Thread by @chrisgeidner

Just digging into this —>

https://twitter.com/bradkjenkins/status/1234162165612937218

Here's the opinion —>

https://twitter.com/bradkjenkins/status/1234169335662465026

A 55-page opinion from Judge Moss, a former OLC lawyer, in this case is going to be A READ.

For those who forget who we got here, first, two big step-back, background notes. Vacancies law, as it stands in the Federal Vacancies Reform Act of 1998, gives (1) a lot of power to the president, and (2) lots of options for who can be appointed to acting positions.

Here's a big story (about Whitaker) that goes into the background of 1: buzzfeednews.com/article/chrisg…

And here's a story (about Sessions) that explains 2: buzzfeednews.com/article/chrisg…

Returning to this case, however, what happened here is reminiscent of the way the Chief Justice talked about the Census case — more or less, "the administration can do a lot, but this is just ridiculous."

Here's what they did with Cuccinelli:

The thing with the FVRA is that the admin has a lot of freedom to do what it wants, within the law, in terms of acting appointments — but if it goes too far, it actually has a very harsh result: All acts of that official "have no force or effect" and "may not be ratified."

So, that's why this case matters. And, in sum, Judge Moss says Cuccinelli, and his actions, are gone: "[T]he Asylum Directives must be set aside."

An appeal is almost certain, so this is not likely the end, but it's also a very strong case made against Cuccinelli's appointment.

Important to note that Moss found that the court lacked jurisdiction to review the policy of ending in-person orientation for asylum applicants solely because the plaintiffs can find no *written* policy ending the orientation.

After addressing jurisdiction (finding jurisdiction over two of the asylum-related policies challenged) and standing (as to individual plaintiffs so did not consider the organizational standing of RAICES), Moss begins addressing the merits at the bottom of 29.

Moss resolves the case NOT on the issue of whether Cuccinelli was in office as first assistant when the vacancy occurred, but instead on the fact that the limitations of his appointment mean that he will never actually be an "assistant" to anyone. Very careful, smart reasoning.

Nothing in the historical record, Moss notes, suggests the "phrase 'first assistant' [should] include those who hold the title of 'first assistant' but occupy an office that, in actuality, was not, is not, and never will be subordinate to the principal office."

Moss goes on to ding DOJ for coming close to misleading the court in their supplemental brief.

After going through the three specific types of "actings" under the FVRA — first ass't or POTUS naming another Senate-confirmed person or a 90-day senior employee of the agency — Moss concludes, "Defendants’ reading of the FVRA would decimate this carefully crafted framework."

When it comes to the remedy, DOJ attempts an argument that the only affected actions should be an extraordinarily limited set of actions that cannot be delegated, even under a general delegation authority granted to the dep't head. Moss disagrees, at pp. 44-50.

So, Moss rules that the two directives are set aside as being issued without legal authority. And the plaintiffs' cannot be removed under current orders, because their credible fear determinations were accordingly invalid.

But, no injunction and no ruling as to others.

As Moss says, though, "To be sure, the Court has concluded that the two directives are invalid and must be set aside."

So, there will be consequences, but it's more of a ripple (with the "likely appeal" caveat) for now than immediately applying to all people and policies.