NIH v. American Public Health Association—Can a President Cancel $800M in Grants?

Mark Chenowith: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, just an average citizen – you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed.

John Vecchioone: Welcome to Unwritten Law with John Vecchione and Mark Chenowith. And we have an interesting case with many opinions, and it came out five-four one way, five-four the other way –

Mark Chenowith: And it’s the middle of August.

John Vecchioone: – and it’s the middle of August. National Institutes of Health versus American Public Health Association. This is on the emergency docket, or as some would call it, the shadow docket. And who knows what evil lurks in the heart of the Supreme Court? The shadow docket does. And so, with those thrilling words from –

Mark Chenowith: That was for our younger audience.

John Vecchioone: Yeah. With those thrilling words from yesteryear, we go through – Mark, what’s happening here, and what’s this about?

Mark Chenowith: Well, what it’s ultimately about is whether or not $800 million worth of research grants that President Trump wanted to cancel at the NIH can get cancelled. And the short answer to that question is yes. The court was fine with cancelling those. But it was interesting that Chief Justice Roberts joined the liberals in dissent on that. That was a five-to-four vote. And then there was also guidance that was put out with regard to future grants. And there we had a five-four decision going the other way, saying, “No, no, no, no. That’s not kosher,” and Justice Barrett joined Chief Justice Roberts and the three Democrat appointees on the Supreme Court to say, “No, that’s not going forward.”

So, we have something of a split decision here. But what’s really interesting, and what’s gotten the most attention from this, I think, is that Justice Gorsuch wrote a partial concurrence, partial dissent, I guess you would say –

John Vecchioone: And they all had partial concurrence, partial dissent because no one was fully on board with anything.

Mark Chenowith: Yeah. There’s a big mess going on here, and Justice Jackson has an opinion in here as well. But Gorsuch and Kavanaugh joined together to essentially say that the lower courts aren’t heeding the Supreme Court’s rulings. And Gorsuch, in specific said, “This is now the third time in a matter of weeks this court has had to intercede in a case ‘squarely controlled’ by one of its precedents.” And then he said, “When this court issues a decision, it constitutes a precedent that commands respect in lower courts.” So, I think that they’re getting tired of seeing the decisions that they make – even these decisions on the emergency docket – not followed by the lower courts.

John Vecchioone: And in Wilcox, what they said was that for injunctions, when they give an opinion, it should inform the use –

Mark Chenowith: Question, right?

John Vecchioone: – it should inform the use of their equity powers.

Mark Chenowith: Right.

John Vecchioone: Right? So, yes, they are getting annoyed with this. And on the other hand, Jackson says, “Oh, the administration always wins. It’s Calvinball.”

Mark Chenowith: Yeah.

John Vecchioone: But this is an interesting question, because what’s really going on here is that I don’t think there’s any question that if you cancelled a single contract, it would be in the Federal Court of Claims, right? Here, $800 billion were cancelled. They were all cancelled at once, saying, “We’re not gonna do this.” So, there was a constitutional claim that the president is now usurping congressional power to spend, okay? So, there was an APA claim. But I think the Republican appointees have the better of this because they do have a remedy. And Kavanaugh points this out. The folks who brought this action do not say they’ll give the money back, right?

So, there’s no statement here that they’ll give the money back. That isn’t really an APA thing. That’s a Federal Court of Claims thing. And I also think the Federal –

Mark Chenowith: You’re saying they have the right to the grant, essentially, right?

John Vecchioone: Yes, and then they’re not gonna give it back, regardless of what happens later on, which is just not the way you get good outcomes from courts. And so, yeah, I think that it probably is they all have a remedy in the Federal Court of Claims if they’ve been cut off improperly. They just don’t like that ‘cause it just doesn’t make the statement the APA would. But I think the Federal Court of Claims can –

Mark Chenowith: I don’t think it’s just the statement. I think that they want immediate relief because they view some of these research projects as being so important that if the funding stops, then all the research is lost that’s been done up to this point, right?

John Vecchioone: Correct. There’s no question that’s true. But what I’m getting at is I think Federal Court of Claims could do APA claims as well. I think they can. I’m unsure, but it does strike me that the dissent and everyone else argues over whether they should be making this jurisdictional question answer in the emergency docket. Both sides say, “Oh, well, we could do this, but Kavanaugh says we have to answer this question, ‘cause we’re either gonna vacate or not vacate, but either way we’re making a decision on who has jurisdiction.” And Jackson says, “Well, we shouldn’t have done this, and we shoulda just let it play out.”

And so, the shot across the bow from Gorsuch and Kavanaugh, I believe, shoulda come from Chief Justice Roberts, right? If you want this to stick, I think Roberts should’ve joined that part of the opinion because these lower courts stopping these mass – I mean, they are massive actions, and they’re gonna come to a head at some point. And whether Congress’s spending power trumps the executive power, like when can you cut off things. Congress has said, “Spend it.” Or have they said, “Spend it strong enough.” There’s gonna be all kinds of arguments like that.

Mark Chenowith: Right.

