Playing the Justices for Fools - ONE FIRST - SUBSTACK
President Trump's latest emergency application rests on a contrived procedural emergency and a forfeited substantive claim—apparently banking on the view that the Court doesn't mind being played.
To cut to the chase, I wanted to write about the Trump administration’s latest emergency application to the Supreme Court (its 23rd in its first seven months in office)—in the ongoing litigation over the government’s refusal to spend foreign aid funds that Congress has mandated. (Yes, this application arises from the same two cases that the Supreme Court already dealt with in early March.)
The application is significant not only on its own terms, but because of the new reality it appears to reflect—one in which the Trump administration seems to be structuring at least some of its litigation decisions specifically to take advantage of its expectation that it can receive emergency relief from the Supreme Court. Here, that behavior includes contriving the procedural emergency that the Solicitor General now claims justifies intervention by the justices; downplaying the fact that the government forfeited the substantive claim on which it claims it is likely to succeed on the merits—by not properly raising it below; and misrepresenting what happened in the lower courts by conveniently leaving out any details that might draw the justices’ (or their clerks’) attention to those first two points.
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