito.
Nor did it take account of our previoussuggestion that the proper remedy for an
agency's recalcitrant failure to pay out may beto seek specific sums already calculated and
past due in the court of federal claims, Thatyou can, in fact, sue under a different law
passed by Congress for a breach of contract.
You did something, you did work for them, theydidn't pay you.
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That's different than being ordered to pay inthis particular context under the law.
Finally, the government has a strong argumentthat the district court's order violates the
principle that a federal court may not issue anequitable remedy that is more burdensome to the
defendant than necessary to address theplaintiff's injuries.
In this case, the district court's enforcementorder functions as a universal injunction
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defying these foundational limits on, like,equitable jurisdiction.
Now what does he mean by any of this?
The district court ordered the government topay all invoices and letter of credit drawdown
requests on all contracts for pre t r o work.
That order encompasses more than justrespondents, more than the people suing.
And the district court offered no reason whyuniversal relief to non parties is appropriate
here.
And this is not the sort of case in which onlyuniversal relief is feasible.
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Nobody has suggested that the government isunable to identify respondents allegedly owed
funds and payout only to them.
Limiting the scope of relief in that mannerwould be significant.
Below, the government represented respondentsseek roughly 250,000,000 US dollars.
Still a large figure, but a fraction of the$2,000,000,000 ordered.
So what he's saying here is that the SupremeCourt and all courts in The United States
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constitution are only allowed to opine, onlyallowed to do things with respect to cases or
controversies before them, which means thatthey are only supposed to provide relief,
redress, however you wanna frame it from alegal perspective, to the parties in front of
them.
This was instead a kind of universalrequirement to pay out everything that happened
before the TRO was issued, and that's going tonaturally encompass people that are not before
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the court.
So I think this is a stronger argument fromjustice Alito than some of the others that we
have already seen.
There are problems with what justice Alito hasalready offered.
But, again, the Supreme Court did not agreewith any of this.
This is a dissent.
This is not the order of the Supreme Court, andso justice Alito is on the wrong side of this
particular opinion.
The government has shown that it is likely tosuffer irreparable harm if the district court's
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order is not stayed.
Now here, I wanna point out that I think thisis effectively wrong.
The The government has represented that itwould probably be unable to recover much of the
money after it is paid because it would bequickly spent by the recipients or dispersed to
third parties.
Response did not credibly dispute thisrepresentation, and the district court did not
find that it is incorrect.
So the notion here, again, is that we shouldput our own stay in place.
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We should prevent the district court fromrequiring these payments if the government is
likely to succeed on the merits of theirargument, and they would be irreparably harmed
if we didn't do this.
And this is the part where he's trying toestablish there is irreparable harm.
The problem he has is that because he's alreadystated that this is more of a monetary
compensation issue than a specific performanceone, it's very difficult to find irreparable
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harm.
Why?
Because irreparable harm is summarized here bythe Cornell Law School is a legal term that
refers to harm or injury that cannot beadequately compensated or remedied by any
monetary award or damages that may be awardedlater.
So justice Alito here steals a base.
It's clear that if the government pays out xamount of dollars, then it would be easy enough
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to redress that particular harm to them bypaying them back that amount of money, perhaps
with interest, however you would wanna seethat, if the government ultimately wins the
day.
Instead, justice Alito says, well, that money'sgonna be spent.
It's gonna be gone, and so the money might notever make it back into the government's
treasury, and so that's irreparable harm.
But that's not how money works.
The lossy's money is fungible.
It doesn't mean that you have to have thehundred dollars that was paid to you to give
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back.
You can spend that, and as long as you can getthat hundred dollars from a different source
and pay the government back, then thegovernment is going to seek that redress.
It also isn't the case that these entities inand of themselves have to be the ones that pay
them back with only their current operatingfunds.
Right?
They can go get a loan.
There are any number of ways that money couldbe acquired here that could pay the government
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back.
Now, it does seem unlikely that these variousparties can collect $2,000,000,000.
It would be very difficult to do.
But when we talk about irreparable harm underthe law, we almost always aren't talking about
monetary payments because monetary payments arethe thing that we think that the law can fix
the easiest.
We usually balance the equities and weigh therelative harms in close cases, says justice
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Alito.
For the reasons I've explained, this is notsuch a case.
I don't see this as close at all, and ouranalysis could end there.
Nevertheless, respondents' equitable argumentsare insufficient anyway.
