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David Smith's avatar

Thank you for the huge amount of time and effort that you put into this. It's a very thorough and compelling analysis. It seems likely that the Fifth Circuit has adopted the same type of "legislating from the bench" to implement its policy preferences that afflicts our current Supreme Court. I highly recommend Professor Steve Vladeck's recent book "The Shadow Docket," which examines this problem in great (and depressing) detail.

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Steve L's avatar

Bear in mind, all this is for the purpose of evaluating a motion for a preliminary injunction, requiring that the court assess the prospects for success on the merits. Isn't the court supposed to do this assessment giving due consideration to the further defenses the government might have available? The fifth circuit blithely disregards the prospect that the agency would be able to address the purported shortcomings at trial.

In this respect, the court's failing is even worse than you suggest.

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