Last Friday, the Solicitor General filed a self-described “Petition for a Writ of Certiorari” inwards No. 17-654, Hargan v. Garza, the illustration involving HHS’s efforts to deny a 17-year-old daughter inwards its custody—"Jane Doe"—the right to obtain an abortion to which she was entitled nether the Constitution in addition to Texas law. The SG’s petition asks the Supreme Court to review a conclusion of the en banc U.S. Court of Appeals for the District of Columbia Circuit. That court, past times a vote of 6 to 3, denied the government’s motion to remain a preliminary injunction that Judge Tanya Chutkan issued against officials of the Department of Health in addition to Human Services, prohibiting them from interfering amongst the efforts of Doe’s guardian in addition to attorney promotion litem to carry her to a hospital to obtain an abortion.
The SG filed his petition, however, nine days after Doe obtained her abortion—that is to say, long after the preliminary injunction against HHS had served its purpose in addition to run its course. As the petition itself thus acknowledges (p. 19), the only portions of the injunction that the courtroom of appeals addressed “are at nowadays moot.”
That mootness is only 1 of many reasons why the SG’s “Petition” is a singularly remarkable document. I’ve never seen anything similar it, peculiarly non emanating from the Office of the Solicitor General. In many respects this filing departs, sometimes dramatically, from the justly lauded, traditional standards in addition to practices of that office. Indeed, it is hard to avoid the conclusion that it is fundamentally a press release, for an audience other than the Justices of the Supreme Court itself. I hope I am mistaken close that—but it's hard to come upward amongst whatever other explanation for it.
In this post, I’ll seek to seat many of the most remarkable characteristics of the SG’s petition. First, however, some background is inwards order, without which it’s hard to empathize many of the ways inwards which the petition is so irregular—and how it deviates from the norms of the Office.
Jane Doe entered the U.S. of A. of America unaccompanied, without legal documentation, inwards early September. After existence detained at the border, she was remanded to custody inwards a private shelter inwards Texas, pursuant to a cooperative understanding betwixt the shelter in addition to HHS’s Office of Refugee Resettlement (ORR).
Doe learned from a medical evaluation that she was pregnant, in addition to she chose to terminate her pregnancy. Pursuant to Texas law, in addition to amongst the assistance of an appointed guardian promotion litem in addition to attorney promotion litem, she sought a judicial bypass of Texas’s parental notification in addition to consent requirements. The Texas courts provided her that bypass on September 25, determining that she was mature plenty to create upward one's take away heed for herself whether to go on the pregnancy—a finding that the U.S. of A. of America has non disputed.
Texas law, however, also requires a adult woman to undergo counseling, at to the lowest degree 24 hours before the abortion, from the Dr. who is to undertake the procedure. Therefore, Doe sought to obtain the state-mandated counseling on September 28 in addition to 29, close the terminate of her get-go trimester.
HHS, however, refused to permit anyone at the shelter to carry Doe to a facility for such counseling, or fifty-fifty to allow others, such every bit Doe's guardian promotion litem, to carry her there. What’s more, HHS tried to dissuade Doe from going frontwards amongst her choice. She did non modify her mind, however. And yet still HHS would non budge: It ordered the private contractor that was detaining Doe non to permit anyone to assist convey Doe to a hospital for counseling in addition to a subsequent abortion.
At this signal inwards the narrative, it’s of import to stress several additional facts:
1. The regime has non contested that the Due Process Clause of the Fifth Amendment protected Doe’s right to obtain an abortion without the imposition of “undue burdens” 1 time she received the judicial bypass in addition to had the counseling. As Judge Millett explained (p. 21a), “[t]he government—to its credit—has never argued or fifty-fifty suggested that J.D.’s status every bit an unaccompanied pocket-size who entered the U.S. of A. of America without documentation reduces or eliminates her constitutional right to an abortion inwards compliance amongst province constabulary requirements.” Therefore, if Doe were non inwards HHS custody, HHS would take away hold had no practical or legal authority to forestall her from having an abortion.
2. In theory, Doe could take away hold consented to live returned to her abode country. However: that speculative physical care for would convey some time; she alleged (according to Judge Millett) the peril of life-threatening abuse inwards her acre of origin; and, most importantly for introduce purposes, an elective abortion would live illegal inwards her abode country.
3. If Doe were a few months older—no longer a minor—she would take away hold been detained past times the Department of Homeland Security’s Immigration Customs in addition to Enforcement (ICE) division, rather than HHS, in addition to DHS would have permitted her to move to a hospital to obtain the counseling in addition to abortion. Indeed, inwards such a illustration ICE itself would “arrange for shipping at no toll to the detainee for the medical appointment.”
5. Although HHS refused to conform its practices to those of DHS in addition to BOP, the Solicitor General does not argue that the agency could maintain Doe inwards custody beyond the fourth dimension when she would live permitted or able, nether Texas law, to obtain an abortion. (Under Texas law, abortions are illegal after xx weeks, in addition to some doctors turn down to perform an abortion after to a greater extent than than 15.6 weeks.) As Judge Kavanaugh pose the signal inwards the courtroom of appeals (p. 56a), “[t]he Government has . . . expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks authorisation to block Jane Doe from obtaining an abortion.” (There’s some incertitude close whether that was HHS’s seat all along, but for introduce purposes what matters is that the SG in addition to HHS do non at nowadays assert such an authority—not expressly, anyway.)
At this signal you lot mightiness good live wondering: If HHS was non asserting the powerfulness to maintain Doe inwards custody until it would live impossible for her to obtain an abortion, what, exactly, was HHS trying to accomplish?
The reply to this enquiry involves the HHS do of trying to uncovering "sponsors" to attention for unaccompanied minors who acquire inwards the country. Agency regulations supply that such sponsors must either live related to the pocket-size or take away hold some “bona fide social relationship” amongst the fry that “existed before” her arrival inwards the United States. HHS has been seeking to uncovering such a sponsor to convey custody of Doe since her arrival inwards September—alas, to no avail.
