Cases

Watching The Supreme Court is always frustrating. There is a tendency for things to take a long time.

David Snope filed a petition for writ of certiorari on September 23, 2024. This will be the third or fourth time he has requested a writ of certiorari from the Supreme Court.

It has been granted once, the ruling of the Fourth Circuit court was vacated, and the case was remanded back down to the Fourth for a do-over in light of Bruen.

In November 2024, we were hoping that this case and Ocean State Tactical would both be granted cert. It did not happen.

If cert had been granted by January 16th, the case would have had oral arguments in the fall, with the opinion issuing in August.

As things sit, we might not hear the outcome of this case, if granted cert, until the fall of 2026.

But there are things afoot here.

First, the court heard Bondi v. Vanderstok and published their opinion on March 26th. This was not a direct Second Amendment Challenge, it was more of an administrative challenge. We did not win. Both Alito and Thomas dissented.

Mexico’s lawfare case was heard. We will have an opinion on that before the end of the 2024-2025 term. This is a case where the Supreme Court can slap down the lower courts for abusing the Protection of Lawful Commerce in Arms Act.

Snope is in regard to Maryland’s “assault weapons” ban. It is one of the many cases where the inferior courts have said things of the sort of “well, some arms aren’t arms under the protection of the Second Amendment.”

Another case, with a docket that looks almost the same, is Ocean State Tactical challenging Rhode Island’s magazine ban. Here, the inferior courts have declared that magazines aren’t really arms under the Second Amendment.

A third case has shown up on the radar.

Antonyuk II is a Second Amendment challenge to New York State’s Bruen tantrum response bill.

The heart of this is New York designating almost every part of the state a sensitive place. Even though Bruen explicitly said that the state couldn’t declare Manhattan a sensitive place, just because there were cops and people there.

All three of these cases are being discussed by the justices, again, this Friday. If we get lucky, we will hear some movement on Monday.

At this point, my tea leaves are missing, my crystal ball has clouded up, and the wife won’t let me sacrifice a chicken to read its entrails.

I haven’t a clue what the justices are going to do. I am holding out hope.

This is an outcome that I disagree with.

This was a 7-2 option in favor of the state (the bad guys).

Thomas wrote a great dissent, I agree with him about the correct outcome.

Alito did a better job of explaining why the court got it wrong.

Emphasis added.

Facial challenges that require the Salerno test are the most difficult to win. The challengers must prove there is no case in which the regulation is legal (or constitutional).

This is what happened in Rahimi. The court found that §922(g)(8) withstood a facial challenge because a person who had been found to be a violent danger to others could be temporarily disarmed.

The Court found that there was a tradition of disarming violent persons in the late 1700s. That the disarmament could only be temporary, and it had to be properly adjudicated.

Because of the very limited scope they found, the law survives the facial challenge.

By extension, a lifetime loss of Second Amendment protected rights runs against the opinion in Rahimi.

Here, the state slipped in a statement about Salerno. The respondents (good guys) didn’t feel it needed a response, so they didn’t respond.

The majority of the Court then took this as the respondents agreeing that Salerno should control.

Now that Salerno attaches, all the state need do is find ONE example where the regulation is acceptable.

In this case, they used an example, provided by the state, of a frame that required two plastic tabs clipped and filed, and a few holes drilled. Something any of you should be capable of doing in 10 to 15 minutes.

The other was a complete kit which contained everything to assemble a firearm. The time to assemble was listed as around 21 minutes.

As Alito points out, this means that those two are firearms, as defined by the GCA of 1968. It doesn’t say anything about the rest of the frames and receivers out there.

Regardless, background checks are unconstitutional, in my opinion.

This is 12 hours late. I am working a hard deadline for a client that has to be able to handle tariffs correctly by April 2nd. Sorry about that.

Back in the depths of time, a foreign national wanted to become a U.S. Citizen. He married a young woman who was a U.S. Citizen, living in the U.S.

He received his visa to come to America.

When enough time had passed, he asked his wife to sponsor him to become a U.S. citizen. She did not want to. He offered her $5000 to do so. She refused, they divorced and he left the country.

This happens more often than you might think. It happened to a friend of mine.

She wasn’t a beautiful woman, she was very plain. A man from the Middle East in the US on a student visa “fell in love” with her. He wined and dined her. Treated her in ways nobody else had.

They got married. He got his green card. They had a beautiful girl together. She sponsored him for citizenship. He became a U.S. Citizen.

