If you’re anything like me, you probably wasted your childhood making priceless family memories instead of contemplating the relative judicial utility of Federal Rule of Civil Procedure 65(b). Consequently, you’ve probably experienced a lot of misplaced hope in the past few weeks, reading headlines like, “Supreme Court rejects Trump’s request to keep billions in foreign aid frozen,”[1] and “Federal judge blocks Trump's plan to target ‘alien enemies’ for deportation.”[2] But it is far too early to celebrate.

Over the past two months, the Trump Administration has faced setbacks in the first legal battles of the Presidency. On February 12, the United States District Court for the District of Columbia halted Trump’s plan to terminate Special Counsel Hampton Dellinger.[3] The same court paused efforts by the Department of State to stop all foreign aid for a 90-day “reevalut[ion] and realign[ment].”[4] On the other side of the country, the United States District Court for the Northern District of California enjoined the Office of Personnel Management from firing “probationary employees” from several federal agencies.[5] And most recently, the D.C. District Court froze Trump’s attempt to expedite removal of  “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua].”[6]

While it may not be immediately obvious from the headlines, these cases are all connected in an important way: they were originally the product of temporary restraining orders, not preliminary injunctions. And while you (shamefully) may not have appreciated the difference at age 6, temporary restraining orders have become the unsung heroes in the Trump legal showdown.

Temporary restraining orders (TROs) are “designed to preserve the status quo” until an application for injunctive relief can be decided on the merits.[7] Functionally, they are no different than a preliminary injunction. In fact, both TROs and preliminary injunctions are authorized under Federal Rule of Civil Procedure 65,[8] but they are by no means the same thing.

Importantly, a TRO is not a final judgement.[9] A TRO temporarily[10] “preserve[s] existing conditions” until the court can hear the application for a full preliminary injunction.[11] They are emergency measures, appropriate only where “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.”[12] In effect, they buy time for the parties to brief the issue and for the court to make an informed decision on the merits.[13]

Because they are not final judgments, TROs are generally not appealable.[14] Unlike preliminary injunctions, “[t]here is no statutory provision for the appeal of a temporary restraining order.”[15] Accordingly, appellate courts do not possess jurisdiction to hear challenges against TROs.[16] That being said, appellate courts can review a TRO where it is “in purpose and effect a mandatory injunction appealable under 28 U.S.C. § 1292(a)(1).”[17] In making this determination, appellate courts look at factors like “whether the order had irreparable consequences that warrant immediate relief,”[18] “whether the order will remain in force longer than [is permissible],”[19] “whether the district court entered the order after a contested hearing, akin to a hearing held on a motion for preliminary injunction,”[20] and “whether the order foreclosed future action for injunctive relief.”[21] The challenging party has the burden of showing that a TRO is, in effect, an injunction.[22]

The line separating TROs and preliminary injunctions is undoubtedly blurry, but it has become an important distinction as courts try to keep up with the breakneck pace Trump has set in his attempts to reshape the federal government. The issue became important in Dellinger v. Bessent, where a TRO was implemented to stop the Trump Administration from terminating Hampton Dellinger, former Special Counsel of the Office of Special Counsel.[23] The question presented was whether Trump could unilaterally remove Dellinger without showing that he had engaged in “inefficiency, neglect of duty, or malfeasance in office” as required by 5 U.S.C. § 1121(b). [24]

The government filed an emergency motion to stay the order, arguing that that the TRO functioned as a preliminary injunction.[25] First, they contended that the order “work[ed] an extraordinary harm to the President’s authority” by reinstating an official that the Executive had already removed.”[26] Second, they argued that the district court “prolonged the harm” by implementing a fourteen-day TRO on top of an earlier administrative stay.[27]

