SCOTUS to Inferior Courts: Review TROs That Function As Preliminary Injunctions
Department of Education v. California sends a clear signal to the lower court: review TROs that function as preliminary injunctions. If there is any reason that Justice Barrett decided to change her position, this might be it.
The majority opinion offers this new standard:
Although the Courts of Appeals generally lack appellate jurisdiction over appeals from TROs, several factors counsel in favor of construing the District Court’s order as an appealable preliminary injunction. Among other considerations, the District Court’s order carries many of the hallmarks of a preliminary injunction. See Sampson v. Murray, 415 U. S. 61, 87 (1974); Abbott v. Perez, 585 U. S. 579, 594 (2018).
The Court doesn’t really explain what those “hallmarks” are. Nor does the Court explain how many of those “hallmarks” are created to cross the threshold from TRO to PI. This sentence will be scrutinized by lawyers, and minimized by inferior court judges.
Justice Kagan seems annoyed that the Court is making this ruling on the emergency docket.
But in my view, nothing about this case demanded our immediate intervention. Rather than make new law on our emergency docket, we should have allowed the dispute to proceed in the ordinary way. I respectfully dissent.
But where else can this ruling be made? If the case is appealed through the normal course, there will be no basis to decide if a TRO should be appealable. The only time to decide this question is now. And so the Court decided.
The Court also signaled, loud and clear, that challenges to spending belong in the Court of Federal Claims. There simply is no jurisdiction in federal district court to hear these cases.
Moreover, the District Court’s “basis for issuing the or
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