The federal judge overseeing the lawsuit seeking to save USAID from the DOGE buzzsaw made an interesting dodge in his decision yesterday imposing a temporary restraining order on the Trump administration. Federal District Court Judge Amir H. Ali, a Biden judge so left-wing that he was confirmed only by a 50-49 vote, did the bidding of the plaintiffs and ordered funding to be resumed on USAID contracts that were in force on the last day Biden was president. After ordering funding to resume, he adds this:
It is further hereby ORDERED that nothing in this order shall prohibit the Restrained Defendants from enforcing the terms of contracts or grants.
What this means is that if the grant has a "cancellation for the convenience of the government" clause, USAID's new management can go ahead and cancel the grant once they've informed the court what they are doing.
🚨🚨🚨BREAKING: Court enters TRO barring Trump from freezing federal grant funding unless allowed by grant! An absolutely ridiculous order because it is a "comply with the law injunction" and also alternative mechanism to enforce so APA doesn't provide claim. 1/ https://t.co/SqkaGl0y8t pic.twitter.com/9kRilAbgbO
— Margot Cleveland (@ProfMJCleveland) February 14, 2025
The final result was a tough-sounding TRO that ensures Judge Ali gets progressive plaudits and invitations to the best dinner parties but tacitly acknowledges that the chance of it surviving scrutiny by the Supreme Court (I would say the appeals court but the DC Circuit is so infested with TDS that it will go along with anything that it thinks will hurt Trump) approaches zero.
Interestingly, something very similar happened in the case of Judge John J. McConnell Jr.'s ruling that the Trump administration could not pause federal payments. If you recall, when the highly conflicted judge (Federal Judge Hearing Trump Spending Freeze Called Him a 'Tyrant,' Has Ties to NGO Getting Federal Cash – RedState) first entered a TRO in the case, he basically took on the role of deciding all spending for the country; see NEW: Federal Judge Makes Ruling Against Trump Admin That Might As Well Be a 'Soft Coup' – RedState. He even threatened Trump and other administration members with criminal contempt charges...he didn't mention how he planned on circumventing the whole pardon power thing, but when you aren't practicing law and are just playing for the cheap seats, you don't have to worry about that.
When the Trump administration went to the First Circuit, appealing the intrusiveness of McConnell's order, they didn't set it aside, but they did send it back with an interesting directive to the judge.
We are confident the District Court will act with dispatch to provide any clarification needed with respect to, among other things, the defendants' contention that the February 10 Order "bars both the President and much of the Federal Government from exercising their own lawful authorities to withhold funding without the prior approval of the district court." We note in this regard the plaintiffs' statement in their Opposition to Defendants' Motion for Administrative Stay Pending Appeal that, consistent with the TRO, the February 10 Order "does not stop defendants from limiting access to funds without any 'preclearance' from the district court 'on the basis of the applicable authorizing statutes, regulations, and terms.'"
In the revised TRO, Professor Margot Cleveland observed that the Trump administration was told that it could only do what it was legally allowed to do.
🚨🚨🚨Judge in ⬇️case denies stay pending appeal. Court's reasoning based on his huge walk back of what he really enjoined saying basically "oh, I've only ordered you to not do what you can't legally do." 1/ https://t.co/7ko6LQyMXr
— Margot Cleveland (@ProfMJCleveland) February 12, 2025
That's how this happened without a peep from Judge McConnell:
Elon Musk's Team Catches FEMA Bureaucrats in Mutiny Against Trump – RedState
The same story unfolded with the Trump buyout for federal employees. First, there was a TRO, and Trump's Government Purge Hits Major Roadblock As Judge Puts Brakes on 'Fork in the Road' Buyout – RedState. That was followed, without the addition of any information that was not available when the TRO was granted, by an acknowledgment that the court did not have jurisdiction and that the labor unions did not have standing; see Federal Judge Puts Trump's Layoff Train Back on the Tracks – RedState.
The pattern seems to be that judges respond immediately to requests for temporary restraining orders with overbroad language, then quietly walk the language back once the headlines pass.
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