“The only way to end this crisis—which the Executive is adamant to end—is for Congress to reopen the government. The district courts’ orders instead throw a massively inappropriate new variable into negotiations, forcing the political branches to guess how emerging TROs might affect the parties’ willingness to agree to end the shutdown and which programs district courts will try to force the Executive Branch to fund next,” Sauer wrote in his brief to the high court.
Late Friday evening, Justice Ketanji Brown Jackson halted U.S. District Judge John McConnell’s Thursday order that Section 32 Child Nutrition Funds be used to issue full SNAP benefits, saying the administrative stay would end 48 hours after the U.S. Court of Appeals for the First Circuit issued its ruling on a stay pending appeal. The appeals court denied the administration’s request for a stay pending appeal late Sunday evening, meaning that, absent an extension of the Supreme Court’s stay, McConnell’s order will take effect late Tuesday evening.
Sauer has asked for an extension of the administrative stay in the interim and for the Supreme Court to grant a full stay if the government has yet to reopen by the time they are fully able to consider the emergency application.
The solicitor general argues the district court made a decision delegated to Congress, not the courts, by attempting to unlawfully shift funds from one program to another.
“That sort of careful balancing—between competing programs, and short-term versus long-term harms—is precisely the prerogative of the political branches, not of the politically unaccountable federal courts,” Sauer wrote.
“Under our system of separated powers, that is not the judiciary’s call. Nor does equity license a federal court to compel the Executive to jeopardize one set of critical programs in order to fund the court’s preferred set—especially when the logic for doing so rests on the sheer speculation that another independent branch of government will step in eventually to pay whatever tab the court runs up,” Sauer wrote.
Sauer argued the Supreme Court should grant the stay to “let the political process that is rapidly playing out reach its conclusion.”
SUPREME COURT TO REVIEW LEGALITY OF COUNTING MAIL BALLOTS ARRIVING AFTER ELECTION DAY
Jackson set a deadline of 8 a.m. on Tuesday for the groups suing the Trump administration over SNAP funding to respond to Sauer’s brief.
DOJ asks to halt ‘raid’ on SNAP funding as shutdown deal advances
