| | | A couple of truth bombs about today's decision by SCOTUS on the TRO issued by Judge Ali:
The DOJ never appealed the original TRO entered by him. Rather than do that, they opted to "maneuver" around thru a hole he left in his order that allowed them to rely on statutes/regs/ contract terms to delay making the payments.
Right or wrong - they didn't appeal his decision outright, which is one of the things the Plaintiff's pointed out to the Supreme Court. The only appeal was of his Feb. 25 Order that the payments be made by Feb. 26 at 11:59 pm.
Second, Roberts stepped in when there were 2 hours left and there was much uncertainty about whether the payments could be made as directed by Judge Ali on a logistical basis.
That issue is dealt with by today Order.
Judge Ali is directed by the Order to be specific about what claims his order covers and he needs to consider the logistical problems of making the payments in fashioning a new order.
"Given that the deadline in the challenged
order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due
regard for the feasibility of any compliance timelines."
The Govt will surely appeal any subsequent order that directs it to pay parties who are not before the Court.
So, don't read more into the Order than is there.
Yes, it would have been nice for the Court to simply vacate the TRO. But that would not have solved the problem. As the Order notes, the Preliminary Injunction proceedings are ongoing.
The briefing on that is complete and a hearing was supposed to take place yesterday. I expect Judge Ali will now hold that hearing since his TRO expires on 3/10 -- 5 days.
The jurisdictional issues are raised in the briefing so Judge Ali is going have to confront them as part of any decision he makes.
None of that was before the SCOTUS in a properly briefed form.
Roberts always prefers regular order. He stepped in because the order to pay by 11:59 that night was the problem.
The other issues can all be dealt with in regular order -- let Judge Ali enter his TRO, the Govt appeals the TRO to the Circuit Court, and then the case gets to SCOTUS on the merits.
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