Thread by @ProfMJCleveland

🚨🚨🚨Federal judge (Obama-appointee) enters TRO (Temporary Restraining Order) over Trump Administration's freeze of federal spending. 1/

2/ Full opinion. Analysis following. storage.courtlistener.com/recap/gov.usco…

3/ This introductory paragraph exposes the Court's activism: A Court doesn't issue a TRO based on undefined "pauses" where complaint was specific--it challenged OMB Directive which is no more.

4/ This passage shows Court remains focused on OMB Directive which no longer exists.

5/ And here Court acts as if we know what was "paused," that it was paused in violation of statutes, and that that pause hurt THESE plaintiffs. The Complaint lacks any allegations showing any of these details.

6/ Here, the flaw is even more clear: States "assert" pause applies, but WHAT pause? The OMB Directive is no longer in place. So what "pause" did Executive Branch implement that affects these? Court doesn't say.

7/ The one actual pause Court cites is based on email stating there was a pause of HIDTA programs. BUT there is no discussion in opinion whether this push is in excess of Executive Power. DID Congressional statute MANDATE this specific spending?

8/ That was the ONLY specific "pause" discussed: Court instead instead hypothesized that pause of emergency relief could hurt California & N.C. victims of fire/hurricane or health care programs in other stats. Again, NO reference to ANY specific action that paused those programs

9/ And no analysis of whether funding there was mandated by Congress, i.e. earmark. Court instead speaks generically about abrupt "pause" "will cause a ripple effect" w/o identifying what "pause," on what spending & what violation of what part of constitution.

10/ In discussing "balancing of equities," Court strangely references OMB Directive and preventing government from enforcing that Directive, which again doesn't exist. (Note: I'm posting as I read so maybe court addresses).

11/ So, in unbelievable conclusion, Court holds the OMB Directive remains in effect based on Press Secretary's statements that President's EOs remain in effect AND an email from EPA which references OMB Directive--likely wrongly.

12/ So, the Court, seems to, in essence hold the OMB Directive remains in effect even though it has been rescinded. Court then enjoins Trump Adm. as shown ⬇️. Couple of problems: "except" means Trump can do just what he's doing if he interprets statute as allowing.

13/ And Court has absolutely no power to tell Executive Branch it can't reissue another EO or Directive as it did. If it does, that can be challenged. Problem is TROs usually cannot be appealed. Nonetheless, Trump Admin. will try to appeal maybe by filing mandamus.

14/ Mandamus is where you ask a court of appeals to order a lower court to do something. There are also some ways around bar on TRO appeals I believe but not up on those. But I predict Trump will just ignore where he would have froze spending & do so on basis of EO.

15/15 We're less than 2 weeks into Trump's term. Left will continue litigation to stop him: They might have good arguments that Trump violated Separation of Power if it was mandated by statute but the Court's global decision is bonker.