He then divorced her, took their kid back to his home country. Married the girl who had been promised to him before he came to the US.

In the case of Miss Bouarfa:

Miss Bouarfa appealed to the Board of Immigration Appeals, which agreed with the state, his visa stayed revoked. She then appealed to the Federal District Court, claiming the state lacked sufficient evidence to support their determination.

The state got the case dismissed. 8 U.S.C. §1252(a)(2)(B)(ii) has this to say:

They appealed to the Eleventh Circuit Court, which affirmed the inferior court’s ruling. His visa was still revoked.

The question the Supreme Court chose to resolve:

Conclusion

Once the back and forth with the inferior courts is completed, Khalil will lose.

The Supreme Court found, 9-0, that the Secretary has the choice to revoke any visa or green card for anything he feels is sufficient. Judicial review is not allowed under U.S. Law.

The ONLY challenge they would have is a Constitutional challenge, which they have not really made.

What is the judicial branch of the U.S. Government?

There is only one court defined in the Constitution, all the others are created by Congress and are inferior to the Supreme Court.

The Congress can establish courts, which implies that they can delete courts. This has happened in the past, I believe. We have been looking to split the Ninth Circuit into multiple circuits for several years now.

Neither the Congress nor the President can reduce the salary for Judges. They can only increase their salaries.

There are two ways to remove a federal judge from inferior court: 1) Impeach them, 2) Find that they are not exhibiting “good behaviour”.

While the Constitution established the Supreme Court and authorized inferior courts, it doesn’t, explicitly, say what authority over the other two branches it has.

The President has the power of the veto. He has command of the military and the tools required to fulfill his responsibilities as the head of the executive branch.

The Congress has the power of the purse and the ability to create laws. They can override a presidential veto.

Our government was set up to be at odds with itself. To be inefficient in creating laws. No man’s home or wallet is safe when Congress is in session.

The power of the Court came when they took it in Marbury. They didn’t justify that power grab under the Constitution. They simply declared that it is the job of the courts to say what the law is.

As part of that task, they are now empowered (authorized) to judge the Constitutionality of any law.

The Supreme Court has put guard rails on that power. While we heard it in Bruen and in Heller, it is a consistent message, first look at the plain text of the Constitution. If the proposed conduct implicates the plain text of the Constitution, then the burden shifts to the Government to show this Nation’s historical tradition of equivalent regulation.

Yes, that sort of language is in many Supreme Court opinions, not just Second Amendment Opinions. Which is part of the reason the legal people of the Second Amendment Community get upset with rogue inferior courts.

The Trump Administration’s Attack on Judges

Maybe we should say, “rogue, inferior court, judges.” These are judges, sometimes making up an entire court, that seem to feel that they have the power to overturn presidential orders.

Unfortunately, these judges step outside the guard rails constantly.

Consider just one question, “Does the President have the Constitutional authority to hire and fire personal within the executive branch?”

When we look at the plain text of the Constitution, we find that he does have the authority to hire. Sometimes that requires the Advice and Consent of the Senate. Other times it does not.

With the authority to hire comes the ancillary authority to fire. This is the same as the First Amendment’s “freedom of the press” including the right of the press to purchase ink and to be free of targeted taxation.

Trump 2.0 came into office knowing that he would be subject to lawfare. The left has already played that hand.

When I read the filings of the state (good guys), it is obvious that they were prepared for these court cases. They have been extraordinarily careful to make sure they follow the court’s orders without letting the court win.

Battle Is Waged

There seems to be credible evidence that there are people in congress that are looking to start impeachment proceedings against those judges that they feel are going rogue. Chief Justice Roberts issued a statement that impeachment wasn’t the correct path to follow when a court’s ruling goes against you. Still, the undertones suggest that impeachments are coming.

Some lawyers are suggesting going after the good behavior aspect. If the judge is not staying within the guard rails created by the Supreme Court, they are not exhibiting good behavior. This means they can be removed. Is there good case law for this? I do not know. I suspect there is not.

You are welcome to read this article from the University of Notre Dame.

Regardless, there are judges out there that are seeing that they are getting into the “FO” stage of the equation.

Enter Judge Jesse M. Furman

Judge Furman is a member of the Southern District of New York District Court. When Khalil was detained, then transported before being deported, he was the lucky judge to get the case.

The case is a writ of habeas corpus.