They contend that the failure to pay the moneyin question would cause them irreparable harm,
that's why they get this order at the lowercourt level, because without those funds, they
could not continue to operate or would have toreduce the work they do.
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As a result, they claim, recipients of theirservices would suffer.
These potential consequences are, of course,serious.
But any harm resulting from the failure to pay,amounts that the law requires would have been
diminished, if not eliminated, if the Court ofAppeals had promptly decided the merits of the
government's appeal, which it should not havedismissed.
That's fine, but it's the ifs and buts werecandy and nuts kind of notion of legal
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reasoning.
They could still be harmed here regardless ofwhat the Court of Appeals should have done,
justice Alito.
This is by far the weakest section of hisargument, and I think it suffers from major
issues there.
If it decided in favor of respondents, thegovernment would be obligated to pay all the
money that is due, and respondents would havesuffered only a short delay in their receipt of
payments.
And how that argument doesn't also apply to thegovernment is unclear.
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And if the government prevailed on itssovereign immunity argument, which he thinks is
a short winner, neither respondents nor any ofthe recipients of their services would have
suffered any unlawful consequences because theyweren't owed any of this money anyway.
In sum, the factors we consider in decidingwhether to issue a stay weighs strongly in
favor of granting that relief.
Today, the court makes a most unfortunatemisstep that rewards an act of judicial hubris
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and imposes a $2,000,000,000 penalty onAmerican taxpayers.
The district court has made plain itsfrustration with the government, and
respondents raised serious concerns aboutnonpayment for completed work.
A federal court has many tools to address aparty's supposed nonfeasance.
Self aggrandizement of its jurisdiction is notone of them.
I would chart a different path that the courtdoes today, so I must respectfully dissent.
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So overall, I think justice Alito has a tenableposition to say that the district court
overreached in its universal application ofthese rules and that the Supreme Court should
be more concerned about district courts and howthey operate than it seems to be right now.
But the overall argument that he makes for whythis should be vacated, why the merits would be
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won by the government on this particularquestion, I think are fairly weak.
So looking at this holistically, I see adecision or non decision by the Supreme Court
that is effectively one that says we don't likethe way the district court operated or at least
from the dissent's point of view, and so theyshouldn't be allowed to operate that way.
And they have some reasons for why thatshouldn't be the way that the court system
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operates, But the actual argument for why thecourt should have vacated the lower court's
decision is the weakest part of thisconversation.
Also, I don't think because the Supreme Courtdidn't otherwise speak on this matter that the
Supreme Court has one position or another onthe merits of the underlying district court's
order.
I think it's more likely that justice Robertsand justice Barrett and the others that are
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forming the majority of this decision looked atthis and said, well, this is a political
question.
This is a thorny bush for us to enter into.
It's not at all obvious that we have the rightof it if we did enter into it, and it's easy
enough for us to say, well, it's notappealable.
We shouldn't be looking at this anyway.
We are going to abdicate our responsibilitieson this particular question.
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And I think that's what justice Alito isresponding to more than anything.
He's been on this court for a long time.
He's seen justice Roberts operate the court inthe way that he does.
And at the end of the day, I think this anger,the animosity that you can read between the
lines of this particular decision is justiceAlito getting sick of justice Roberts kicking
these important decisions down the road towhere they are potentially more harmful to more
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parties, and this is a reaction to that.
What it isn't is the Supreme Court upholdingthe lower court's decision, and it also isn't a
constitutional crisis.
So So you'll also see reporting a lot duringthis administration about what represents a
constitutional crisis or not.
I wanna use a definition here so that we cantalk about about it a little bit more
fulsomely.
In political science, as described byWikipedia, which I don't recommend for any
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political questions whatsoever, aconstitutional crisis is a problem or conflict
in the function of a government unit that thepolitical constitution or other fundamental
governing law is perceived to be unable toresolve.
So we have all these rules and ways that theconstitution of The United States works.
You see me continue to refer to them Here invirtual legality, the argument here is that
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what is happening is something that theconstitution doesn't otherwise have an answer
for, doesn't have an understanding for.
And constitutional crisis at its most baselinelevel might be when the president refuses to
agree to a Supreme Court decision, refuses toperhaps pay out this $2,000,000,000, and then
congress refuses to impeach.
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But even including that congress refuses toimpeach part explains why this is not, at this
present moment in time, a constitutional crisisof any fundamental level.
