[U] Tonight, A Specious Amicus Memo Of Law Was Filed Down In Texas. It Fails. Period. Just See The Truly Cogent Amicus Filing, From Two Weeks Ago.

Yet again (and again!), we see stupid legal errors made, by people who opposed the Biden administration's 100 day pause out of pure spite, in losing a valid election, by over eight million votes. [UPDATED: As of Wednesday morning, second, even more ridiculous amici "brief" has been filed. Henceforth we will ignore these non-legal, purely political talking point style briefs.]

Here (without quoting) is that silly amicus memo, which is plainly wrong on the law of an Amicus filing, of tonight -- and a bit, from the amicus that is RIGHT on the applicable law, earlier filed over two weeks ago. I'll have more when RAICES offers its reply to this bit of nonsense:

. . . .“In order to hale the federal government into a court proceeding, a plaintiff must show that there has been a valid waiver of sovereign immunity.” Lewis v. Hunt, 492 F.3d 565, 570 (5th Cir. 2007). “The absence of such a waiver is a jurisdictional defect.” Id. “A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text. . . and will not be implied.” Id. (emphasis added) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). “[A]greement. . . between parties and their counsel is not sufficient to constitute a waiver of sovereign immunity.” Id.

There is no waiver of sovereign immunity for equitable enforcement of a contract with the United States, so this Court cannot entertain Texas’s claims relating to the SAFE agreement. See Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1082 (10th Cir. 2006). As many circuits have held, “the Tucker and Little Tucker Acts ‘impliedly forbid’ federal courts from ordering declaratory or injunctive relief, at least in the form of specific performance, for contract claims against the government.” Id. (collecting cases from the First, Second, Third, Ninth, and D.C. Circuits); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949) (“There are the strongest reasons of public policy for the rule that such relief cannot be had against the sovereign. The Government as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right.”).

Most critically here, the Fifth Circuit has expressly so held [Ed. Note: the Fifth Circuit sits over this court]. See Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1229–30 (5th Cir. 1976). As the Circuit explained: “The gravamen of Alabama Rural’s complaint is a claim for breach of contract. . . . Congress specifically waived sovereign immunity when it established the Court of Claims and vested in that court jurisdiction over actions ex contractu against the United States, but limited that waiver by giving that court jurisdiction only to award damages, deliberately withholding equitable powers from it.” Id. (citation omitted). Thus, the Circuit refused to hold “that the district court had jurisdiction under the [Administrative Procedure Act] to exercise its equitable powers so as in effect to compel the United States to perform the disputed contract.” Id. at 1230. That is precisely what Texas seeks. . . .

There are numerous other reasons that the SAFE agreements are invalid and unenforceable. See generally United States v. Winstar Corp., 518 U.S. 839 (1996) (addressing various doctrines that limit contracts which purport to constraint the future sovereign power of the government). Indeed, approving this agreement would set a deeply problematic precedent. If an outgoing DHS official can sign away the next administration’s policymaking authority for six months, why not for four years? Or eight? If DHS can do so, why not the Environmental Protection Agency, the Department of Energy, and every other federal agency? And if they can contract with Texas, why not with an individual—or the ACLU? Our Constitution directs that presidential elections occur every four years, with the Executive authority transferring shortly thereafter. But in Texas’s view, an outgoing administration need never yield power so long as it finds a willing contractor to lock in its policy preferences. . . .

[Ed. Note: In addition, Texas cannot establish any standing, here.] To have standing, a “plaintiff must establish a ‘personal stake’ in the dispute and that the injury is particularized to him. The injury cannot be one suffered by the citizens at large.” Donelon v. Louisiana Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 566 (5th Cir. 2008) (internal citations omitted). . .

Now you know. Onward. Grinning -- ever grinning. . . as we await word of a safely orbital arrival, in Martian orbit for the Chinese robotic mission.

नमस्ते