“Specific Relief Against Sweeping Executive Decrees,” from Prof. James Pfander (Northwestern)
I’m very glad to pass along this item from Prof. James Pfander about Department of State v. AIDS Vaccine Advocacy Coalition, a subject on which I’m not an expert but he is:
In Department of State v. AIDS Vaccine Advocacy Coalition (March 5), the Supreme Court refused to stay a federal district court order directing the executive branch to make payments of foreign aid money duly appropriated by Congress and, as the district court ruled, wrongly frozen by an order of the President. The Court issued the order as part of its emergency docket, without explanation. But the order drew a sharp dissent from four Justices that raises important questions about district courts’ power to remedy the federal suspension of payments under existing appropriations.
Writing for the dissenters, Justice Alito (1) questioned the propriety of the order’s operating for the benefit of parties who had not appeared in the litigation (2) and characterized the district court’s actions as likely outside its jurisdiction and violative of federal sovereign immunity. Here, I will address the jurisdictional and immunity issues.
To get at those issues, we might begin by acknowledging some tension in the Court’s definition of federal judicial power to grant equitable relief of the kind at issue in the district court. In one line of cases, headlined by the private-law decision in Grupo Mexicano (1999), the Court defined federal equity power in historic terms, looking to the practice of the High Court of Chancery in England during the founding era for guidance.
In a second line, exemplified by the public-law decision in Armstrong v. Exceptional Child Center (2015), the Court explained federal equity power as the continuation of a tradition of judicial control of executive action that took root in England in the seventeenth century. That tradition was administered by the courts of common law, deploying such writs as mandamus, prohibition, certiorari, and quo warranto. The Armstrong Court thus offered a more dynamic conception of federal equity today than Grupo might support. In other post-Grupo cases, the Court has proceeded on the assumption that federal courts have broad power to enjoin unlawful federal action, even in new settings. E.g., Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).
The Department of State dissenters emphasized the Grupo line. But Grupo arose as a private law dispute that was brought in federal court on the basis of diversity of citizenship and did not implicate government compliance with law. The dissenters did not consider the possibility that common law practice, as later subsumed by federal equity, may have provided substantial support for the exercise of district court power in public law litigation. Had they done so, as Armstrong suggests, they would have encountered a nineteenth-century decision upholding a lower c
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