The gamesmanship by Roberts continues. More ‘temporary’ rulings that muddy the waters — in a creek where he should not be “big-footing” in the first place. But onward, resolutely, just the same.

Here’s the Wise Latina Justice — and here is KBJ. KBJ is certainly correct, in dissent.

…I agree with JUSTICE JACKSON that the President cannot restructure federal agencies in a manner inconsistent with congressional mandates. See post, at 13. Here, however, the relevant Executive Order directs agencies to plan reorganizations and reductions in force “consistent with applicable law,” App. to Application for Stay 2a, and the resulting joint memorandum from the Office of Management and Budget and Office of Personnel Management reiterates as much. The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law. I join the Court’s stay because it leaves the District Court free to consider those questions in the first instance….

[And, KBJ:] Historical practice thus confirms that, while Presidents possess some discretion to reduce federal employment, they may not fundamentally restructure the Federal Government all on their own. Administrative agencies are created by statute and funded by Congress; therefore, Presidents have traditionally worked with Congress to effect significant alterations of those statutory structures. This history is crucial to understand, because it establishes the “status quo” when it comes to the relative roles of Congress and the President in reorganizing the Federal Government. Given this background, one might have expected this President, like his predecessors, to obtain congressional authorization before launching the dramatic structural overhaul that Executive Order No. 14210 directs….

Instead of directing its attention and resources to fully courts below, the Government rushed up the chain of review, seeking an emergency stay of the District Court’s preliminary injunction from us. We thus faced the question whether to override the judgments of the two courts below by allowing the President to proceed immediately with implementing his restructuring plans. To answer “no” to that question is simply to preserve the status quo while the lower courts expeditiously decide the lawfulness of the President’s order. To answer “yes” — as the Court now does — is to allow an apparently unprecedented and congressionally unsanctioned dismantling of the Federal Government to continue apace, causing irreparable harm before courts can determine whether the President has the authority to engage in the actions he proposes….

In my view, this decision is not only truly unfortunate but also hubristic and senseless. Lower court judges have their fingers on the pulse of what is happening on the ground and are indisputably best positioned to determine the relevant facts — including those that underlie fair assessments of the merits, harms, and equities. I see no basis to conclude that the District Court erred — let alone clearly so — in finding that the President is attempting to fundamentally restructure the Federal Government. Therefore, I would not disrupt the lower courts’ preservation of the status quo. Instead, I would leave intact their protection of the historical relationship between Congress and the President. [I dissent.]

Now you know — on to Nashville (again), next Tuesday.

नमस्ते