Because even if president Trump and hisadministration or Elon Musk or whoever you
wanna blame for these various things, were torefuse the district court's order to make these
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payments on the timeline that is set forthwhenever that decision is made.
Congress still has the opportunity to impeachthe president for failure to faithfully execute
the laws.
And just because Congress doesn't do that, ifthey don't do it in fact, doesn't mean that
democracy or the notion of the constitution hasfailed.
That's one of those areas where I really getmore interested in how people are talking about
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these things because I think too many of ourleaders, too many of our politicians look at
questions of, I don't like the way this policywent, I don't like the way the government did
this thing or didn't do this thing, and that'sa failure in democracy.
To the extent that impeachment requires therepresentatives of the people to actually take
an act against another elected official likethe president, that is democracy in action.
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And if you didn't get the result that youwanted, that doesn't make it undemocratic.
That simply makes it a result that the otherrepresentatives, the majority of
representatives didn't agree with you on.
And I understand how that can feel like itsucks.
I haven't had a single government in mylifetime, I think, that I agree with even the
majority of the actions that they have taken.
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And yet, that doesn't mean that democracy hasdied.
So when Elon Musk posts things like, what isthe point of having democratic elections if
unelected activist judges can override theclear will of the people?
It's important to remember that those judgesare put in their positions through the
democratic process, that there are appointmentsmade at the Supreme Court level.
The Supreme Court makes certain decisions onhow the district courts are to operate.
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And just because you disagree with them doesn'tmean that democracy has failed or is at risk of
failing or that we're in the midst of aconstitutional crisis.
Or as I said to mister Musk on Twitter, inshort, the will of the people is set forth in
our constitution which itself provides for theappointment of judges, and this is important
now, the limited powers of our government.
So I'm sure I didn't win any friends with a lotof the posters on Twitter with respect to this
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question, but Elon Musk does this a lot and Iwanna point out that just because something
isn't going the way that you want it to ifyou're a United States citizen, it doesn't mean
that democracy has failed.
Or said another way, this stuff is complicated.
And only a few days ago on the NationalConstitution Center website, and I didn't look
at the politics here.
I just looked at this article, which I thoughtwas relatively neutral.
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They asked, can a president refuse to spendfunds approved by Congress and came up with all
sorts of analysis?
The process in which the president withholds ordelays spending on programs authorized by
Congress is called impoundment.
This practice dates back to the thirdpresident, Thomas Jefferson, and it has at
times been controversial because theimpoundment of funds can put the executive and
legislative branches in conflict.
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There is tension there.
Right?
When you learn about checks and balances ingrade school, it didn't mean that there was
never tension between the branches.
That's the design of the US government.
So there's tension, but that doesn't itselfmake a crisis.
As we already talked about, article one,section eight, and section nine talk about how
congress is supposed to be able to account fordebts and apportion things to what it wants to
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apportion, but that that's intention with thetake care clause of the executive's requirement
to take care that the laws are faithfullyexecuted.
The most noted example of a conflict overimpoundment took place in the nineteen
seventies.
This is gonna sound familiar to you, whenpresident Richard Nixon refused to spend funds
on numerous programs approved by Congress.
During public hearings on the matter in 1973,Nixon's critics said the president was using
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his impoundment powers to effectively vetoprograms by cutting off their funds.
President Nixon's supporters believed thatNixon was managing funds in an inflationary
environment using his take care powers.
They argued that essentially take care of thelaws are faithfully executed required him to
make sure that money wasn't being wasted.
The president's obligation to faithfullyexecute the laws plainly includes, says this
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attorney general, an obligation to preventwaste.
Impounding to save the taxpayers' dollar hasalways had the full support of Congress.
Congress passed the Congressional Budget andImpoundment Control Act of 1974 in response to
the controversy.
So Congress, as we noted above, said, we aregoing to pass a law that requires the executive
to do things in various ways just like the APA,just like the other things that we've talked
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about already in virtual reality.
This is an open question in the presentpolitical context because we don't quite know
the bounds of what congress can require of theexecutive branch.
Title 10 in this act in 1974 is commonlyreferred to as the Impoundment Control Act, and
it requires the president to report to congresswhen he impounds funds as a deferment, a
temporary delay, or a rescission, a permanentcancellation of spending.
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The Supreme Court considered the impoundmentquestion in 1975 after the ICA was passed.