John Vecchioone: And they’re gonna come up eventually. But do you decide ‘em now or do you follow the normal processes, which I think is Federal Court of Claims. I think that’s what you gotta do.

Mark Chenowith: Right, because it’s not typically the case when Congress says spend it that you absolutely, positively under all circumstances have to spend it. If the executive were to find out, for example, that there was fraud going on or that there was some other issue or that – I don’t know, the boat sinks that you’re supposed to spend the money on. Well, you don’t have to throw good money after bad in that situation. The executive is allowed to say, “Wait, we’re gonna hold up on that.” But where’s that –

John Vecchioone: But then you go to recision, right?

Mark Chenowith: – but where’s that line, right? Where’s that line?

John Vecchioone: Which they did do. They did do recision. They did nine billion of these aid things. They said they pulled ‘em.

Mark Chenowith: Right, but I don’t know that this $800 million was part of that.

John Vecchioone: It did not. No, it was not.

Mark Chenowith: Okay.

John Vecchioone: So, I think that the answer is it should go through the normal channels. But it is interesting that they’ve sorta switched positions. Under the Biden administration, Alito gave a speech – he didn’t put it in here – but he said that we can’t allow big decisions be made on the emergency docket. And now he’s joining the big decisions have to be made on the emergency docket. So, I do think there is a little bit of this – that’s why you hear a lot about this, “Well, our opinions aren’t full. They’re not fully here.” Alito said that in a speech a while ago.

Mark Chenowith: But we talked about this six months ago, John, when these decisions started coming from the District Courts rapidly. And we said part of the problem here is these District Court stays, right? That’s the reason these things wind up on the emergency docket. If the courts would say instead, “Yes, you have jurisdiction, but no, we’re not gonna give you a stay.” Or “You don’t have jurisdiction. You have to go to the Federal Court of Claims for this.” Then you would have a slower process. People would still have their full legal recourse, but you’d have a slower process. But the people who are suing aren’t willing to do that.

They want their injunctions. They want to stop it. They want action now. And the District Judges have been willing to go along with that. And that’s all precipitating the whole rushed process here.

John Vecchioone: Right. At least in the CIT, they move quick. I mean, maybe the Federal Court of Claims woulda moved quick. I don’t know. I do think that if I had a grant, I would want an individualized case that Congress did say to spend this money, right? I would want all the facts. Congress said to spend this particular grant. And then I’d have the language and the statute, then I’d have the floor statements. I know we don’t like legislative history, but somebody might. I’d put it in there. This is very vital. And then the president signs it and doesn’t put a signing statement that this is bad, right? So, not even that. So, I think the better way to do this is an individualized case getting all this there. Then you bring the bigger case for everything.

Mark Chenowith: You know, I didn’t follow the standing logic here, but it is the American Public Health Association, so you have a trade association of sorts as standing to contest all $800 million in research grants. That seems strange to me. It can’t be –

John Vecchioone: It says et al.

Mark Chenowith: Well, it does say et al, so maybe there are other folks in there that maybe there’s a whole bunch of people that are joining together in this one case. Is that your thought?

John Vecchioone: Yeah.

Mark Chenowith: Well, that could certainly be the case. But Justice Gorsuch did have a footnote where he didn’t think that there was standing for the other half of this, right? We said that there were five-four decisions both ways, and he said that – this is footnote, too – the only injury that gave respondents standing to obtain relief was the termination of preexisting grants. So, he said they’re standing on this question of did the grants get terminated, but he didn’t think there was standing to reach the guidance question. I think partly ‘cause the District Court didn’t reach that question, and so how does the Supreme Court have jurisdiction over something that wasn’t decided below?

These are the kinds of things that happen on this emergency –

John Vecchioone: When you’re moving fast.

Mark Chenowith: – moving fast on the emergency docket. Yeah.

John Vecchioone: So, I think that’s right. And the real question now is, are they gonna follow it? I think we have both joked about there was a case against all the judges in Maryland, right? And so, all the –

Mark Chenowith: By the Department of Justice.

John Vecchioone: – yeah, the Department of Justice decided that all the rulings by all the District Court Judges in Maryland were political and bad. And a lot of ‘em were, I mean –

Mark Chenowith: Even if that’s true, though –

John Vecchioone: – even if it’s true, though, you can’t just sue all the judges.

Mark Chenowith: There’s judicial immunity, among other reasons, but it’s just not the right way to do it.

John Vecchioone: And another judge – I forget where he’s from, but he can’t be from Maryland – he said, “Look, you can’t –

Mark Chenowith: Western district of Virginia, I think.

John Vecchioone: Yeah, exactly. Or maybe even West Virginia. Anyway, he said, “You can’t do this. Look, you’ve done it in all these cases. Appeal. Do emergency appeals. You have a lot of different things you can do rather than sue the judiciary and ask for injunctions against them.” So, I do think, who in the Justice Department signed off on this?

