Roberts Issues Stay In 'Pay $2 Billion' Case

This just in. The District Court judge had ordered Trump to pay $2 billion to various USAID funded outfits—by midnight tonight. There’s a brief explanation of this below. At any rate, Roberts just said, uh, no.

In a series of tweets starting about an hour ago Margot Cleveland shows how this went. DC Circuit played games, so Roberts responded to the DoJ emergency appeal:

Margot Cleveland @ProfMJCleveland

BREAKING: Looks like the justices will be woken.

D.C. Circuit has yet to rule on this Motion for an Emergency stay, with less than 4 hours before Trump Administration will be in violation. I'd wager DOJ filed a Motion for Administrative Stay in SCOTUS for this case too given tightness of time. But again, what's judge gonna do?

There are two hugely significant and interrelated portions of this supposed "TRO" that merit intervention by Supreme Court. First, sovereign immunity: You can't sue federal government for money unless it grants you permission. Federal government only granted permission relevant here if you bring the claim in a federal court of claims. That's related issue: Federal district courts lack jurisdiction, i.e., power, to decide contract/grant disputes which is what DOJ is saying is at issue here.

Another point which might get SCOTUS attention is misuse of TROs to avoid review. This is clearly an injunction--an order to pay--not a restraining order to maintain status quote & yet both lower court & Circuit Court are treating as non-appealable TRO, where huge consequences. SCOTUS needs to nip such abuse.

Now justices might want to avoid confrontation but frankly it will be worse if they don't because it will lead to Trump Administration failing to comply with court order & judge holding in contempt, which raises host of other huge issues. . . all because lower court entered nonsense order. SCOTUS would be wise to enter an Administrative Stay, but they might not be deep enough into what's going on with this case to understand why that is the most prudent route.

So then Roberts took what Margot called the “wise” course—he stayed the lower court orders:

Margot Cleveland @ProfMJCleveland

So for those who weren't following this for last two days, what happened in short is a federal district court judge ordered Trump Administration to pay out about $2 billion in money under contracts, etc. by midnight tonight purportedly to enforce Temporary Restraining Order.

Quote

Margot Cleveland @ProfMJCleveland

HUGE:

8:48 PM · Feb 26, 2025

Trump Administration basically said: a) we couldn't if we wanted to; b) this Court lacks authority to make us pay money on contracts b/c we have sovereign immunity (i.e., we didn't give you permission to sue us), you have to sue in Court of Claims.

TROs aren't generally appealable but this was a court order to do something so it should be appealable now, but when Trump appealed to D.C. Circuit, the Court refused to hear appeal & tossed case. Trump had hedged bets & also asked SCOTUS to stop judge's unlawful order.

Justice Robert's granted an "Administrative Stay" basically freezing the lower court's order mandating compliance by midnight. This is huge because SCOTUS doesn't normally get involved in cases, and definitely not at such an early stage where it is before district court.

But as I said yesterday when Judge did this, all hell was about to break loose and Justice Roberts likely recognized that reality: They cannot let a lone district court judge control the Executive Branch where the order is so clearly beyond the judge's authority to issue.

Shame on D.C. Circuit panel (Obama & 2 Biden judges) who didn't see the huge need to stop this farce.

Two points.

I’ll stick by my earlier view, which is that Roberts was not so much trying to avoid confrontation (Margot’s view?) as he was trying to give the lower courts a chance to show that the federal judiciary is capable of acting in a non-partisan, judicial manner—to show that the system can work, that even Barry/Zhou judges can act on accepted constitutional and legal principles from time to time.

Second, it’s not that the Barry/Zhou judges “didn't see the huge need to stop this farce.” It’s that they didn’t want to. Roberts was forced to act to prevent more public damage to the judiciary by judges who don’t actually care. Roberts acted because, whatever his shortcomings, he does care.