137. Three (Quick) Reactions to the Education Grants Ruling

The Court's 5-4 Friday afternoon ruling is unquestionably a win for the Trump administration. How *big* a win will depend a lot upon what happens next.

Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

I wanted to put up a (very brief) post this afternoon in light of the Supreme Court’s ruling in Department of Education v. Louisiana, in which a 5-4 majority voted to “stay” a Massachusetts district court ruling that had itself ordered the federal government to continue to pay out approximately $65 million in teacher training grants that the Trump administration had claimed the authority to cut off. (In other words, the Supreme Court’s decision puts the grant cut-offs back into effect.) I know non-lawyers get annoyed at such complicated sentences, but it’s important to describe exactly what the Court did (and didn’t) do. The upshot is that, for now, the cut-offs of these grants can continue, but the lawsuit challenging them can go forward, too.

There’s a very brief “per curiam” (unsigned) majority opinion¹ that basically says two things:

First, the Court concluded that, even though most temporary restraining orders can’t be immediately appealed (because they’re so brief in duration), this one fell into the small category of such rulings that can be.

Second, the Court explained that it was granting a stay because the Trump administration is likely to succeed “in showing the District Court lacked jurisdiction to order the payment of money under the [Administrative Procedure Act]”—because “the APA’s limited waiver of immunity does not extend to orders ‘to enforce a contractual obligation to pay money’ along the lines of what the District Court ordered here.” In other words, the government may well have acted unlawfully (the majority says nothing about that), but the lawsuit challenging its unlawful action may have to be brought in the Court of Federal Claims (where Congress has waived the federal government’s sovereign immunity in contract-based disputes), rather than in a federal district court in Massachusetts.

Chief Justice Roberts noted his dissent but did not write. Justice Kagan wrote a brief dissent suggesting that the Court is once again abusing the emergency docket to intervene when that intervention isn’t justified; and Justice Jackson wrote a longer dissent, joined by Justice Sotomayor, arguing that the district court’s order wasn’t appealable; that the district court is a proper forum for this suit; and that, in any event, the harm to the plaintiffs should’ve militated against the emergency relief the government sought from the Court.

There’s a lot to say about this intervention and the two separate dissents, and I’ll save much of that for Monday’s regular issue. But life moves pretty fast these days, and so I thought I’d write a quick post with three preliminary reactions:

First, the ruling is unquestionably a “win” for the Trump administration, but it’s not going to be clear for at least a little bit of time just how big a win it is. Lower courts have already treated some of the TROs entered against Trump policies as appealable orders (like the D.C. Circuit in the Alien Enemy Act case), and even if the Supreme Court majority’s discussion of this issue today pushes courts of appeals to treat more of these orders as appealable, that doesn’t do anything to change those courts’ analysis of the merits of the district court rulings. Contra what some of the President’s advisers (and some senators at Wednesday’s Judiciary Committee hearing) have suggested, district courts haven’t been using TROs to “insulate” their rulings from appellate review; they’ve been using them to freeze the status quo. This won’t prevent that.

As for the sovereign immunity discussion, the majority opinion certainly gives a boost to the government’s argument that all of the (dozens of) lawsuits challenging funding cutoffs have to be brought in the Court of Federal Claims. But again, that’s without any regard to the merits of those claims. And the majority doesn’t even say that; it says that, in this case, the government is likely to prevail on that issue—leaving open the possibility that district court rulings finding that funding cutoffs are unlawful on grounds unrelated to the underlying contracts (e.g., that they’re retaliatory in violation of the First Amendment, or that they’re otherwise arbitrary or capricious) may well be allowed to go ahead. Indeed, nothing in this ruling even prevents this district court from reaching that exact conclusion in this case—when it considers whether to convert the TRO into a preliminary injunction. It’s possible that courts of appeals take this nudge from the Supreme Court and run with it (so that the funding cutoff cases all end up in the Court of Federal Claims, where they could still easily prevail), but it’s possible they won’t, too. We’ll just have to see.

Second, the most interesting vote here is, once again, Justice Barrett. She’s the only justice who was in the majority both today and in the March 5 ruling in the USAID case—in which the Court did not vacate a district court order compelling the payment of obligated foreign aid funds, even though the government had made a similar argument about the Court of Federal Claims being the appropriate forum. Does today’s vote augur a fundamental shift in Barrett’s views about the “which court should hear these cases” issue? Or were there narrower, case-specific reasons why she ended up in a different place in this case, specifically? Barrett didn’t write separately, so there’s no way to know based solely on this ruling. Again, we’ll just have to see.

Third, and most importantly, today’s ruling still leaves five other emergency applications from the Trump administration pending before the Court heading into the weekend—the three birthright citizenship cases; the OPM-firing-of-probationary-employees case; and the Alien Enemy Act case. And there’s nothing in the majority opinion here that seems to affect how any of those are likely to come out.

With regard to the appealability of TROs, the birthright citizenship and probationary employee cases both don’t have any appealability issue at all (all four cases seek stays of appealable preliminary injunctions, not unappealable TROs); and the D.C. Circuit held that Chief Judge Boasberg’s TROs in the Alien Enemy Act case were appealable—so the government has already prevailed on that point in that dispute. And none of those cases implicate sovereign immunity the way that the funding cutoff cases do (the Alien Enemy Act case also has a “this should be filed somewhere else” argument from the government, but on very different grounds).

It’s possible that we’ll look back at today’s ruling as the beginning of a run of decisions in which the Court gave the Trump administration much, if not most, of what it’s asked for. But it’s just as possible that this case, which I’d always thought was the government’s strongest of all six, will end up as an outlier if and when the Court rules against the Trump administration in some or all of the other five. That’s of little solace to the plaintiffs whose grants have unlawfully been withheld in today’s case. And it doesn’t mean that the Court got today’s ruling “right” (I’m with Justice Jackson on this one). But folks looking to today’s ruling as a sign, one way or the other, of everything that the Court is going to do in Trump cases, may well end up disappointed—for better or for worse. As I wrote last week, these cases collectively reflect a bellwether for what kind of role the Court is going to play in the second Trump administration. But we may just want to wait until all of them have been decided before sorting out the broader message that they send.

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Regardless, we’ll be back Monday with our “regular” coverage of the Supreme Court. Until then, have a great weekend, all—and try to get some rest.

1. As I’ve noted before, for better or worse, the norm whenever the Supreme Court issues a majority opinion respecting its disposition of an emergency application is for that opinion to be unsigned, even when it’s 5-4. For the most recent example of a 5-4 “per curiam” opinion, we need only go back to last August.