Further, the Trump administration is seeking "a stay of proceedings in the district court" while the Ninth Circuit considers its petition.
The Trump administration argues the Ninth Circuit should "exercise its supervisory mandamus powers to end this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government."
The U.S. Constitution provides for three separate but equal branches of government, with no exception for energy and environmental policy.
Douglas A. Kysar, the Joseph M. Field '55 Professor of Law at Yale Law School who is not connected with the litigation, but recently co-authored Courting Disaster: Climate Change and the Adjudication of Catastrophe, said:
"Writs of mandamus are reserved for the most extraordinary and compelling situations in which ordinary rules of appellate procedure must be overridden to avoid a manifest injustice. For the Trump Justice Department to even seek a writ of mandamus in the current context is offensive to Judge Aiken, to the entire federal judiciary, and, indeed, to the rule of law itself. The writ should not be granted and we should all question why the Trump administration's lawyers are willing to try such a trick rather than forthrightly defend the case.
"When the Framers divided power within the government, they did it so that the branches could not only check and balance each other, but also poke and prod when necessary. The Juliana litigation is a powerful poke and prod to the entire federal government on the question of climate responsibility. In that sense, Juliana might well be the most important lawsuit on the planet right now and the government knows it. That's why Trump's lawyers are so desperate to avoid an honest fight."
Justice Anthony Kennedy, writing for the Supreme Court's majority in Cheney v. U.S., explained in 2004 that mandamus is a "drastic and extraordinary remedy" reserved for "only exceptional circumstances."