Dan Epps

And that's one of the questions the D.C. Circuit and maybe the Supreme Court had to confront here in Dellinger. And D.C. Circuit said, we can't review this. Right. The D.C. Circuit said, this is a TRO. TROs are not ordinarily appealable. You could maybe make an exception under certain circumstances, but we're not going to make an exception.

Judge Katsas, often a dissenter who gets vindicated by the Supreme Court, I think, dissented and said, no, no, no. I would... I would wade into this one because the district court is so clearly wrong and the impact of the presidency is so large.

Judge Katsas, often a dissenter who gets vindicated by the Supreme Court, I think, dissented and said, no, no, no. I would... I would wade into this one because the district court is so clearly wrong and the impact of the presidency is so large.

Because from one point of view, this is a district court reinstating somebody in the executive branch who the president has removed, which maybe is not how it's supposed to work. And there's some also shadowboxing of other remedies and so on. So Judge Katz has said I would get into it.

Because from one point of view, this is a district court reinstating somebody in the executive branch who the president has removed, which maybe is not how it's supposed to work. And there's some also shadowboxing of other remedies and so on. So Judge Katz has said I would get into it.

And I wonder if it was strategic that the SG picked this case as one of the first of the many sort of Trump TRO cases to bring to the court. And I can't help but wonder if it's in part because the merits are both so good and so conventional. Like a unitary executive claim on behalf of a Republican president, that's like a totally normal thing to expect.

And I wonder if it was strategic that the SG picked this case as one of the first of the many sort of Trump TRO cases to bring to the court. And I can't help but wonder if it's in part because the merits are both so good and so conventional. Like a unitary executive claim on behalf of a Republican president, that's like a totally normal thing to expect.

Different from fighting about shutting down USAID or birthright citizens or whatever.

Different from fighting about shutting down USAID or birthright citizens or whatever.

Is that even a holding?

Is that even a holding?

Right. Well, it's funny because the knock some of us used to make on the shadow docket would be like, well, you just get results and no reasoning. And now you get neither result, no reasoning.

Right. Well, it's funny because the knock some of us used to make on the shadow docket would be like, well, you just get results and no reasoning. And now you get neither result, no reasoning.

So then... So they would grant for effectively the reasons that Judge Katsos would.

So then... So they would grant for effectively the reasons that Judge Katsos would.

So it's great. They did nothing and it was 5-4. Well, they can't even do nothing. Yeah. Doing nothing for no reasons, 5-4.

So it's great. They did nothing and it was 5-4. Well, they can't even do nothing. Yeah. Doing nothing for no reasons, 5-4.

Yes, they could have. I mean, sometimes when you hold something in advance, you just hold it in advance. You don't say you're holding it in advance. It's not like you're not ordering anyone to do anything. Yeah, although I do think, I mean, it's the two things. I take it some of these people wanted it right, and that's awkward. And I don't exactly know what the rules are around

Yes, they could have. I mean, sometimes when you hold something in advance, you just hold it in advance. You don't say you're holding it in advance. It's not like you're not ordering anyone to do anything. Yeah, although I do think, I mean, it's the two things. I take it some of these people wanted it right, and that's awkward. And I don't exactly know what the rules are around

dissenting from things that haven't happened but i take it nobody could stop gorsuch and alito from dissenting yeah dissenting from the refusal to issue a decision right or statement and then of course justice gorsuch would make it seem like shenanigans were happening so it's it's awkward yeah also i think this is supposed to i mean this is so i think the holding the advance is supposed to do two things it's supposed to send a message to the lower courts right this is not necessarily okay you should think pretty carefully whether you want to grant a preliminary injunction here