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The Supreme Court granted the government’s application for stay of the district court order reinstating terminated FTC Commissioner Rebecca Slaughter and granted certiorari before judgment in the case. (NYT.) (Order.) Justice Kagan for three justices dissented. Chris Geidner criticized the order. (Law Dork.) Samuel Bray argued there should be a presumption against interim relief when officers fail to sue immediately after being removed by the president, an issue relevant to the Court’s second formulated question presented: “Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.” (Bray’s Draft Paper.) (Divided Argument.)
The Trump administration on Monday filed a petition for rehearing en banc in the Fifth Circuit Court of Appeals concerning a panel’s decision rejecting the president’s invocation of the Alien Enemies Act. The petition argued that the Fifth Circuit panel misinterpreted both Supreme Court precedent and the text and history of the AEA. (Petition.) See a previous Roundup for background.
President Trump appointed Lindsey Halligan, his former attorney, as acting U.S. Attorney for the Eastern District of Virginia after firing Erik Siebert from the position. (NYT.) Paul Rosenzweig argued that the president’s push to prosecute his political foes undermines two norms that historically underlied the DOJ’s work: independence and “bipartisan opposition to politicized justice.” (The Atlantic.) See yesterday’s Roundup for background.
President Trump signed an executive order on Monday designating antifa as a domestic terror organization and threatening “investigatory and prosecutorial actions” against its financial supporters. (NYT.)
Steve Vladeck argued that the birthright citizenship cases have not received much attention recently, likely because the Trump administration has neither refused to comply with court orders nor sought emergency relief in higher courts, a pattern indicative of other lower court cases the government is losing. (One First.)
Pending Interim Order Applications Involving the U.S. Government in the Supreme Court
Noem v. National TPS Alliance: The government filed an emergency application on September 19 requesting the Supreme Court to stay a district court order granting summary judgement that blocked the termination of TPS protection. The application also requested an immediate administrative stay of the judgement while the Court considers the full stay request. The National TPS Alliance filed an opposition to the request on the same day.
Trump v. Orr: The government filed an emergency application on September 19 requesting the Supreme Court to stay an injunction issued by a district court that requires the State Department to allow transgender and nonbinary people to choose the sex designation on their passports.
Trump v. Cook: The government filed an emergency application on September 18 requesting the Supreme Court to stay a preliminary injunction issued by a district court that blocked President Trump from removing Federal Reserve Governor Lisa Cook. Cook filed a response the same day, and the Separation of Powers Clinic submitted an amicus brief supporting the government. The Chief Justice formally set a deadline of September 25 for a response to the application.
Department of State v. AIDS Vaccine Advocacy Coalition: The government filed an emergency application on September 8 requesting the Supreme Court partially stay a district court injunction ordering the Trump administration to spend $4 billion in funds by September 30. The Supreme Court granted the government’s request for a partial stay pending further order of the Court and ordered a response to the government’s application on or before September 12. Respondents Global Health Council, et al. filed a response on September 12, and the Department of State, et al. filed a reply on September 15th.