The gist, in this case, is that the lawyers for Khalil want him in S.D.N.Y, and they want the court to have power over him. Currently, the federal government has power over him.

Unfortunately for Khalil, the state hit hard and fast. They detained Khalil, took him to the ICE Field Office in Manhattan for processing. The ICE Field Office does not have facilities for holding prisoners for more than 12 hours. Since he couldn’t hold him there, so they transferred him.

He was transferred to the Elizabeth Detention Facility in Newark, New Jersey. Normally, this is where he would have been held until deported or released.

But, the Elizabeth Detention Facility was experiencing and continues to experience a bedbug issue that prevented [them] from accepting detainees as full transfers. In short, he couldn’t stay there.

This was known before Khalil was detained. They had transport ready and Khalil was on his way to the Louisiana Detention Facility in Jena, Louisiana shortly after he arrived in New Jersey.

This was happening so rapidly that the Judge is talking about where Khalil was at any particular minute. In some cases, he was removed from jurisdictions only a few minutes before court orders would have stopped the transfer.

Now Khalil is in Louisiana. The S.D.N.Y. did not have jurisdiction when the case was opened. That would have been in the District of New Jersey. By the time everything was sorted out, he was in the Western District of Louisiana.

This judge could claim he had jurisdiction and demand the return of Khalil. This would be fought, and is being fought. He is unlikely to win on the merits. It could be years before the Supreme Court makes a final decision. During that time, Khalil would be behind bars.

If the judge dismissed the case, his earlier TRO would be vacated and Khalil would be deported.

If the judge transferred the case to the W.D. of Louisiana, it is likely that the courts in that jurisdiction would not be issuing orders overriding the President.

Here is the thing. The Trump admin is going to put the same motions for dismissal or transfer in front of the judge in New Jersey.

How does a judge in New York decide that they don’t have jurisdiction because the person wasn’t in the district when the case was filed, believe that the case belongs in a jurisdiction where the complaint was never filed and where the person is currently being detained?

Bluntly, I think the judge in New York took a look at what was happening and decided, “I don’t want any part of this mess.” Then punted.

This case is distributed for Conference on 3/28/2025. This adds an interesting twist on our Second Amendment cases before the Supreme Court.

Could this be combined with the Snope (assault weapon bans) and Ocean State Tactical (magazine bans)?

This case is where New York State’s Bruen tantrum replaced “proper cause” with “good moral character” and then proceeded to make almost all of New York State a sensitive place.

We are living in interesting times.

I wrote this morning’s post last night, before Mark Smith had posted.

I felt I got it right.

It feels wonderful to hear him saying the same things I was trying to write about.

I am NOT a Lawyer. That being said, I do analyze large systems all the time. And as my mentor used to say, “The justice system is just a system.”

History of the case:

January 20, 2025: EO 14,169 was signed by President Trump. “It is the policy of the United States that no further United States foreign assistance shall be disbursed in a manner that is not fully aligned with the foreign policy of the President”

This is the long-term goal. No more foreign aid that is at odds with the President’s foreign policy.

for programmatic efficiency and consistency with United States foreign policy…immediately pause new obligations and disbursements of development assistance funds to foreign countries

Stop all foreign aid payments until we have reviewed it for alignment with current foreign policy. Don’t enter into any new contracts while paused.

To you and I, this seems like a logical and reasonable situation. There was a short fuse put on the order of 90 days. Each agency had only 90 days to evaluate the situation and report.

Within the EO, there is an allowance for the Secretary of State to issue waivers. If some entity had a need, and it aligned with our foreign policy, they could get a waiver now to receive funds.

February 10, 2025: Plaintiffs/Respondents (Bad guys) challenged the pause. The alleged violations of the APA and the Constitution.

February 13, 2025: The District court (inferior to the circuit courts which are inferior to the Supreme Court) granted relief. The court did not give the government (good guys) an opportunity to file an opposition brief.

The court said that a pause wasn’t arbitrary or capricious, the government had not considered that aid recipients might be butt hurt.

Having issued the TRO, the State Department started issuing payments again. The difference was that before issuing a payment, they were evaluating how that “aid” aligned with our foreign policy.

The order, however, allowed the agency defendants to “take action to enforce the terms of particular contracts, including with respect to expirations, modifications, or terminations pursuant to contractual provisions.”

The government obeyed the rules as set out by the court. The plaintiffs (still the bad guys) did not see the faucet of cash open, so went whining back to the court claiming that the government was violating the court’s order.