Mark Chenowith: Well, I don’t know the answer to that, but it might not have been somebody at the Justice Department. It mighta been somebody at the White House. But I think this is another example, John, where if the president says, “I want X,” and sometimes people maybe are too quick to jump and do it rather than say, “Well, we can get to yes on what you wanna do, Mr. President, but this isn’t the way to do it. There’s an accepted way to do this. And we’ve got 200 years of precedent saying suing the judges by the Department of Justice isn’t gonna get you what you think it’s gonna get you.”

So, unless the calculated decision at the White House was, “Yes, we understand that we’re not gonna get a legal remedy here and we’re doing this just for the cameras, just for the publicity value of it,” if that was the decision, fine. If that wasn’t the decision –

John Vecchioone: It’s not fine for lawyers.

Mark Chenowith: Well, I was gonna way. If that wasn’t the decision, then – well, first of all, I don’t think the lawyers would like to be pawns in that sorta situation – the folks at the Department of Justice. But even if that’s not the situation, it’s just bad legal advice. If the president was under the impression that this could work, then that’s just terrible legal advice, ‘cause it was never gonna work.

John Vecchioone: Plus, on the emergency docket, now there’s been more since I last looked at this, but of 21 emergency docket petitions by John Sauer, by the Solicitor General, they’ve won 19.

Mark Chenowith: Nineteen out of 21. That’s a pretty good record. Certainly, better than Obama, better than Biden.

John Vecchioone: Exactly. So, both percentage-wise and in numbers, it’s pretty good. I think they have a fair comment that the District Court judges are out of line. I don’t think they have a fair comment that they’re not being treated fairly by the judiciary overall.

Mark Chenowith: Right. Ultimately.

John Vecchioone: Ultimately.

Mark Chenowith: Yeah. I think that’s right. And I think that part of what maybe Gorsuch and Kavanaugh were saying to the lower courts is “Get in line.” That doesn’t mean that they can never deviate, or if the court hasn’t ruled on something, that they need to sort of bend over backwards to side for the administration. I don’t think the Supreme Court thinks that at all. And as you point out, there’s at least a couple times where they’ve decided, “No, you lose.” And we’ve had some cases where the Supreme Court has decided something the Trump administration did the first time around – no good.

So, we know they’re willing to do that, but I think that the lower courts have been a little too fervid in their willingness to strike things down that were pretty close to something the Supreme Court had already upheld.

John Vecchioone: And especially when they’re invited to by these mass things. I mean, I really think the cases where they bring a rifle shot first, and then the judge does something just for that party or something like that. You have a much better chance of winning. And this goes for the Trump administration as well. Suing all the Maryland judges when you’re in the Fourth Circuit, it’s not a friendly place, and you really should have a good theory and good facts so that what you wanna do is get a good ruling from the Fourth Circuit, and then you can say, “Oh, come on. The Fourth Circuit has ruled for us. This is so outlandish.” Right?

So, you always wanna have good facts when you’re in a hostile area. And I think bringing bad facts in a hostile court is the worst way to get things done.

Mark Chenowith: It is the worst way to get things done. And it shows a certain impatience that I think isn’t necessary. Now, some of the things the president wants to do, maybe there’s some impatience that needs to take place. But I don’t think $800 million research grants at NIH – I don’t know that there’s – and this one did make it up to the Supreme Court, so this isn’t the one they were suing over in Maryland. And I don’t remember which all cases they were, but I think some of them are the –

John Vecchioone: It’s Abrego.

Mark Chenowith: It’s the appointments cases, a lot of ‘em, right?

John Vecchioone: Some appointments, but also immigration.

Mark Chenowith: Immigration, okay.

John Vecchioone: Immigration are the big ones.

Mark Chenowith: Okay. Well, you know, if he stays in the country a little longer than you want him to, that just doesn’t strike me as the kinda thing that you need to work up too fast.

John Vecchioone: You can go up the line, and I think that he’s got – as I said – he gets the right outcome for him – for the administration – a lot. So, this is the sort of thing that just sorta pokes the justices or pokes the appellate courts, and they have a bad taste in their mouth when they didn’t need it.

Mark Chenowith: That’s exactly right. And so, it’s not just a matter of maybe not winning the case at hand, i.e., suing all the judges, but you’re probably – at least at the margin – you’re reducing your likelihood of success in the future in those same courts, and maybe the Supreme Court, too.

John Vecchioone: There’s gonna be close cases where you need the courts to give you the benefit of the doubt.

Mark Chenowith: Like maybe if you fire a thorough board of reserve governor?

John Vecchioone: Exactly.

Mark Chenowith: Is that one you had in mind, John?

John Vecchioone: It is. Although there, all I have to say is, she better not have faked the mortgage thing, because like I said, you want good facts. If you’re gonna try and preserve the independence of the Federal Reserve, you don’t want there to be a real for cause thing, right?

Mark Chenowith: Right.

John Vecchioone: So, anyway. Bad facts. Don’t go with bad facts.

,: 2025

John Vecchioone: No question.

Mark Chenowith: You’ve been listening to Unwritten Law. As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

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Duration: 17 minutes