The United States Court of Appeals for the District of Columbia Circuit summarily shot down the appeal, finding that the “extraordinary harm” argument was “analytically flawed.”[28] First, the court reasoned, a TRO is generally not appealable and lasts for only fourteen days.[29] In less than two weeks, the government’s claim would be tested on substantive grounds, and Defendants could then appeal an unfavorable result.[30] Second, the government’s argument presupposed that they would win on the merits; that is, an “extraordinary harm” only existed if 5 U.S.C. § 1121(b) was truly unconstitutional, the exact determination to be made at the injunctive relief hearing.[31] In sum, the government had failed to meet the “high threshold” necessary to treat a TRO like a preliminary injunction, which precluded jurisdiction.[32]

In dissent, Judge Katsas (who served as Deputy White House Counsel during Trump’s first term)[33] emphasized the “special status of the President.”[34] “While the President is not absolutely immune from judicial process,” Katsas argued, “it is ‘obvious’ that a court may not ‘proceed against the president as against an ordinary individual.’”[35] He expressed concerns over “judicial encroachment on presidential authority,” ultimately concluding that ”[t]he extraordinary character of the order at issue here—which directs the President to recognize and work with an agency head whom he has already removed—warrants immediate appellate review.”[36]

The government appealed the Circuit’s decision, and the Supreme Court held the application in abeyance until the TRO expired on February 26.[37] Justices Sotomayor and Jackson would have denied the application altogether.[38] Justices Gorsuch and Alito, on the other hand, argued that the TRO had “ripened into an appealable order.”[39] The dissenters argued that “[w]hether labeled a TRO or a preliminary injunction,” the order provided an equitable remedy by “effectively command[ing] the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office.”[40] Because courts of equity traditionally had “no jurisdiction over the appointment and removal of public officers,”  Gorsuch reasoned that the District Court didn’t have the authority to implement the TRO in the first place.[41] Two weeks later, the Court ruled the case moot after Dellinger voluntarily stepped down.[42] 

The distinction between TROs and injunctive relief was also central to the decision in Department of State v. AIDs Vaccine Advocacy Coalition. The controversy began on January 20, when Trump promulgated an executive order calling for a “90-day pause in United States foreign development assistance for assessment of programmatic efficiencies and consistency with United States foreign policy.”[43] Pursuant to the order, Secretary of State Marco Rubio published a memo ordering the Department of State to implement the funding freeze.[44] Nonprofits and interest groups slated to receive foreign aid challenged the pause, and the United States District Court for the District of Columbia granted the Plaintiffs’ motion for a TRO.[45] The order “did not grant Plaintiffs the full scope of emergency relief they sought, [but] it enjoined Defendants from continuing a blanket freeze of the congressionally appropriated funds.”[46]

Eventually, after denying several motions to hold Defendants in contempt for disregarding the TRO, the District Court ordered the government to unfreeze all funds “for work completed prior to February 13.”[47] All told, this would have required the government to release about $2 billion to the Plaintiffs within 36 hours.[48] The government filed a motion to stay the order, which the District Court denied.[49] The government appealed.[50]

With just four hours before the deadline, the United States Court of Appeals for the District of Columbia Circuit found that there was no jurisdiction to challenge a TRO.[51] “TROs are generally unappealable,” the court said, “because review ‘before the district court has finished its work and issued a ruling on the preliminary injunction’ would ‘disrupt, if not render obsolete, the proceedings in the district court.’”[52]

Shortly before the 11:59 p.m. deadline, Chief Justice Roberts of the Supreme Court entered an administrative stay on the order.[53] The government’s application for further stay was referred to the full Court, which ultimately concluded that the government would have to comply with the order.[54] The vote was 5-4, drawing a strong dissent by Justice Alito joined by Justices Thomas, Gorsuch, and Kavanaugh.[55]