February 24, 2025: One of the plaintiffs filed an emergency motion to enforce the court’s order.

February 25, 2025: The court held another hearing. The court did not give the state time to file a written response to the emergency motion. The court then granted the motion from the bench. (Not a written order, yet)

The court did not address multiple issues the state brought up.

Instead, the court ordered the state to pay all invoices and letters of credit drawdown by 2359 on the 26th.

This amounted to around $2billion. The order ignored due dates, standard accounting practices of verification, and other aspects of the contract.

When I send out an invoice, my clients have a certain amount of time to pay the invoice. Normally, 30 days.

Government contracts often have longer delays built in. IIRC our contracts with the government had 90 day due dates.

What the court ordered was that the government had to pay invoices received by January 24th even if the invoice wasn’t due for many days.

After this hearing and new order, the government filed for an emergency stay pending appeal to the D.C. Circuit court.

The motion asked for an administrative stay by 1300 on the 26th. If not an administrative stay, the government wanted a ruling by 1600. These time frames are very fast, but the government was given about 36 hours to issue 2 Billion Dollars.

February 26, 2025: The Circuit court asked the plaintiffs (bad guys, still) to file a response by 1300. This is the deadline the state put forth for an administrative stay.

The circuit court didn’t issue the stay, nor did they rule on the motions. Instead, they dragged their feet. With time running out, the government appealed to the Supreme Court.

Just before the midnight deadline, Chief Justice Roberts issued an administrative stay. The Court then asked for a response by 1200 on February 28th.

February 28, 2025: Everybody got their briefings in. The state by normal rules can reply to the response.

March 3, 2025: The state filed their reply to the response to the motion.

March 5, 2025: The application was referred to the Court. An opinion was later issued.

Analysis

There is so much going on and so many moving parts, it is easy to get lost without picking up the minutia.

What we wanted was for the Supreme Court to roll up a newspaper and swat the inferior courts across the snoot a few dozen times. They didn’t.

The district court’s order was labeled a TRO, it was acting as a Preliminary Injunction, and the modified order granted relief that before the adversarial part of the case took place.

Said differently, the plaintiffs want the money to flow. The government says that they have paused spending. The plaintiffs seek the relief of having the money flow. The court’s original order said, “The money must flow.” The government started spending. The plaintiffs claimed that it wasn’t fast enough. The court “modified” their original order and said, “let the money flow”.

Thus, the court actually granted the relief the plaintiffs wanted.

What the Supreme Court’s opinion said was: The application is denied

This is the takeaway. The government has to start the money flowing again.

But here are the important parts that aren’t being noticed in some of the postings I’ve seen (all).

This is an order to the inferior court to change their order and correct deficiencies.

What the government (good guys) were asking for was time to present their case. The inferior district court stripped them of that right. They were not allowed to respond in writing. They were not given time to make appeals safely. In addition, they were ordered to do things which they cannot recover from.

If they pay some of these bills, there is no clawback available to the government. We know that the entities receiving that money will disperse it so fast heads will spin.

I don’t know what Barrett was thinking, but she sided with the denial of the application. I don’t trust Chief Justice Roberts to take risks. He much prefers the safer path, the more limited opinions. It always surprises me when he does join with
Thomas and the rest of that team.

But, in my opinion, the big takeaway is that the inferior court has to consider feasibility. They have to make sure that their order is clear.

The other part of this is that this should take the case out of the TRO state and into the Preliminary Injunction state. While a case is in the TRO state, there are limits in what can be appealed.

Yesterday, the Supreme Court heard oral arguments in this case.

It is difficult to actually conceive of how long the battle for our Second Amendment rights has been going on. It started in 1792 and has continued through tomorrow.

In the founding era, there were a number of racist and religious exceptions. These were designed to keep arms out of the hands of Negros, mixed race people, Indians, certain religions, and other deplorable. By the 1870s, all of these exceptions were found to be unconstitutional, leaving very few infringements that would survive constitutional muster.

At this time, temporarily denying the right to people that have been adjudicated violent in a court of law is the only one I know of. See: —Bouarfa v. Mayorkas, 2024 604 U.S. 6

In the early 1900s, New York City decided to ignore the Constitution and passed the Sullivan Act. The Sullivan Act was designed to disarm those that would stand up to the corrupt bosses who controlled the city. They used a permitting system.

They claimed that this was constitutional because some people did get permits and everybody could beg for permission from the government for that permission slip. This continued until 2022, with the Bruen decision, the corrupt NYC permitting scheme was shutdown. For all of 10 seconds.

The Bruen response bill attempted to create a statewide “sensitive” places replacement.

After the Sullivan Act, the infringers decided to ban handguns, machine guns, and short shotguns. They did this by placing a tax on these guns that was so outrageous that The People could no longer afford them.

They did not accomplish this. What they got instead was a functional ban on Short Barreled Rifles, Short Barreled Shotguns, Machine guns, and Silencers. By 1936, this was the accepted law of the land.

Using a saying that had not yet been published, in the late 1960s the infringers took advantage of a crisis to stop mail order gun sales. The GCA of 1968 created FFLs and required in person sales of firearms.

The claim was that those FFLs wouldn’t sell to bad people.

When bad things kept happening, they tried more gun control. Mostly permitting schemes that made it nearly impossible for The People to get permission.

Using another crisis, they got the Brady Act passed. Thank goodness, the NRA was fighting for some level of a win. The original intention was to create a system where buyers would have to get permission from the government for any gun purchase.

This was in the form of a “background check” with no limit on how long it took or how intrusive it might be. The NRA got the NICS system for us. Along with a “not denied is proceed”. It put the onus on the government to complete the check rapidly.

In 1986, we got a win with a poison pill. This was the Firearms Owner Protection Act. This was designed to protect firearm owners from being persecuted by the ATF.

There was a time when describing the internal workings of a machine gun was being construed by the ATF as manufacturing a machine gun. Selling a gun or two could get you sent to prison for not having an FFL. It was bad. There are stories of ATF agents hanging around gun shows seeking people to arrest or FFLs to bust for trivial things.

The bad part of the Firearms Owner’s Protection Act was the Hughes Amendment. The infringers had realized that the NFA had outlived its usefulness.

In 1934, the $200 surcharge for transferring a machinegun was unreachable for most of The People. When a M3 machinegun was selling for under 30 dollars, $200 was nearly impossible. An ad for a Colt M16 shows a price of $236.00 plus $5.00 for shipping. By the mid-1980s, the price was around $1800.

At $1800, a $200 surcharge wasn’t as bad.

One of the problems that started happening after 1986, when the NFA was closed to new machineguns, was a price boost of $200 every time a NFA item changed hands.

Consider buying a silencer today. The can costs $500 + $200. If you want to sell the can, you would like to get $700, to recover your costs. Now, this doesn’t work. Given the choice of a used can for $700 + $200 tax or a new can for $500 + $200 tax, you buy new. Thus keeping the costs of silencer’s down.

After 1986, there were no new machineguns. This means that every transfer increases the cost of that gun by at least $200.

At this point, the infringers moved to stop the sale of all firearms. The method they decided on was to sue firearm retailers and manufacturers out of business.

What they did was they found a bloody victim and then sued the FFL that sold the gun. They knew they would not win the case, but the cost of litigation was punishment enough.

In 2005, bipartisan legislation was passed to stop this lawfare. The Protection of Lawful Commerce in Arms Act (PLCAA) was designed to protect entities in the lawful commerce in arms from frivolous lawsuits.

And it worked.

Until Sandy Hook.

They sued Remington Arms because they owned Bushmaster who manufactured the rifle that the asshole used to murder children and teachers.

What they claimed was that Bushmaster produced ads that caused the asshole to decide to murder his mother. Steal her keys to the safe. Open the safe. Steal the AR-15 within. To drive the car he stole from his mother to the school. And there murder children and teachers.

It was all the fault of the manly man ads that Bushmaster used to sell guns.

The lower state court dismissed the case based on the PLCAA. It was appealed up to the Connecticut Supreme Court. They decided the case could move forward. That was appealed to the Supreme Court, who denied cert.

Remington was bleeding money, and this case didn’t help. They went bankrupt. The hull of the company had no assets and no people. The insurance companies were on the hook for the money involved in the suit.

They settled. No gun people were involved in that disaster. It was a purely money motivated decision.

Which brings us to this case. Sorry for this long history.

Mexico was approached by the usual suspects. They filed in Massachusetts claiming that all the gun manufacturers were causing horrible things in Mexico.

The argument goes something like this:

The Cartels get guns from an illegal gun dealer. That illegal gun dealer purchased that gun from an illegal gun smuggler. The illegal gun smuggler purchased the gun from a straw purchaser. The straw committed felonies when they filled out the 4473 and when they sold the gun. The FFL knows that some of the guns he sells are being sold to straw purchasers. The distributor knows that the retailer knows that he is selling some guns to straw purchasers. The manufacturer knows that they are selling to distributors that know that the FFL is selling some guns to straw purchasers.

Therefore, the gun manufacture is guilty of adding and abetting murder in Mexico.

Yeah, it is that bad.

The lawyer for the petitioners (good guys) gave his opening statement explaining this. He then stated that the path between crime and manufacture had too many intermediate steps to make them responsible. This is known as “proximate cause analysis”.

He didn’t say anything about PLCAA.

Thomas started the questioning. The conservatives asked the right types of questions.

Then Sotomayor stepped up to the plate. And asked good questions. Not great, but good.

After Gorsuch and Barrette, Kagan asked questions. Again, not great, but good.

Then the surprise of the day.

Jackson started asking questions. And her leading question was, “Why wasn’t this stopped by PLCAA?”

It was a Good question.

I’m looking forward to reading the court’s opinion. At this point, I am finding myself thinking that this maybe a 9-0 opinion.

Transcript of oral arguments in 23-1141

When I was in elementary school, the principal still had a paddle hanging on the wall behind him. The principal was the person that hired and fired teachers and all other staff at the school. They had significant power.

To quote Stan Lee, “With great power comes great responsibility.”

Most principals did use their power responsibly. They used the power of the paddle to control their schools. They used the power to hire and fire to control their staff. And they did not abuse that power.

Unfortunately, when there are positions with great power, that power attracts people who are interested in power.

There was abuse. There were principals that abused the power of the paddle, taking it over that line. There were principals that hired and fired at a whim. Being a teacher had no stability.

The answer that was put into place was to remove the power of the paddle and the power to fire from principals.

Today, teachers are one of the most protected professions in the country. In my state, it is illegal for anybody to speak negatively of a teacher at a board meeting. You cannot say that a teacher is a bad teacher.

The only way that I could make that statement was to say my kids have Mrs. Smith, Mrs. Jones and Mr. Kilroy as teachers. Mr. Kilroy and Mrs. Smith do a fantastic job.

I had to leave “but Mrs. Jones sucks as a teacher” out. To say anything negative was forbidden.

Our president was given the job as chief executive. He was given the job of commander in chief. He is in charge of the executive branch.

This is stated in our Constitution, under Article II.

He delegates power to different people to oversee the executive branch.

Unfortunately, like those principles of times past, the power to fire somebody at will was abused by some.

To deal with that abuse, Congress stepped in and usurped the power and responsibility of the president. They did this by passing unconstitutional laws, which have not yet been struck down.

Our first highlight is almost constitutional. Where it fails is “for a term of 5 years”. Congress does not have the authority to set term limits for appointees. Appointees serve at the pleasure of the president.

Prior to Trump, this was never an issue. All such appointees tendered their resignation when a new administration came into office. Nobody had to be fired.

The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. is unconstitutional. Why? Because every person in the executive branch serves at the pleasure of the president.

When congress put limits on when the Special Counsel could be fired, they overstepped their authority as granted by The People through Our Constitution.

Simple.

Challenges

Dellinger was fired. He was fired because the president did not trust him. Or because the gentleman wore bow ties instead of real ties. It doesn’t matter. He serves at the pleasure of The President.

When he was fired, he ran to the courts and asked the court to unfire him.

The court granted an “Administrative Stay”, stopping the firing. Now administrative stay is in quotes in all the paperwork by the state (good guys) filed and here because it is a made up term.

Courts can grant injunctions, temporary or otherwise. Superior courts can issue stays against inferior courts. Courts can issue administrative stays against themselves or inferior courts.

The common example is when an inferior court grants an injunction or final judgment, and they know the decision will be appealed. Rather than give the parties whiplash, they put an administrative stay on their order go give the parties time to appeal.

If the superior court does not issue a stay, then the administrative stay expires and the order or judgment goes into effect.

In this case, the plaintiff (bad guy) claims that he was fired in violation of 5 U.S.C. §1211(b). The Administrative Procedures Act.

He was. The state (good guys) did not offer any reason when the fired about Dellinger about “inefficiency, neglect of duty, or malfeasance in office” Thus, they did not meet the requirements of the APA regarding Dellinger.

I do not believe that the state attempted to justify the firing under the APA. Instead, the state made a Constitutional Challenge.

Otherwise known as a Civil Rights case.

This triggers a bunch of legal stuff I am not confident in my knowledge about. I.e. I don’t know what I don’t know.

I do know that the challenge should be addressed via the Winter factors.

The most important of which is the likelihood of success on the merits. Followed by irreparable harm, balance of equities, and public interest.

The Supreme Court has ruled that any denial of a Constitutionally protected right is irreparable harm. They have also stated that violation of a Constitutionally protected right balances to the person harmed. And that the public has no interest in enforcing an unconstitutional law.

In other words, if the challenger is likely to win on the merits, they win on all four Winter factors.

The Order

(“ultra vires” means “beyond legal power or authority”)

This is the judge saying that the President broke the law when he fired Dellinger.

The judge reasoned:

My interpretation of the judge’s reason is: Since Congress created this position in the executive branch, they get to decide the limits on what the President can do regarding this position, regardless of what the Constitution says.

Conclusion

Social media is all a fuss about Trump losing. This isn’t over. This case took 3 weeks to go from filed to final judgment. It has already been appealed to the D.C. Circuit Court.

This is being done on an expedited basis. If the Circuit court does not issue a stay on this, the state (good guys) will appeal to the Supreme Court for a stay pending the appeal.

It is my belief that a stay will be granted by the D.C. Circuit court or by the Supreme Court. This will stop the delay tactics that the left loves to use. If they want this done, they will have to push to get it done as quickly as possible.

This case started in the United States District Court (D.D.C.) This is the court that covers Washington, D.C.

Two cases were brought AIDS Vaccine Advocacy Coalition v. United States Department of State and Global Health Council v. Trump. Docket Number: 25-cv-400 and 25-cv-402.

The two cases were filed in the same court at nearly the same time.

After the district court issued their TRO, the Trump administration appealed to the D.C. Circuit court.

The state’s motion is better than I expected. My expectation was that this was going to be a full throated attack based on Article II standing and authorizations.

The state goes on to point out that the court’s order requires them to pay all invoices and drawn-down requests even if those payments are not due, have not had normal vetting done (was the work done), have not been checked against the statement of work, or that these bills are legitimate in any way.

The state also points out that there is no court record (it is not in the record) of the bills that the plaintiffs (bad guys) want paid.

Of note, the state (the good guys), are pushing that this is a constitutional issue.

When a case is appealed at the district level, it is appealed to the Circuit court. It is very unusual to skip directly to the Supreme Court. This was done.

The state did appeal to the Circuit court. They were intending on dorking around to force the state to either pay the $2 billion or to directly violate the district court’s order. When the state filed with the Supreme Court, they informed the Circuit Court, which then issued their opinion.

There is a guideline in the court system that says that TROs cannot be appealed. This does not stop the state (as bad guys) from appealing TROs that go against them. This happened in —Bouarfa v. Mayorkas, 2024 604 U.S. 6.

The Circuit court was unwilling because the state (good guys) didn’t appeal the TRO when it was not as intrusive. The Circuit claims that this means the TRO can’t be appealed. They cited to Dellinger v. Bessent which is another case where the rogue inferior court decided that they could order the president around.

Before the midnight deadline, Chief Justice John Roberts issued an administrative stay.

I was surprised there was not more yelling about a single judge (Justice) doing this. But that could be because even the leftest understood that screaming about a single justice stopping a single judge might undermine their position.

An administrative stay is issued before any briefings on the merits have taken place. They are issued when there is a possibility of a whip-lash situation. We saw this in the Duncan case out of California.

The district court issued a final judgment saying that California’s ban on magazines was unconstitutional. This happened before Bruen. This led to what is known as “freedom week” when millions of magazines flooded into California. The state appealed to the Ninth Circus, which then put a stay on the judgment, stopping freedom week.

When the same judge found that California’s magazine ban was still unconstitutional, post Bruen, he issued his final judgment and then put a 30-day administrative stay on his judgment.

The state did appeal. The Ninth Circus did issue a stay. There was no Freedom Week II.

The Chief Justice has ordered the parties to have all briefings in by noon today. The Supreme Court will then issue their order regarding vacating or staying the TRO. That will likely happen on Monday.

Question of the week?

Are you tired of winning yet? Is this what you voted for?