The D.C. Circuit last night rejected the Trump Administration's appeal and motion to stay the district court's temporary restraining order, which ordered the reinstatement of Special Counsel Hampton Dellinger after the Administration tried to fire him. See our most recent post for background.
The appeals court ruled that it lacked jurisdiction to issue a stay of a temporary restraining order, because such orders are generally not appealable. (Preliminary injunctions are appealable, but TROs are generally not.) The court rejected the government's effort to couch the TRO as an appealable preliminary injunction, rejecting the government's argument that the TRO functioned as a preliminary injunction because of the "extraordinary harm" it worked on the President:
The government and our dissenting colleague lean heavily on the importance of the constitutional dispute in this case, and the prospect of "extraordinary harm" to the Executive's Article II prerogatives if the Special Counsel post is not immediately filled by an individual of the President's choosing. But the interests asserted by the government will be vindicated on an expedited basis in the preliminary-injunction proceedings: In just two weeks, the district court might rule in favor of the government; and if it does not, the government can appeal any contrary ruling. Waiting two weeks to make arguments to the district court and then, potentially, to this court is not so prejudicial to the government's interests that we must rush to issue a ruling in two days, while scrambling the normal appellate process.
Judge Katsas dissented, arguing that "the President is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads."