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1/ Four notes about the SG's new emergency motion to SCOTUS for a stay of the district court injunction against building "Wall."
@steve_vladeck @SCOTUSblog
supremecourt.gov/DocketPDF/19/1…
@steve_vladeck @SCOTUSblog
supremecourt.gov/DocketPDF/19/1…
2/ First, notice how, on p.5 and 35-36, the SG defends the request for a stay by invoking a looming deadline for funding (supposedly 09/30), as in the census case. This time, however, the SG himself doesn't represent to the SCOTUS that that's a real deadline . . . .
3/ Instead, he says only that "According to DOD" ("DOD states," etc.) the $$ will expire. Hence, in the end he represents only that "if the injunction remains
in place, it *may* foreclose DoD’s ability to obligate the funds" and "*may* effectively operate as a final judgment."
in place, it *may* foreclose DoD’s ability to obligate the funds" and "*may* effectively operate as a final judgment."
4/ The technical term for this is "wiggle room." It allows OSG/DOD later to say (ah ha!) that they found other funds if the USG doesn't get the stay and expedited consideration from the Court. Lesson learned from the census case . . .
5/ ... but of course it makes the SG's crying-wolf pleas of an approaching deadline far less effective.
Second, I actually think the SG (and Judge Smith) are correct (see pp. 20-21) that the case doesn't involve a constitutional claim.
Second, I actually think the SG (and Judge Smith) are correct (see pp. 20-21) that the case doesn't involve a constitutional claim.
6/ But it doesn't involve a claim to "enforce statutory prohibitions" (pp. 22-23), either, and therefore the SG's "zone of interests" argument is simply inapposite. Plaintiffs aren't suing to "enforce the conditions" (p.2) of section 8005--instead, ...
7/ they're making a claim that the Secretary acted ultra vires. The 8005 transfer statute is a *defense* to that claim. Therefore the burden of showing that the 8005 conditions are met falls on the Secretary. And thus it simply makes no sense to ask ...
8/ ... whether the Sierra Club falls within 8005's "zone of interests."
Third, the SG's argument about how the "unforeseen military requirement" condition of 8005 is satisfied seems quite weak, ...
Third, the SG's argument about how the "unforeseen military requirement" condition of 8005 is satisfied seems quite weak, ...
9/ largely for the reasons the district court explained at pp. 34-36 of his opinion.
Moreover, it's not obvious this was a *military* requirement--another 8005 condition, but one the trial judge didn't need to reach (see p.36 n.17 of his opinion).
supremecourt.gov/DocketPDF/19/1…
Moreover, it's not obvious this was a *military* requirement--another 8005 condition, but one the trial judge didn't need to reach (see p.36 n.17 of his opinion).
supremecourt.gov/DocketPDF/19/1…
10/ Fourth and finally, I might be wrong here--no party or judge has mentioned it--but doesn't the 8005 condition that the transfer can't be made if Congress has "denied" a budgetary request by not appropriating funds for the function at issue raise a Chadha question?
11/ I expected the SG to mention it, but no. So perhaps I'm missing something.