The principal dispute inwards the suit was whether HHS had the legal authority to go on to forestall Doe from existence able to move to the hospital for her medical procedure for an unknown farther current of time—on superlative of the vi or vii weeks that had already passed since Doe chose to take away hold an abortion--to allow HHS to a greater extent than time to uncovering a sponsor to whom it could transfer Doe. The regime effectively conceded that if in addition to when Doe had been transferred to the attention of a sponsor, she would so take away hold been able to obtain an abortion without farther HHS-imposed obstacles. See Petition p. 2a (“The panel bulk recognized that if Ms. Doe, who was so unopen to xv weeks pregnant, secured a sponsor, she would live able to lawfully obtain an abortion on her own.”).
On Oct 13, Doe sued several HHS officials, claiming that past times continuing to require the shelter to detain her, they were imposing an “undue burden” on her exercise of her constitutional right to terminate her pregnancy. In particular, Doe argued that the regime lacked whatever skillful ground to insist on transferring her to a sponsor—or taking several to a greater extent than days or weeks to seek to effect such a transfer—before allowing Doe to move to a hospital to exercise that right. And inwards the meantime, every bit Judge Millett explained (p. 14a), every solar daytime that passed was some other solar daytime that Doe was compelled past times HHS to carry an unwanted pregnancy, in addition to also increased the wellness risks to her 1 time she did have the abortion procedure.
On Wednesday, Oct 18, Judge Chutkan granted a de facto preliminary injunction (styled every bit a TRO) forbidding HHS from interfering amongst Doe’s powerfulness to obtain the counseling in addition to so an abortion. After obtaining this preliminary relief, on Thursday, Oct 19, Doe traveled to a clinic, where a Dr. provided her amongst the counseling that Texas constabulary requires every bit a precondition to an abortion.
At that point, the regime appealed the district courtroom order, in addition to made a motion to the courtroom of appeals for an emergency remain of the district courtroom order, pending appeal. Influenza A virus subtype H5N1 panel of the D.C. Circuit heard declaration on the motion for an emergency remain on Friday, Oct 20. Later that day, past times a 2-1 vote, it stayed those portions of the injunction that prohibited HHS from preventing others from transporting Doe to a facility for the abortion in addition to “from interfering amongst or obstructing J.D.’s access to abortion counseling or an abortion.” The bulk (Judges Henderson in addition to Kavanaugh) held that so long every bit the sponsorship transfer physical care for “occur[ed] expeditiously,” such a delay would non unduly burden Doe’s constitutional right, in addition to it gave the regime until at to the lowest degree Oct 31 to consummate that physical care for of transferring Doe to a sponsor. Judge Millett dissented in addition to filed an sentiment shortly thereafter.
On Sunday, Oct 22, Doe filed a petition for rehearing en banc amongst honor to the stay. At 3:00 p.m. on Tuesday, Oct 24, the total courtroom of appeals granted the petition for rehearing in addition to denied the government’s motion for a remain pending appeal because it had non satisfied “the stringent requirements for a stay.” The en banc courtroom remanded the illustration to the district courtroom “for farther proceedings to amend the effective dates inwards * * * its injunction.” Judge Millett 1 time once to a greater extent than wrote an sentiment of her own, but the courtroom bulk did non number a total opinion; its judgment simply stated that they had reached their conclusion “substantially for the reasons laid forth inwards the Oct 20, 2017 dissenting declaration of Circuit Judge Millett.”
About 2 hours later, Judge Chutkan amended her injunction to supply that HHS was “[r]equired,” inter alia, to allow Doe to live transported past times either her guardian or attorney promotion litem to an abortion provider for counseling (if necessary) in addition to the abortion physical care for itself, “promptly in addition to without delay, on such dates, including today, specified past times J.D.’s guardian promotion litem or attorney promotion litem.”
At close 4:00 a.m. the adjacent morning, Wednesday, Oct 25, the shelter staff arrived amongst Doe at the clinic, in addition to the Dr. who had counseled her dorsum on Oct nineteen performed the abortion shortly thereafter. Thus, HHS complied amongst the Oct 24 injunction: It did non forestall Doe’s move to the hospital or seek to interfere amongst her abortion. (At the terminate of this post I’ll take away hold to a greater extent than to say close the specific communications betwixt the parties on the nighttime of the 24th/25th, betwixt the issuance of the injunction in addition to the abortion.)
* * * *
Nine days later, the SG filed his petition for certiorari, asking the Supreme Court to vacate the courtroom of appeals’ judgment—which was, recall, only a conclusion to deny the government’s motion for an emergency remain of the district courtroom injunction pending appeal.
With that background at nowadays established, hither are some of the most remarkable things close the SG’s petition:
1. The Missing Career Attorneys.
The oddity of the petition begins on the covert page.
The petition is signed past times the Solicitor General, 4 other political appointees at DOJ, in addition to 2 career lawyers who take away hold been detailed to the Office of the Assistant Attorney General for the Civil Division (or so I am informed). No lawyers from HHS signed the brief. No career lawyers inwards the Civil Division (other than 1 who is detailed to the AAG’s Office)—and no Civil Appellate supervisors at all, other than the political appointee—signed the brief. And, most tellingly, no Assistant to the Solicitor General signed the brief, although at that topographic point are several Republican in addition to conservative attorneys inwards that Office. (By contrast, OSG Assistants have, for instance, signed the Office's move ban in addition to Masterpiece Cakeshop briefs, every bit 1 would expect—those briefs are certainly controversial, but they’re zero similar the Hargan petition inwards damage of departure from established norms.) There are 2 possible explanations for this absence. Either the Solicitor General declined to assign the illustration to whatever Assistant--which would live a important departure from ordinary practice--or (more likely) an Assistant worked on the petition but declined to sign it. As far every bit I’m aware, the absence of an Assistant’s signature on a petition or merits brief is really rare--perhaps unprecedented inwards recent decades. (An alum of the Office has related to me that maybe something similar happened inwards the 1980’s when Charles Fried was Solicitor General.)
There are really skillful reasons, some of which I laid out below, why so many attorneys apparently declined to live associated amongst this filing.
2. The Threadbare (at best) Argument on the Merits of the Fifth Amendment Question.
The atomic number 82 department of the SG’s Petition inwards Hargan, entitled “Reasons for Granting the Petition,” asserts right at the outset (pp. 17-18) that the enquiry this case once “presented” was a noun enquiry nether the Fifth Amendment, namely, “whether the regime must facilitate access to an abortion that is non medically necessary to save the life or wellness of an unaccompanied alien pocket-size who was apprehended unlawfully entering the United States, who declines to asking voluntary departure to her abode country, who has non yet identified a qualified sponsor to whom she tin live released, in addition to who thus is inwards the government’s custody.”
In an ordinary petition, the Solicitor General would proceed to offering a substantial declaration (even if non every bit extensive every bit inwards a merits brief) close why the courtroom below erred inwards deciding that question. The Hargan petition, however, devotes only iii sentences to the enquiry of whether HHS violated Doe’s Fifth Amendment rights (p. 18), in addition to does non cite a unmarried legal authorisation in back upward of its "argument":
Ms. Doe contended that the government’s actions every bit her custodian were obstructing her access to an abortion inwards violation of the Fifth Amendment, but she could take away hold left regime custody past times seeking voluntary departure, or past times working amongst the regime to seat a suitable sponsor who could convey custody of her inwards the United States. Given those options, the regime was nether no obligation to facilitate Ms. Doe’s abortion. . . . [The panel’s] narrow ruling, which had the potential to permit Ms. Doe to access an abortion without requiring the regime to facilitate it, was far to a greater extent than appropriate inwards the circumstances of this illustration than the en banc court’s sweeping constitutional dominion in addition to the district court’s companionship for immediate relief that would live final rather than “temporary.”
That’s it.
Other than the unadorned ipse dixit that the panel’s judgment “was far to a greater extent than appropriate” than that of the en banc court, these iii sentences include mere whispers of 2 arguments, neither of which is substantial, in addition to neither of which the brief itself bothers to defend.
First, the regime suggests that HHS’s actions did non burden Doe’s constitutional right at all—or non much, anyway—because “she could take away hold left regime custody past times seeking voluntary departure, or past times working amongst the regime to seat a suitable sponsor who could convey custody of her inwards the United States.” This bare-bones declaration hardly warrants serious consideration—which is presumably why the SG offers no support or declaration on its behalf. In particular, Doe's hypothetical “voluntary departure” was non a realistic option, for the reasons Judge Millett explained—and, inwards whatever event, Doe could non take away hold obtained an abortion inwards her abode country. (See also Justice Kagan’s recent retort inwards Jennings v. Rodriguez (p. 25) to Deputy SG Stewart’s self-described “most extreme answer” that a criminal alien detained for to a greater extent than than vi months “always has the choice of terminating the detention past times accepting a final companionship of removal in addition to returning home”: “I convey it that that’s your most extreme answer,” quipped Justice Kagan, “because it doesn’t audio all that good.”). Nor does the SG brand whatever sweat to present that Doe would take away hold been expeditiously transferred to a “suitable sponsor”—and so permitted to obtain the abortion—if only she had “worked amongst the government.”
All that remains, then, is the 3rd sentence, which invokes the government’s mantra, repeated no fewer than 10 times inwards the course of written report of the petition, that it was permissible for HHS to prohibit its contractor from allowing Doe to go to the hospital because the Constitution does non require the regime to “facilitate” an abortion. As Judge Millett wrote (p. 27a), however, this is mere “verbal alchemy.” Judge Chutkan’s injunction did non require the accused regime officials to “facilitate” an abortion or, for that matter, to do anything. That injunction was, for all relevant purposes here, exclusively prohibitory: In the words of the injunction itself (pp. 66a-67a), HHS was enjoined to “allow J.D. to live transported past times either her guardian or attorney promotion litem” to the clinic, in addition to was prohibited from “interfering amongst or obstructing J.D.’s access to abortion counseling or an abortion.” As Judge Millett elaborated (p. 29a):
The regime demand non pay for J.D.’s abortion; she has that covered (with the assistance of her guardian promotion litem). The regime demand non carry her at whatever phase of the process; J.D. in addition to her guardian promotion litem take away hold arranged for that. Government officials themselves do non fifty-fifty take away hold to do whatever paperwork or undertake whatever other administrative measures. The contractor detaining J.D. has advised that it is willing to grip whatever necessary logistics, just every bit it would for medical appointments if J.D. were to go on her pregnancy. The regime also admitted at oral declaration that, inwards calorie-free of the district court’s order, the Department of Health in addition to Human Services does non fifty-fifty demand to consummate its ain self-created internal “best interests” form. See Oral Arg. 31:40-33:15.
In sum, the injunction, fairly understood, only required HHS “to refrain from barring its contractor from allowing J.D. to have the medical care” (p. 6a). Accordingly, even at a fourth dimension inwards which robust claims of complicity take away hold run riot, the SG’s insistence that Judge Chutkan’s injunction required HHS to “facilitate” an abortion surely is a span likewise far.
After all, if HHS’s uncomplicated failure to prohibit Doe’s guardian promotion litum from transporting her to the hospital genuinely meant that HHS “facilitated” the ensuing abortion, it would follow that DHS in addition to BOP regularly “facilitate” abortions when they carry their custodial detainees to clinics so that those women may obtain such procedures. Surely that cannot live the view of the United States--yet it is the logical implication of the SG’s "facilitation" argument.