In Alito’s view, “it [was] clear that the District Court’s enforcement order should [have been] construed as an appealable preliminary injunction, not a mere TRO.”[56] He argued that the order was “in no sense ‘temporary, [n]or did [it] merely ‘restrain’ the Government’s challenged action in order to ‘preserve the status quo.’”[57] Instead, it “‘act[s] as a mandatory injunction requiring affirmative action’ by the Government.”[58] “For these reasons,” he continued, “the Court of Appeals had jurisdiction to consider the Government’s appeal, and we have jurisdiction to review and summarily vacate that court’s erroneous judgment.”[59]

The dissent ends with a discussion arguing that a stay was appropriate. First, Alito argues, the government was “likely to prevail on the merits” because the District Court did not have jurisdiction to enter the enforcement order in the first place.[60] Second, the government was “likely to suffer irreparable harm” because it would be difficult, if not impossible, to claw back the funds if the Defendants ultimately prevailed.[61] He concludes, “[a] federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them.”[62]

There seems to be a through-line between the Katas Dellinger dissent, the Gorsuch Dellinger dissent, and now the Alito AIDs Vaccine dissent: at least as it relates to Trump, conservative judges are going to find jurisdiction. And that’s a problem.

From a jurisprudential perspective, it’s simply incorrect. TROs are not preliminary injunctions because TROs, by necessity, are unappealable. They give districts courts the time they need to breathe. As Justice Holmes explained, “until the district court can determine how to proceed, ‘it ha[s] authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition,’ as ‘the law contemplates the possibility of a decision either way, and therefore must provide for it.’”[63]

They also protect the integrity of district courts by preventing appellate courts from interfering with a pending decision. The D.C. Circuits’ words in AIDs Vaccine are worth repeating here: “TROs are generally unappealable because review ‘before the district court has finished its work and issued a ruling on the preliminary injunction’ would ‘disrupt, if not render obsolete, the proceedings in the district court.’”[64]

But more than that, it’s just not legal. Bear in mind, TROs are not creations of case law. They are specifically ordained by Federal Rule of Civil Procedure (FRCP) 65(b).[65] Preliminary injunctions, by contrast, are outlined in FRCP 65(a).[66] The distinction becomes important where 28 U.S.C. § 1292(a)(1) specifically grants appellate court’s jurisdiction over challenges to injunctions.[67] But “[t]here is no statutory provision for the appeal of a temporary restraining order.”[68] Because courts may only hear cases insofar as they are statutorily permitted,[69] TROs, by law and by necessity, are unappealable.

AIDs Vaccine is likely not the last word on TROs that we will hear from the Supreme Court this term. Recently, in J.G.G. v. Trump, the United States District Court for the District of Columbia implemented a TRO to stop the Trump Administration from invoking the Alien Enemies Wartime Act of 1798 to initiate expedited removal of “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua].” [70] Still, at least 250 such persons were deported.[71] It is not yet clear if the expulsions took place after the order, which would be a flagrant violation.[72] Either way, motion has been filed with the United States Court of Appeals for the District of Columbia Circuit, challenging the TRO as a preliminary injunction.[73] If Dellinger and Aids Vaccine are any indicator, the D.C. Circuit will shoot it down, and on to the Supreme Court it will go.

One vote could tip the scale here. AIDs Vaccine was decided 5-4, with Justices Roberts and Barrett breaking rank from Justices Alito, Thomas, Gorsuch, and Kavanaugh. Dellinger was likely a similar composition, although neither Thomas nor Kavanaugh were listed as having joined the Gorsuch dissent. Outside pressure, not least from the President himself, will make it difficult for Roberts and Barrett to hold firm in future TRO cases. But the need for judicial independence is never stronger than when the balance of power is so tenuous and the stakes so high. Justice follows the law, not marching orders. 

TROs are unappealable by law, by design, and by necessity. They are the first line of defense against chaos, and they guard the integrity of the justice system. It is imperative that district courts have the time, the space, and the discretion they need to protect Americans from an increasingly turbulent political landscape. I ask that Justices Roberts and Barrett stand tall in their commitment to the Constitution.

Your move, your honor.