No sooner had President Donald Trump signed the "One Big Beautiful Bill" (OBBB) into law than the activist, litigious left sprang into action and ran to a reliably left-leaning district court seeking to thwart the law's provision that would (by definition) prevent Planned Parenthood from receiving Medicaid reimbursement for its services. That their endeavor was successful was hardly shocking. That it was successful beyond what they even requested had the jaws of legal analysts agape.
On Monday, just hours after the suit was filed and before the government had even had an opportunity to weigh in, Massachusetts District Court Judge Indira Talwani issued a brief (2-page) temporary restraining order (TRO) enjoining the Trump administration from enforcing the provision of the law in question, requiring them to ensure that Medicaid funding of Planned Parenthood continue "in the customary manner," and requiring a status report from the administration within 96 hours of being served with the court's order.
READ MORE: New: Judge Stops Congress From Defunding Planned Parenthood, Outrage and Confusion Follow
On Friday morning, the administration filed its motion to vacate the TRO, and its memorandum in support thereof is, at least to this recovering lawyer's eyes, a thing of beauty. The memo may be viewed in its entirety below, but I want to walk through it a bit to highlight some damn fine lawyering.
First, the opening paragraph:
Enjoining an Act of Congress signed by the President of the United States is among the most serious and consequential exercises of the judicial power. It must be exercised with caution and restraint, as the separation of powers counsels against one branch of government effectively seizing for itself the powers of the other two branches. Yet here, without even awaiting a response from the Government, the Court exercised that power through an extraordinary, highly unusual temporary restraining order (TRO), preventing the enforcement of duly enacted legislation approved by Congress and signed by the President barely a week ago. The Court should dissolve that order immediately, before the preliminary-injunction hearing scheduled for July 18, 2025. Plaintiffs’ claims are utterly meritless, as the Government will explain in its forthcoming opposition to Plaintiffs’ “emergency” motion. Regardless, a TRO cannot issue without complying with a series of mandatory procedural requirements under Federal Rule of Civil Procedure 65. This TRO ignores those most basic criteria. The Court must therefore dissolve its TRO as soon as possible. See Fed. R. Civ. P. 65(b)(4) (requiring the Court to “hear and decide the motion” to dissolve “as promptly as justice requires”).
Not exactly short or sweet, but most definitely to the point. The very first sentences set the stage: It's a big deal for one branch of the government to attempt to put the other two in check — there had better be good (and legal) justification for doing so. Next, the memorandum lays out the extraordinary shortcomings of the order — not only are the claims underlying it without merit, but the process (if you can even call it that) followed by the court in issuing it failed on multiple fronts.
Then the administration sets forth the law governing such judicial actions (emphasis mine):
A TRO entered without giving the non-movant pre-order notice and an opportunity to respond is known as an ex parte TRO. Granny Goose Foods, Inc. v. Bhd. of Teamsters & AutoTruck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 438-39 (1974); Gambino v. Titan Elec. LLP, 637 F. Supp. 2d 69, 71 (D. Mass. 2009); see also Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 105 (2d Cir. 2009) (explaining that “notice” under Rule 65 requires giving the non-movant a“fair opportunity to oppose the preliminary injunction” (cleaned up)). After a court enters an ex parte TRO, “[o]n 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order.” Fed. R. Civ. P. 65(b)(4); Louis v. Charles, 2025 WL 1057785, at *1 (D. Mass. Mar. 24, 2025) (Talwani, J.). “A court may dissolve an improperly-issued TRO . . . ‘if the TRO was not issued in accordance with applicable procedural law[]’ or for any other procedural defect.” Hill v. Chester White Rec. Ass’n, 2021 WL 5446511, at *4 (N.D. Tex. Nov. 18, 2021), report and recommendation adopted, 2021 WL 5459762 (N.D. Tex. Nov. 21, 2021). Having provided the required notice to Plaintiffs, see ECF No. 24 (Opp. to Pls.’ Mot. to Continue Hr’g) at 3, the Government now moves for dissolution.
I might be reading too much into it, but that paragraph almost strikes me as though the government is attempting to patiently explain how the process works...to a 5-year-old. Note, too, that they cited Judge Talwani back to herself to support their position.
The administration goes on to explain why the TRO is wrong on the merits, but then lists out five specific issues with the order:
- The court failed to require the plaintiffs to set forth "specific facts in an affidavit or verified complaint" showing that they would sustain "immediate and irreparable injury, loss, or damage" before defendants could even weigh in.
- The TRO "does not describe the alleged injury that justifies ex parte emergency relief...In fact, it describes no injury at all."
- The TRO does not contain an explanation as to why it was issued.
- The TRO does not explain why it was issued without notice/giving the government a chance to contest plaintiffs' motion.
- The court failed to require that plaintiffs post a bond.
Our friend and sometimes-contributor Shipwreckedcrew offers a very detailed deconstruction of the improvidently issued order here — worth checking out if you want detailed insight into all of the problems with this TRO.
One more point as to the third item listed above. In support of it, the administration notes:
While such an error would be fatal in any case, it is particularly glaring here, where Plaintiffs seek to invalidate an Act of Congress when the ink has barely dried, and their lead argument involves novel reliance on the Bill of Attainder Clause. As the Government’s forthcoming opposition will make plain, Plaintiffs’ claims are devoid of merit from start to finish. Granting a high-stakes motion based on such empty legal theories cries out for explanation; indeed, everything about this case makes following the rules especially critical. But the Court did not follow them.
Given that she didn't hesitate to enter the slapdash TRO to begin with, I'm not holding my breath to see if Judge Talwani grants the government's motion to vacate it. At some point, however, whether it's courtesy of the 1st Circuit or the Supreme Court, I expect Judge Talwani is going to be on the receiving end of a judicial smackdown — and I am here for it.
In the meantime, kudos to the team at DOJ who drafted this pleading.
Planned Parenthood - Govt Motion to Vacate TRO by Susie Moore on Scribd
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