Indeed, if 1 took that declaration seriously, so fifty-fifty HHS itself was asking the courtroom for acquire out to live able to "facilitate" Doe's abortion. Recall the final result HHS was seeking--namely, an chance to transfer Doe to a sponsor before she could exercise her rights. If the failure to stand upward inwards the way of the guardian promotion litem's efforts to convey Doe to the hospital would final result inwards HHS's "facilitation" of Doe's abortion, every bit the SG argues, so it stands to ground that HHS's desired transfer of Doe to a sponsor’s custody--and its subsequent failure to do anything to forestall that sponsor from taking Doe to the clinic--would likewise final result inwards HHS "facilitation." Indeed, every bit Judge Millett explained (p. 30a), transferring Doe to a sponsor would, if anything, take away hold required far more use of governmental resources than the uncomplicated transfer of Doe from the contractor to the custody of her guardian promotion litem.
The paucity of the SG's declaration on the Fifth Amendment enquiry is peculiarly noteworthy inwards calorie-free of the separate opinions filed past times dissenting judges on the en banc courtroom of appeals. Both Judge Henderson in addition to Judge Kavanaugh offered arguments inwards HHS’s defence that do non appear inwards the petition itself: Judge Henderson argued at length (pp. 35a-53a) that Doe has no due physical care for rights at all. Judge Kavanaugh, for his part, rejected that extreme argument, yet he offered instead an declaration sounding inwards paternalism—namely, that the regime had an involvement inwards transferring Doe to the custody of a sponsor before she could obtain an abortion inwards companionship to allegedly “place the pocket-size inwards a improve seat when deciding whether to take away hold an abortion” (p. 60) in addition to to assist Doe “navigate what is undeniably a hard situation” (p. 63a).
Strikingly, the SG’s petition does not rely upon either of these arguments offered past times its allies inwards the courtroom of appeals—indeed, it doesn’t fifty-fifty depict them.
3. The Failure to Address the Actual Question the Court of Appeals Decided.
In whatever event, the Solicitor General is incorrect to suggest that the enquiry the courtroom of appeals decided was the ultimate merits of the Fifth Amendment “undue burden” enquiry described at the outset of the “Reasons for Granting” department of the petition. The courtroom of appeals acted inwards the context of interlocutory relief, in addition to only on a motion past times the regime for an emergency remain of the district court’s injunction pending appeal. Therefore the actual number that courtroom addressed in addition to decided was non the ultimate merits of the constitutional question, every bit such, but instead—as that courtroom expressly noted (p. 19a)—whether HHS had "met the stringent requirements for a remain pending appeal."
The petition does non fifty-fifty venture to debate that the courtroom of appeals erred on that question—the only 1 the courtroom below purported to answer. Indeed, the Solicitor General neglects to bring upward what the standards for a remain pending appeal mightiness be, allow solitary to say anything close whether the regime satisfied those “stringent” standards. He does non address Judge Millett’s signal (p. 31a) that the courtroom of appeals could only remain Judge Chutkan’s injunction if she had abused her discretion--and thus he also fails to debate that the district approximate inwards fact abused that discretion. All of which is to say that the petition is soundless on the actual enquiry the courtroom of appeals decided.
4. The Failure to Explain Why Any Question Presented inwards the Case is Cert.-worthy.
The Supreme Court grants petitions for a writ of certiorari "only for compelling reasons," in addition to rarely grants a petition "when the asserted error consists of erroneous factual findings or the misapplication of a properly stated dominion of law." Supreme Court Rule 10. Yet o
n the absolutely critical enquiry of why the Court's review of the courtroom of appeals’ interlocutory conclusion is "cert.-worthy"—the cardinal enquiry that typically dominates petitions for certiorari—the SG’s brief says nothing at all. That is non an exaggeration or hyperbole. Nothing. (Later inwards the brief, inwards the give-and-take of whether the Court should vacate the judgment below, the petition does include a paragraph (pp. 21-22) purporting to explicate why "absent mootness, this Court probable would take away hold granted certiorari." That paragraph, however, does non offering whatever such reasons, other than that "there is no precedent from this Court (or whatever court) holding that the federal regime imposes an 'undue burden' by refusing to facilitate access to an abortion for a pregnant unaccompanied pocket-size who retains the liberty to leave regime custody past times returning to her home country or past times helping to seat a suitable sponsor." That absence of whatever similar previous cases, however, is patently non a ground for the Court to grant cert.--indeed, it demonstrates why this illustration is so idiosyncratic in addition to thus why cert. would live inappropriate here.)
In this instance, the SG's quiet is understandable, because at that topographic point is no ground for the Court to grant certiorari. There is no circuit-split. No courtroom declared whatever federal statute to live unconstitutional. The ruling below was interlocutory--and so only on the enquiry of whether a remain pending appeal should live granted, in addition to thus on the enquiry whether the district approximate abused her discretion. The panel bulk did non number an sentiment on the merits (or fifty-fifty say much close whether the criterion for an emergency remain was met). As explained inwards Point 6, below, the conclusion should take away hold no precedential effect fifty-fifty inwards this case, allow solitary inwards futurity cases. The agency's policy hither is novel in addition to idiosyncratic, non to bring upward inconsistent amongst the policies of other federal agencies. Moreover, the illustration is highly fact-intensive, in addition to deals amongst legal arguments offered past times the regime that take away hold never been raised before in addition to mightiness never live raised 1 time to a greater extent than (arguments that the courtroom of appeals did non fifty-fifty resolve on the merits, inwards whatever event).
The case, inwards other words, is non cert.-worthy, whatever 1 thinks of the merits of the underlying Fifth Amendment question--which in all probability explains why the Solicitor General does non endeavor to debate otherwise. It's a cert. petition that fails to offering whatever purported, allow solitary compelling, ground for the Court to grant cert. [UPDATE: This signal has largely been overlooked inwards the disceptation close the petition's focus on the deportment of Doe's counsel (see Point 9, below)--but it is the in all probability the most inexplicable, unprecedented, in addition to unjustifiable thing close the petition. (Also, every bit I speak over inwards Point 7 below, the fact that the Solicitor General does non argue, allow solitary show, that the illustration is cert.-worthy agency that his asking for the Court to vacate the judgment below should live rejected out of hand.)]
