Generally, that seems right, but isn’t it a little different given that the case centers on the legality of her service rather than a more general case concerning government action? It seems more analogous to a tort or criminal case involving a friend.

I’m not sure it’s right to say that the order would terminate the proceedings. Katsas says the TRO was too ambiguous, but he’s just writing for himself; Rao says that the purge option made the order an unlawful attempt to coerce compliance, and leaves open that Boasberg could continue without that.

I’m not sure it’s right to say that the order would “end” the proceedings. Katsas says the TRO was too ambiguous, but he’s just writing for himself; Rao says that the purge option made the order an unlawful attempt to coerce compliance, and leaves open that Boasberg could continue without that.

In any event, the Trump administration's attempts to circumvent Senate confirmation are going to keep leading to problems for it, just like they did in Trump I.

The court also declined to address another argument against Cuccinelli's appointment -- whether "the first-assistant default rule applies only to individuals serving as first assistants at the time the vacancy arises." Habba may have a problem there too, although unclear when the vacancy "arose."

It seems like the same result should apply here. Habba was never in any meaningful sense the first assistant to the U.S. Attorney -- it was all just a workaround. And the FVRA's requirements have real teeth -- the court ended up invalidating several of Cuccinelli's anti-immigrant directives.

But a district court ultimately held that these machinations failed to comply with the FVRA for a "fundamental and clear-cut reason": Cuccinelli "never did and never will serve in a subordinate role—that is, as an 'assistant'—to any other USCIS official."

That's important because, under the Federal Vacancies Reform Act, 5 U.S.C. § 3345(a)(1), the "first assistant" to a role can serve in an acting capacity, subject to various restrictions and time limits.

It's complicated, but in short, the administration allowed Cuccinelli to "leapfrog" the existing first assistant by creating an entirely new position ("Principal Deputy Director"), designating that office as the first assistant, and appointing Cuccinelli -- all just to make him the acting head.

To add another: if the administration created a new position for her ("special attorney"), designated that position as the first assistant, and allowed her to immediately ascend to the acting role, those machinations seem similar to the unlawful steps used to appoint Cuccinelli at USCIS in Trump I.

This also came up in the litigation over the sanctuary cities EO in Trump I, with the Ninth Circuit at least holding that these sorts of ambiguous savings clauses can't override clear and specific provisions that are unconstitutional.

A third option is that it’s governing like it thinks that Democrats won’t use the same tools as aggressively if they ever manage to return to power, which is…not entirely unfounded.

Can you unpack that a little? Even setting aside the rule-of-law and legitimacy issues, an opinion that made bad law would still give litigators an opportunity to navigate around whatever principles the court laid out—as in the California funding case where litigators have found ways to distinguish.

Affirmative action for conservatives is apparently the only form of affirmative action that’s still permitted.

It misses several pathways — vacatur and stays under the APA, for sure, but also suits by associations, organizations, states, and broad coalitions of plaintiffs. www.justsecurity.org/116162/unive...

It looks like Cooper & Kirk is actually just representing an amicus, so that must be an error. storage.courtlistener.com/recap/gov.us...