The city, New York, sued after it did notreceive funds allocated to it under the Federal
Water Pollution Control Act amendments.
President Nixon had vetoed the bill, butCongress overrode the veto.
Nixon then reduced program spending.
In his unanimous opinion, justice Byron Wrightwrote that the sole issue before us is whether
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the 1972 act permits the administrator to allotto the states less than the entire amounts
authorized to be appropriated.
We hold that the act does not permit suchaction and affirm the court of appeals.
The congress wins this round because they havethe power of the purse and that the executive
cannot just withhold funds, which is what is atissue here.
Another effort to give the president moreflexibility in controlling how funds allocated
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by Congress are spent was the Line Item VetoAct of 1996.
The act amended the ICA to authorize thepresident to cancel in whole any dollar amount
of discretionary budget authority, any item ofdue direct spending, or any limited tax
benefits signed into law.
You might remember this if you were around inthe nineteen nineties, but Bill Clinton used
the line item veto 82 times during its briefexistence, spoiler alert, with congress
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restoring 39 appropriations.
In Clinton versus the city of New York, theSupreme Court struck down the line item veto in
a six three decision.
Justice John Paul Stevens said that under theconstitution's presentment clause in article
one section seven, the president must approveor reject a bill as presented to him by
Congress in its entirety.
He can't amend things.
He can't revise things.
Line item vetoes do that, and so he doesn'thave that authority, and it was rejected as
(40:12):
unconstitutional.
There is no provision in the constitution thatauthorizes the president to enact, amend, or
repeal statutes, he concluded.
Justice Stephen Breyer, joined by justicesSandra Day O'Connor and Antonin Scalia,
believed the one item veto act wasconstitutional.
Again, not a constitutional crisis.
These are just legal minds thinking through howthe bounds of congressional and executive
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authority when they clash might otherwise befixed.
The act represents a legislative effort toprovide the president with the power to give
effect to some, but not all, of the expenditureand revenue diminishing provisions contained in
a single massive appropriations bill, and thisobjective is constitutionally proper, said the
dissent.
Right?
That's not the law of the land.
That's the dissent.
In recent years, the first Trump administrationand the Biden administration faced questions
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when spending on certain programs was paused,including delays related to to spending in The
Ukraine and on the border wall.
Today, as the OMB continues to review federalspending programs, more questions about the
roles of Congress and the president in thespending process are likely to occur.
Indeed, and they're likely to continue to occurthroughout this administration, which as I
said, is animated by the notion of movingquickly and breaking things, and the Supreme
(41:19):
Court is very much animated by the oppositenotion.
So when it is pressed for things likeadministrative stays on very tight timelines
and making decisions on even tighter timelines,it is unlikely that you are going to see the
Supreme Court side with the moving fast andbreaking things contingent, whether that's
bearing a Republican or Democratic colorationscheme.
(41:40):
That's my opinion.
You don't have to agree with it, but I thinkthat's what you're more likely to see, and I
think that is what you see with the SupremeCourt acting in the way that it does in
Department of State versus AIDS vaccineadvocacy coalition.
So, that's been virtual reality for today.
I hope it was informative and informational.
If you like content like this, please considersupporting the channel at Patreon on the links
provided in the description by havingmemberships to the channel, by putting forth
(42:04):
super chats during live streams, or if none ofthat appeals to you, just subscribing, liking,
disliking, whatever floats your boat in termsof clicking on Google's various buttons and
telling your friends that we are having theseconversations.
Last but not least, leave comments to thesevideos or comments to the podcast versions of
these videos.
Let me know what you think.
I try to respond to as many as I can as quicklyas I can.
(42:25):
What do you think of this decision?
What do you think of the acts of presidentTrump?
What do you think of the acts of the districtcourt operating here?
What do you think of the acts of John Robertsand the Supreme Court?
There's lots of layers to untangle here withrespect to all of these various legal
questions.
And do you think there's a constitutionalcrisis here or pending on any or all of this?
Thank you so much for joining me in virtuallegality, and I look forward to seeing you in
(42:46):
the next one.
Virtual Legality is a YouTube video series withaudio podcast versions presented as commentary
and for education and entertainment purposesonly.
It does not constitute legal advice and doesnot create an attorney client relationship.
If you have legal questions about the topicsdiscussed, please consult your own legal
(43:07):
counsel.
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