5. The Failure to Engage amongst the Opinions Below.
The Solicitor General’s petition does non fifty-fifty describe, allow solitary discuss, the analysis offered inwards whatever of the iii opinions filed past times the judges on the courtroom of appeals. It does not, for example, convey number amongst Judge Millett’s quite powerful counterarguments—or fifty-fifty seat what they were. Most importantly, Judge Millett explained (p. 12a) that HHS offered no skillful ground for insisting that Doe live transferred to a sponsor before exercising her constitutional right: the 2 things are not, she explained, “mutually exclusive” in addition to “can proceed simultaneously." The agency's "desire to pursue that [transfer] physical care for has zero to do amongst in addition to is non a ground for forcing J.D. to go on the pregnancy.” The Petition does non offering whatever ground to think Judge Millett was incorrect close that. Nor, every bit noted above, does the SG fifty-fifty venture to brand the paternalistic declaration that Judge Kavanaugh offered for HHS’s preference for a pre-abortion transfer of custody (viz., that transfer to a sponsor would “place the pocket-size inwards a improve seat when deciding whether to take away hold an abortion”).
The SG’s conspicuous conclusion to ignore what the judges below wrote is, to say the least, non the ordinary fare of an OSG petition.
6. The Unconvincing Argument for Vacatur of the Mooted Judgment Below.
Even if the Solicitor General had offered whatever ground for final that the courtroom of appeals erred, in addition to that the illustration is cert.-worthy--and, every bit explained above, he does neither--he concedes (p. 19) that whatever disceptation concerning the lawfulness of Judge Chutken's preliminary relief is at nowadays moot. The SG thus asks the Court to vacate the courtroom of appeals’ judgment nether the Munsingwear doctrine, just every bit he of late did inwards the mooted-out “travel ban” cases.
The only noun ground the SG offers for such vacatur, however, is that “the courtroom of appeals’ conclusion on Ms. Doe’s now-moot claim for injunctive relief could take away hold important legal consequences” (p. 23). In particular, the SG asserts that the courtroom of appeals’ judgment mightiness take away hold such “legal consequences” for the adjudication of Doe’s remaining Bivens claim for damages, in addition to for whatever possible activeness on behalf of a not-yet-certified course of written report of similarly situated pocket-size aliens inwards HHS custody. Such futurity litigation, argues the SG (p. 24), “should non live constrained past times the D.C. Circuit’s ‘preliminary’ adjudication of the merits of the Fifth Amendment claim. . . . The en banc court’s conclusion should non live left on the books for utilization past times these in addition to other plaintiffs.”
As the SG undoubtedly knows, however--and every bit DOJ would certainly debate inwards whatever follow-on litigation--the courtroom of appeals’ judgment hither should take away hold niggling or no “constraining” effect on whatever futurity litigation: It was only an interlocutory judgment on a motion to remain a district courtroom injunction pending appeal, in addition to the only thing the en banc courtroom decided was whether the regime had met the “stringent” requirements for such a stay. The courtroom of appeals did non fifty-fifty laid forth its reasoning; it simply stated that it had reached its conclusion “substantially for the reasons laid forth inwards the Oct 20, 2017 dissenting declaration of Circuit Judge Millett.” To live sure, the conclusion below probable reflects, at to the lowest degree to some extent, what the diverse judges on the en banc courtroom of appeals mightiness do on the merits if it ever reaches them inwards futurity litigation—but that would live truthful whether or non the Supreme Court vacates the courtroom of appeals’ judgment. The relevant signal is that the en banc court's judgment should take away hold no stare decisis effect, allow solitary whatever preclusive, or res judicata, deportment on on futurity regime litigation of the merits of the underlying Fifth Amendment question.
Accordingly, it does non genuinely thing whether the Court does or does non vacate the courtroom of appeals’ judgment: Any futurity litigation should proceed inwards just the same manner, in addition to amongst just the same results, regardless--something the SG's vacatur give-and-take does non acknowledge, allow solitary address.
7. The Argument that the Court Should Vacate the Judgment Below Even if It Concludes that the Petition is Not Cert.-Worthy.
As the petition concedes (p. 23 n.4), the Solicitor General's longstanding view has been that the Court typically should non fifty-fifty consider the enquiry of vacatur unless it get-go concludes that a petition is cert.-worthy: “[W]hen a illustration has go moot after the courtroom of appeals’ ruling, but before a petition for certiorari is granted, this Court unremarkably should decline to vacate the conclusion below if the illustration would non take away hold warranted review on the merits.” (As far every bit I know, the Court inwards recent years has typically followed the SG’s proposition inwards this respect. See, e.g., the cases cited inwards Clarke v. United States, 915 F.2d 699, 713-715 (D.C. Cir. 1990) (en banc) (Edwards, J., dissenting). [UPDATE: As the Court of late explained, "[t]he equitable remedy of vacatur ensures that 'those who take away hold been prevented from obtaining the review to which they are entitled [are] non ... treated every bit if at that topographic point had been a review,'" Camreta v. Greene, 563 U.S. at 712 (quoting Munsingwear, 340 U.S. at 39); but the Court has "left lower courtroom decisions intact when mootness did non deprive the appealing political party of whatever review to which he was entitled." Id. at 712 n.10.]) That ought to live the start in addition to goal of the petition's asking for vacatur because, every bit noted inwards Point 4 above, the Solicitor General does non fifty-fifty seek to present that at that topographic point is whatever ground for the Court to grant certiorari.
