David Super
Role at the time: Carmack Waterhouse Professor of Law and Economics at Georgetown University Law Center, in an email to Dispute Index
Statement summary
Georgetown law professor David Super says agencies often reissue policies after a court sets them aside, so DOJ's choice to reissue grant conditions is not especially unusual, and notes that the court declined to bar new conditions. He adds that the administration has a well-established pattern of reissuing policies it has been enjoined from applying in a new format.
“the Department's choice to reissue grant conditions is not especially unusual. ... That being said, this Administration has a well-established pattern of re-issuing the very policies it has been enjoined from applying in a new format.”
Read the full email
In vacatur cases generally, defendant agencies can and often do reissue parts of their policy that the court did not hold unlawful or issue substitute policies that they believe will avoid the court's objections. These are sometimes challenged, either by the prior plaintiffs or by others disadvantaged by the revised policies. Therefore, the Department's choice to reissue grant conditions is not especially unusual. In this case in particular, plaintiffs asked the court to enter an injunction barring the Department from imposing new conditions in the future and the court found such an order excessive based on the record before it. Therefore, the court clearly contemplated that new conditions would be forthcoming and reserved judgment as to their legality until they are issued and possibly brought before the court. That being said, this Administration has a well-established pattern of re-issuing the very policies it has been enjoined from applying in a new format. We saw this, for example, in the broad funding freeze implemented a few days after it took office. Federal courts in Washington, D.C., and in Rhode Island enjoined the freeze, and the Administration responded by rescinding the OMB calling for the freeze but continued to refuse to release the funds. It reissued sweeping tariffs under questionable legal authority after the Supreme Court enjoined President Trump's initial tariffs. And it has indicated that it wants to re-impose restrictions on birthright citizenship despite losing on that, too, in the Supreme Court. Plaintiffs and other grantees therefore should compare any new grant conditions with the court's opinion to see if they are disregarding adverse legal holdings.
Why we used this label
The case concerns DOJ's domestic-violence grant conditions. Super does not judge the conditions themselves. He says reissuing conditions after a vacatur is not especially unusual and that the court expected new ones, but warns that the administration has a pattern of reissuing enjoined policies in a new format and says grantees should check the new terms against the court's holdings, a conditional assessment.