Why the Supreme Court’s “Order” In The USAID Case Was An Advisory Opinion (Updated)
I wrote a series of posts about the Supreme Court’s decision in the USAID case. Most of the critics focused on my criticisms of Justice Barrett, but as could be predicted, they completely missed why I was criticizing Justice Barrett.
Here are the facts. The Solicitor General made two requests. First, the government sought an immediate administrative stay of the District Court’s ruling. Second, the government sought to vacate the order issued by the District Court. Chief Justice Roberts promptly granted the temporary administrative stay. A week later, the Court, by a 5-4 vote, vacated the temporary administrative stay. The Court also denied the government’s application.
Consider what the Court stated:
THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. 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 order heretofore entered by THE CHIEF JUSTICE is vacated.
Justice Alito dissented from the denial of the application to vacate the order:
JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, dissenting from the denial of the application to vacate order.
I see three significant problems with the majority “order,” if I can even call it that.
First, if the only action taken was to vacate the temporary administrative stay, what basis is there to instruct the District Court on how to take some action in the future: “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 Court vacates a stay because the Court declines to exercise further supervision of the lower court. By vacating the stay, the Court eliminates its power to supervise the lower court.
Second, given that the Court denied the government’s motion, it is not clear how it would have jurisdiction to say anything at all about the case. The Court has jurisdiction under the All Writs Act by granting relief to an aggrieved party. The Court cannot exercise the judicial power in the abstract, without even granting the writ. The Supreme Court lacks any sort of free-floating authority to issue commands or suggestions.
Third, if the Court is giving an instructi
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