Startlingly, however, the SG so proceeds inwards the really same footnote to insist that the Court should vacate the courtroom of appeals’ judgment inwards this case, “even if review were non otherwise warranted”! He cites no authorisation for this suggestion, which is opposite to the Office’s traditional view. Moreover, the only reason he offers inwards back upward of it is that “the government’s reasonable reliance on the representations of opposing counsel” allegedly “frustrated the government’s chance to seek this Court’s review.” I hope it is obvious why this is a non sequitur: Whether or non the SG had an “opportunity” to seek the Court’s review before than on Nov 3, in addition to whether or non the actions of opposing counsel inwards whatever way stymied or delayed that chance (on which to a greater extent than below), the number the SG is addressing inwards the footnote is whether the Court should vacate the courtroom of appeals’ judgment assuming the Court's review of the judgment is non warranted. The reply to that enquiry ought to live “no,” regardless of the appointment on which such an unpersuasive petition is filed, in addition to regardless of the nature of the attorneys’ correspondence preceding that filing—factors that take away hold no bearing at all on the enquiry of whether vacatur is appropriate inwards a non-cert.-worthy case.
8. The Unexplained Request that the Supreme Court Decide inwards the First Instance Whether the Plaintiff's Unresolved Claims on Behalf of an Uncertified Class Remain Justiciable.
The Solicitor General farther argues (pp. 24-26) that Doe’s claims for prospective relief on behalf of a course of written report of minors are at nowadays nonjusticiable because her ain claims “no longer introduce a alive controversy” in addition to the district courtroom has non yet certified the class. That may or may non live correct—it probable depends (see pp. 25-26) on whether the course of written report claims “are ‘so inherently transitory that the trial courtroom volition non take away hold fifty-fifty plenty fourth dimension to dominion on a motion for course of written report certification before the proposed representative’s private involvement expires’” (quoting Genesis Healthcare Corp., 569 U.S. at 76). In whatever event, that’s a enquiry for Judge Chutkan’s consideration inwards the get-go instance.
For some reason, however, the SG asks the Supreme Court itself to remand the illustration to the courtroom of appeals “with instructions to direct the district courtroom to dismiss Ms. Doe’s claims for injunctive relief insofar every bit they relate to the government’s handling of important unaccompanied minors” (p. 25; consider also pp. i (Question Presented), 29 (Conclusion)). The petition offers no ground why the Court should convey such an unusual step, which would bypass the ordinary, appropriate physical care for for consideration of such questions of course of written report relief 1 time a putative course of written report representative has received a remedy sufficient to cure her ain injury. And, 1 time again, the SG fails to cite whatever legal authorisation inwards back upward of his asking for the Court to direct such a novel, premature disposition of the pending, heretofore unaddressed claims.
9. The Petition’s Obsessive, Misguided Focus on Alleged Misconduct of Doe’s Counsel.
And so nosotros come, finally, to the aspect of the petition that has already engendered so much populace notoriety: its highly unusual focus on a serial of communications betwixt the parties’ counsel during the lastly few hours before Doe’s abortion, in addition to its shocking proposition that the Court should consider taking “disciplinary action” against Doe’s counsel based upon that correspondence in addition to “what appear to live cloth misrepresentations in addition to omissions to regime counsel designed to thwart this Court’s review” (p. 26).
The Solicitor General is strangely obsessed amongst this ancillary aspect of the case: He leads with it on the really get-go pages of his petition, in addition to devotes to a greater extent than than 12 of the petition’s 28 pages to the thing (see pp. 1-2, 11-17, 19, 21, 26-28). As far every bit the yet-available tape reflects, however, there’s non much, if anything, to it: It’s at best a storm inwards a teapot, in addition to maybe something much to a greater extent than troubling--namely, a wholly unwarranted accusation of misconduct on the portion of opposing counsel.
The gist of the dispute is based on the next events of Oct 24th in addition to 25th, inwards the 10 hours or so preceding the abortion:
When Judge Chutkan issued her amended preliminary injunction tardily inwards the afternoon of Tuesday, Oct 24, the parties all assumed (as did the injunction itself) that Texas constabulary required Doe to obtain counseling 1 time to a greater extent than at to the lowest degree 24 hours before she could take away hold her abortion, because the Dr. who previously counseled her on Oct 19th was non available to perform the physical care for (and Texas constabulary requires the same Dr. to perform both functions). [UPDATE: The Solicitor General emphasizes (p. 12) that Doe's counsel themselves represented to Judge Chutkan, on that Tuesday afternoon, that the get-go Dr. was non available. That is true, but counsel did non do so because they had a legal obligation to so inform the courtroom or the government; instead, they offered that data close the get-go Dr. because they were asking the courtroom to amend the injunction to require the shelter in addition to the regime to allow Doe to move to the hospital twice--something that Judge Chutkan promptly did. See p. 66a (requiring defendants to allow Doe to live transported past times either her guardian or attorney promotion litem to the designated abortion provider "in companionship to obtain the counseling required past times province constabulary in addition to to obtain the abortion procedure, inwards accordance amongst the abortion providers’ availability in addition to whatever medical requirements").]
[UPDATE to add together farther details: Counsel informed the courtroom that a novel Dr. was available that eve for counseling, in addition to thus all parties assumed that Doe would take away hold the abortion the next evening, Midweek the 25th. Doe's representatives instructed the shelter to carry her straightaway to the hospital at about 6:00 p.m. on the 24th. That trip was unsuccessful, however, because the novel Dr. unexpectedly had to acquire out the hospital before Doe arrived.] Accordingly, shortly after 7:00 p.m., Doe’s counsel informed regime counsel that Doe had rescheduled her appointment at the hospital for the adjacent morn (Wednesday the 25th) at 7:30 a.m. At the same time, according to the SG (and I take away hold no ground to enquiry this), Doe’s attorney promotion litem informed the Assistant U.S. Attorney (AUSA) that because Doe’s previous Dr. was non available in addition to because it was non viable for her to have counseling from some other Dr. until the Midweek morn appointment, the abortion could non occur until Th morn the 26th.
With that novel understanding of what was probable to occur, the SG prepared to file an application to the Supreme Court for extraordinary relief on Midweek morning, the 25th, in addition to informed the Clerk’s Office in addition to respondent’s counsel of that planned filing. Notably, the SG chose not to inquire the Chief Justice for an administrative remain inwards the interim, presumably on the understanding that it was non necessary inwards companionship to forestall Doe from obtaining her abortion.
