Document Type

Court Brief

Publication Date

8-19-2025

Abstract

In Vera Institute of Justice v. Department of Justice, as in a raft of other cases involving constitutional, statutory, and regulatory challenges to the rapid mass cancellation of federal grants or grant programs, the government has deployed jurisdictional arguments in an effort to restrict the judiciary’s ability to review the legality of executive actions. Specifically, the government has attempted to confine jurisdiction over the plaintiffs’ claims to the Federal Court of Claims, which is powerless to remedy the alleged violations. The arguments by which the government would deny judicial review of the plaintiffs’ claims conflate two distinct considerations: first, the interests that give the plaintiffs’ standing to bring their claims; and, second, the nature of those claims.

Vera Institute is currently on appeal to the US Court of Appeals for the District of Columbia. This amicus brief of contract law scholars demonstrates that the plaintiffs’ statutory and constitutional claims are not disguised actions for breach. The test for whether a claim is contractual looks to its source and to the appropriate remedy. The facts that the plaintiffs statutory and constitutional claims require a showing of fault, that they do not require interpretation of the grant agreements, and that persons who are not in privity might have standing to bring them all show that the claims’ source is not in the cancelled grant agreements. And whereas contractual remedies are substitutionary, the appropriate remedy for the plaintiffs’ claims will be an order requiring that the Department of Justice comply with the Administrative Procedure Act and the Constitution. Holmes famously argued that “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,—and nothing else.” The executive enjoys no such option when it comes to following the law.

Download

Share

COinS