(image
via
Getty
Images)
Everyone
knows
that
TROs
aren’t
immediately
appealable.
What
this
appeal
assumes
is…
maybe
they
are?
The
Trump
DOJ
has
taken
an
unorthodox
procedural
stance
with
respect
to
interlocutory
appeals.
They
seem
to
be
under
the
impression
that
they’re
able
to
lodge
them
at
any
point
when
a
judge
issues
a
ruling
they
don’t
like.
For
people
who
spend
so
much
time
shitting
on
New
York,
they
sure
are
keen
to
co-opt
its
procedures!
This
morning
the
government
filed
a
notice
of
appeal
to
the
DC
Circuit
in
Harris
v.
Bessent,
a
case
where
a
recently-fired
member
of
the
Merit
System
Protection
Board
is
contesting
her
termination.
Trial
Judge
Rudolph
Contreras
issued
a
temporary
restraining
order
just
two
days
ago
and
scheduled
the
hearing
on
the
motion
for
preliminary
injunction
on
March
3,
inside
the
14-day
statutory
period.
And
yet
the
government
is
now
demanding
both
that
the
DC
Circuit
pay
attention
to
it
TODAY,
and
that
Judge
Contreras
stay
his
own
order
that
Cathy
Harris
be
reinstated,
which
they
call
an
“extraordinary
intrusion
into
the
President’s
authority.”
This
is
part
of
a
pattern
from
the
new
administration,
which
takes
the
position
that
the
Federal
Rules
of
Civil
Procedure
don’t
really
apply
to
the
president
and
his
minions.
On
February
10,
they
noticed
an
appeal
of
Judge
John
McConnell’s
January
31
TRO
blocking
Trump’s
blanket
ban
on
federal
spending
that
makes
his
ass
itch.
In
that
case,
the
First
Circuit
seemed
highly
dubious
that
they
had
jurisdiction
over
something
that
wasn’t
even
decided
at
the
District
Court
level,
but,
assuming
arguendo
that
they
did,
rejected
the
motion.
Most
egregiously,
the
administration
immediately
appealed
an
administrative
stay
imposed
by
Judge
Amy
Berman
Jackson
on
February
10
in
the
case
of
Hampton
Dellinger,
the
head
of
the
Office
of
Special
Counsel,
who
was
also
fired
in
violation
of
the
statute.
The
DC
Circuit
dismissed
that
appeal
for
lack
of
jurisdiction,
although
Judge
Gregory
Katsas
allowed
himself
a
lengthy
concurrence
in
which
he
rubbished
Dellinger’s
claim
while
simultaneously
expressing
“no
view
on
the
appealability
or
merits
of
any
later
order
granting
interim
relief
to
Dellinger.”
Judge
Jackson
issued
a
TRO
on
February
12,
and
the
government
appealed
again
on
the
13th,
requesting
either
a
stay
of
the
trial
judge’s
order
or
that
the
appeals
court
treat
the
motion
as
a
petition
for
mandamus.
The
case
went
to
the
same
panel,
and
again
Judge
Michelle
Childs
and
Florence
Pan
tossed
it
for
being
totally
out
of
order.
“Because
it
would
be
inconsistent
with
governing
legal
standards
and
ill-advised
to
hold
that
a
TRO
is
appealable
based
solely
on
unsubstantiated
claims
of
‘extraordinary
harm’
for
fourteen
days,
we
decline
to
treat
the
TRO
as
an
appealable
injunction,”
they
wrote.
“Nor
has
the
government
established
its
entitlement
to
the
extraordinary
remedy
of
mandamus.”
This
time,
Judge
Katsas
penned
an
eleven-page
dissent
explaining
that
“the
President
is
immune
from
injunctions
directing
the
performance
of
his
official
duties,
and
Article
II
of
the
Constitution
grants
him
the
power
to
remove
agency
heads.”
This
works
from
the
assumption
that
Humphrey’s
Executor,
the
1935
Supreme
Court
case
which
allowed
for
statutory
protections
for
executive
branch
officers
is
fully
dead,
instead
of
just
mostly
dead
after
Seila
Law.
Which
it
might
be!
But
as
the
Supreme
Court
hasn’t
actually
made
it
official
yet,
it
seems
a
bit
presumptuous
to
treat
it
as
a
fait
accompli.
Or
as
Judge
Jackson
put
it:
Defendants’
position
is
that
the
statutory
restrictions
on
the
Special
Counsel’s
removal
are
unconstitutional.
They
are
eager
to
have
that
issue
heard
and
resolved
by
a
higher
court.
They
will
have
that
opportunity
in
due
course,
but
first,
the
issue
has
to
be
fully
briefed
in
this
Court,
where
the
case
is
pending.
There
has
to
be
a
hearing,
and
this
Court
has
to
issue
an
appealable
order.
And
indeed,
the
government
is
so
“eager
to
have
that
issue
heard”
that
it
has
now
stomped
into
the
Supreme
Court
and
demanded
an
administrative
stay
of
the
trial
judge’s
TRO.
John
Sauer,
President
Trump’s
personal
lawyer,
has
not
yet
been
confirmed.
But
acting
SG
Sarah
Harris
was
not
subtle
about
asking
the
Court’s
conservatives
to
declare
the
president
above
the
law
the
way
they
did
in
July:
This
case
involves
an
unprecedented
assault
on
the
separation
of
powers
that
warrants
immediate
relief.
As
this
Court
observed
just
last
Term,
“Congress
cannot
act
on,
and
courts
cannot
examine,
the
President’s
actions
on
subjects
within
his
‘conclusive
and
preclusive’
constitutional
authority”—including
“the
President’s
‘unrestricted
power
of
removal’
with
respect
to
‘executive
officers
of
the
United
States
whom
[the
President]
has
appointed.’”
Trump
v.
United
States,
603
U.S.
593,
609
(2024)
(citation
omitted).
As
to
such
principal
officers—“the
most
important
of
his
subordinates”—“[t]he
President’s
‘management
of
the
Executive
Branch’
requires
him
to
have
‘unrestricted
power
to
remove’
them
‘in
their
most
important
duties.’”
Id.
at
621
(citation
omitted).
Enjoining
the
President
and
preventing
him
from
exercising
these
powers
thus
inflicts
the
gravest
of
injuries
on
the
Executive
Branch
and
the
separation
of
powers.
Perhaps
counting
on
the
justices’
long
separation
from
the
slums
of
trial
practice
and
amnesia
regarding
FRCP
65,
Harris
affected
indignation
that
“The
court
set
that
TRO
to
last
a
full
14
days
and
specified
that
a
hearing
on
an
‘appealable’
order
would
not
be
held
until
February
26.”
As
of
this
writing,
the
Court
has
offered
no
relief.
But
this
aggrieved
flopping
worked
for
Sauer
the
last
time
so
…
who
even
knows.
Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.