That evening, Doe’s representatives got intelligence that Doe’s master copy doctor—the 1 who had counseled her on the 19th—might be available to perform the abortion the adjacent morning; accordingly, they rescheduled her appointment from 7:30 a.m. to 4:15 a.m. At 9:30 p.m., Doe’s guardian promotion litem emailed the Texas shelter in addition to the AUSA to inform them of the novel appointment time—a stair that was necessary inwards companionship to inform the shelter employees of when they had to allow Doe’s carry to the clinic. The guardian promotion litem’s e-mail did non specifically bring upward that the novel appointment mightiness live amongst Doe’s previous Dr. (something that was non yet confirmed), nor that Doe mightiness obtain an abortion at that appointment if the get-go Dr. were able to attend. Even so, in addition to every bit the SG acknowledges (pp. 14-15), the unusual fourth dimension of the rescheduled appointment naturally “caused shelter staff to wonder afterwards that nighttime whether the nature of the appointment also mightiness take away hold changed.”
Sometime after midnight, early the 25th, Doe in addition to her representatives confirmed that the master copy Dr. could be introduce at 4:15, in addition to could perform the abortion then. They did non send whatever farther communication to the regime at that point.
In the wee hours of Midweek morning, the shelter allowed Doe to live transported to the clinic, in addition to shelter staff arrived amongst her at that topographic point at 4:15 a.m., at which signal they confirmed their suspicion that she intended to obtain an abortion at that appointment. Shelter staff straightaway e-mailed regime personnel to inform them that the physical care for was proceeding. The SG’s petition does non reverberate whether the AUSA or shelter staff told anyone inwards the SG’s Office close the modify inwards appointment time—and their suspicions of the possible reasons for that change—earlier, betwixt 9:30 p.m. in addition to 4:30 a.m. What is clear, however, is that the regime did non convey whatever steps during those vii hours, after it learned of the really unusual 4:15 a.m. appointment time, to inquire the Court to intervene to forestall Doe’s carry to the hospital that morning.
At 10:00 a.m., Doe’s counsel informed the regime that Doe had obtained her abortion.
Based largely upon this laid of facts (and 1 other central of communications, discussed below), the SG at nowadays makes the extraordinary proposition (p.26) that the Court “may wishing to number an companionship to present sweat why disciplinary activeness should non live taken against respondent’s counsel—either straight past times this Court or through referral to the province bars to which counsel belong—for what appear to live material misrepresentations in addition to omissions to regime counsel designed to thwart this Court’s review.” The SG farther represents (p.28) that it “appears” that Doe’s counsel may take away hold violated “duties to this Court in addition to to the Bar,” warranting “disciplinary action.”
These are extremely serious charges, including against swain members of the Supreme Court Bar, in addition to the proposition that the Court convey steps to trigger disciplinary proceedings is highly irregular, if non unprecedented inwards a petition. Yet, inwards keeping amongst his do inwards balance of the petition, the Solicitor General does non offering a unmarried authority, or legal citation, inwards back upward of his inflammatory suggestions of attorney wrongdoing. In particular, in addition to every bit I explicate farther below, the petition does not point to fifty-fifty a unmarried “misrepresentation,” cloth or otherwise, that counsel made, nor does it identify the “duties” that counsel are said to take away hold violated.
The ground for the SG’s accusations appears to live an central of communications betwixt counsel for the parties early inwards the eve on Tuesday, Oct 24, unopen to 10 hours before the abortion.
According to the petition (pp.12-13), regime counsel made 2 requests of Doe’s counsel inwards those communications. First, at 6:13 p.m., inwards a telephone message to Doe’s counsel, regime counsel “ask[ed] to live apprised of the timing of whatever appointments” at the clinic. Thirteen minutes later, regime counsel “followed upward amongst an e-mail to respondent’s counsel,” inwards which he or she asked to live notified of the timing of “tomorrow’s procedure.” [UPDATE: At that time, the parties all believed that Doe would take away hold her 2nd counseling session that Tuesday evening, in addition to thus that she'd take away hold her abortion "tomorrow," i.e., on Midweek evening.]
At 6:28 p.m., just 2 minutes after regime counsel's e-mail, Doe’s counsel wrote dorsum that “[a]s shortly every bit nosotros empathize the clinic’s schedule tomorrow nosotros volition allow you lot know.”
It’s clear from this concern human relationship inwards the petition that Doe’s lawyer did brand a representation to maintain the regime informed of “the clinic’s schedule” on Midweek the 25th—indeed, Doe’s representatives had niggling choice but to do so, because such notification of the appointment fourth dimension was necessary inwards companionship to inform the shelter of when it had to allow Doe to live transported to the clinic. Significantly, Doe's counsel honored this commitment: Even before they confirmed the master copy doctor’s availability, they changed Doe’s appointment fourth dimension from 7:30 a.m. to 4:15 a.m. (just inwards illustration the Dr. would live able to live at that topographic point then), in addition to so at 9:30 p.m. on the 24th, they promptly informed the regime of that fourth dimension change--a notice that raised the suspicions of the shelter personnel that maybe the nature of the appointment mightiness change, too.
The Solicitor General, however, claims that Doe's counsel made yet some other guarantee, inwards response to regime counsel's second request (the e-mail of 6:26 p.m.): At 2 places inwards his petition (pp.15, 19) he characterizes her counsel every bit having “acquiesced” inwards the government’s additional “request to maintain regime counsel informed of the timing of the ‘procedure.’” So far every bit the petition reveals, however, Doe’s counsel did zero of the sort, in addition to thus the SG’s accusation of such “acquiescence” is itself a misrepresentation to the Court. In stark contrast to counsel’s commitment to maintain the regime informed of the schedule of Doe’s appointments at the clinic—a commitment they kept—counsel was careful not to concur to regime counsel’s asking to live notified of the timing of the “[abortion] procedure.” [UPDATE: This differential handling past times Doe's counsel of the government's 2 distinct requests was non a illustration of indirection or too-clever-by-half lawyering. They acted inwards both instances to advance the interests of their client: Doe needed the regime to know the timing of her appointments, so that the hospital would allow her to attend them (and so her lawyers shared that information), but she had no involvement inwards telling the regime of the nature of whatever counseling or medical procedures she mightiness obtain at those appointments--indeed, she had skillful ground non to maintain the regime abreast of those details.]
