Why I hate the Roberts Court

Either rule for the contractors and set a new date or rule with the government

Justice Samuel Alito led four conservative justices in dissent, saying Ali lacks the authority to order the payments. Alito wrote that he is stunned the court is rewarding “an act of judicial hubris and imposes a $2 billion penalty on American taxpayers.”

The court’s action leaves in place Ali’s temporary restraining order that had paused the spending freeze, Ali is holding a hearing Thursday to consider a more lasting pause.

The majority noted that the administration had not challenged Ali’s initial order, only the deadline, which in any event passed last week.

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

So what does this order actually do? As Dan Mclaughlin from the National Review suggests, this is not actually an order to pay anyone. It is an order for the District Court to clarify it's position on who needs to be paid and create a new deadline. Then, it would appear, the Administration could then "appeal" the TRO rather than the deadline and force Roberts to rule on the merits. At least that is how many are reading the order.

But the headlines are that the stay is lifted and the court ordered the Government to pay. That isn't necessarily the case, but when the new order is created and the Government then appeals that new order on the merits (rather than appeal the deadline) this will likely go back to the courts again. Short of an appeals court ruling for the Administration, the court would would then have to decide whether to hear another appeal or deny that appeal without explanation. I could see that one going either way.

Update: I was unaware of the fact that there is actually an appeal of the injunction itself scheduled for tomorrow. So the underlying issue of whether or not the injunction overall is legal will still be litigated. Regardless of the ruling at the appellate level, there are obviously four justices willing to hear any appeal of this. The TRO was created to allow for contractors to be paid while this is happening (and that is why this is an argument over 2 billion rather than a long term issue). Once this is put to the merits, then Roberts and Coney Barrett will be forced to rule on the merits, rather than punt this away. I strongly believe at least one of them will rule in favor of the Administration on the merits. This is not the correct court for this type of dispute. The Judges are rarely going to ignore the law, which sits strongly in favor of the Administration.

Why they allowed the two billion to be "potentially" sent is what the argument was between the justices. Obviously there was more back and forth than what was on the ruling, and it would appear that in the background there was an argument that if the end result goes in favor of the Administration that they will have recourse to try to get that money back if it turns out that the "finished" work was not really finished.