Of Dobbs, Impoundment, and the Administrative Procedure Act

Today’s ultra-aggressive “funding freeze” memo appears to be right out of the Dobbs playbook – take an action that is not allowed under current law (the Mississippi law at issue in that case, which was plainly unconstitutional under Roe/Casey) and present it to the modern-day Supreme Court conservative supermajority.

Understandably, public comment on the memo has focused on the Nixon-era Impoundment Act. But at the courthouse, the first filed lawsuit focused on the old warhorse of the Administrative Procedure Act – the law that repeatedly stymied aggressive administrative-agency action in both the Biden and the first Trump administration.

That’s wise as a matter of substantive law – there are fruitful arguments to be made under the APA – and as a matter of avoiding the Dobbs playbook of presenting a flashy constitutional issue. “Another” APA case is simply a less compelling topic for the Supreme Court to address.