As ACLU National Legal Director David Cole informed the Solicitor General inwards a missive of the alphabet on Oct xxx (in response to a missive of the alphabet from the SG), “[c]ounsel never agreed to supply the regime data close the nature of Ms. Doe’s appointments or to give the regime advance notice of the imminence of the abortion.”
As far every bit I tin tell, Cole is absolutely correct, in addition to the Solicitor General cites zero to contradict it. Accordingly, the SG’s insinuations that Doe’s lawyers made “material misrepresentations,” in addition to that they failed to supply regime counsel amongst data they had promised to share, appear to live exclusively without merit.
The Solicitor General also makes some other argument, however: He suggests (p.28 of the petition) that Doe’s counsel “at to the lowest degree arguably” had an ethical obligation to convey affirmative steps “to notify the regime of th[e] incredibly important development”—which Doe’s counsel only themselves confirmed early Midweek morn the 25th--that Doe’s master copy Dr. was available to perform the abortion that morning. (The petition’s unspoken implication, best I tin empathize it, is that such data was “material” because if Doe’s counsel would take away hold shared it amongst regime counsel at, say, 2 a.m., the Solicitor General would so take away hold asked the Clerk of the Supreme Court to awaken Chief Justice Roberts to inquire him to number an administrative remain of the injunction before the 4:15 a.m. appointment—a remain that the SG could take away hold sought, but declined to seek, whatever fourth dimension after the courtroom of appeals’ ruling at 3:00 p.m. the previous afternoon.)
There does non appear to live whatever ground for this argument, either. To live sure, Doe’s lawyers were aware that every bit of early inwards the eve of the 24th, everyone involved inwards the case, including the regime lawyers, was working on the supposition that the master copy Dr. was non available, in addition to that thus the earliest Doe could obtain an abortion nether Texas constabulary was 24 hours after receiving additional counseling. (Of course, every bit noted above, after Doe's counsel informed the shelter in addition to the regime of the novel 4:15 a.m. appointment time, at 9:30 Tuesday evening, the shelter employees began to suspect that something to a greater extent than mightiness live afoot.) Moreover, it's also truthful that Doe's representatives confirmed on early Midweek morn that the Dr. was available to perform the abortion at the (already scheduled) 4:15 appointment.
At that point, however, why were they obligated to do anything to a greater extent than to facilitate the government’s efforts to farther forestall Doe from exercising her constitutional right, good into her 2nd trimester? [UPDATE: As Ian Wallace puts the signal in a First Mondays podcast on the petition, counsel do non unremarkably take away hold obligations to opposing counsel to brand their lives every bit slow every bit possible.] Indeed, if anything, isn't it to a greater extent than probable that Doe’s counsel had an ethical obligation to their customer not to convey steps that had the potential to undermine her powerfulness to exercise her constitutional right, at to the lowest degree inwards the absence of whatever affirmative legal obligation to brand things easier for the government? [UPDATE: My colleague David Luban argues that it they may really good take away hold had a duty to Doe not to inform the government: "The truthful ethical violation would live if Jane Doe’s counsel revealed confidential data to her adversary that mightiness harm her."]
If at that topographic point were a plausible declaration that Doe’s lawyers had an obligation to inform the regime upon learning of the modify inwards circumstances sometime after midnight on the 25th, 1 would await the Solicitor General to offering some analysis, in addition to some give-and-take of the relevant precedents in addition to authorities. Once again, however, the SG fails to cite a unmarried authorisation for the startling proposition that Doe’s attorneys had whatever such legal or ethical obligation: no Supreme Court Rule; no Model Rule of Professional Responsibility; no rules of the Supreme Court Bar or of whatever province bar; no ABA standards; non fifty-fifty principles derived from treatises on legal ethics.
The petition contains zero of the sort.
In calorie-free of all of this, it is non hard to imagine why career lawyers inwards the Department of Justice, including inwards the Office of the Solicitor General itself, mightiness take away hold refused to piece of job on and/or sign this most irregular in addition to disturbing of petitions, for there are serious questions whether the brief meets the high standards that OSG in addition to DOJ take away hold long insisted upon in addition to that the Court has come upward to await from the federal government.
What’s more, the regime concedes that the disceptation is moot; thus at that topographic point was no demand for expedition. And the regime had three months or more to file its petition—plenty of fourth dimension to hone its arguments, add together actual citations to in addition to give-and-take of legal authorities, engage amongst the opinions below, etc. Yet the SG nevertheless chose to file this really unorthodox petition just nine days after the injunction ran its course. Why the inordinate rush? Once again, the brief itself does non address that question—perhaps because at that topographic point is no skillful answer.
To live clear: It is laudable that the Solicitor General—like dissenting Judges Kavanaugh in addition to Griffith—declines to comprehend Judge Henderson’s “no due physical care for rights” argument. That declaration elides the linguistic communication of the due physical care for clause itself (“nor shall whatever person . . . be deprived of life, liberty, or property, without due physical care for of law”), in addition to would atomic number 82 to some fairly radical in addition to counterintuitive results, such every bit that the Constitution would non prohibit the regime from torturing undocumented aliens, or forcing them to take away hold abortions or other unwanted medical procedures. Judge Millett adds (pp. 16a-17a): “Detainees would take away hold no right to whatever medical handling or protection from abuse past times other detainees. Those amongst diabetes or suffering ticker attacks could live left to drib dead piece their governmental custodian watches.” See also Justice Kagan’s abrupt dismissal of such a regime declaration at pp. 17-18 of the oral declaration transcript inwards Jennings v. Rodriguez.
