In a just-filed opposition to a petition for en banc review in the D.C. Circuit USAID funding case (No. 25-5097)--I'll link to it when it's online--DOJ concedes that "the APA could provide a mechanism for the district court to order compliance with a specific statutory command." [1]
Here's the DOJ brief -- see pp. 15f. storage.courtlistener.com/recap/gov.us...
That's a more-than-sufficient basis for the en banc court to grant the petition and vacate the panel opinion, because the plaintiffs *have* made such an APA claim and the panel wrongly held that it's precluded by the Impoundment Control Act. [2]
ICA preclusion is a meritless argument that DOJ itself never briefed and that wasn't even mentioned at oral argument. And the panel holding would have a dramatic effect on many other pending and future APA cases. That's reason enough to grant & vacate. [2]
All the other stuff in the panel opinion and in the briefs, about whether plaintiffs can *also* bring a separation-of-powers claim for failure to abide by an appropriations law when one of the President's stated reasons for the failure to spend was an Article II authority, ... [3]
...is interesting but really beside the point. (FWIW, DOJ doesn't even address the key question of whether Youngstown or Dalton governs an SOP claim when POTUS has invoked both statutory & constitutional grounds; fortunately, though, there's no need for the courts to resolve that question here.) [4]