A Restraining Order Is Not a Recall

Judge Jennifer L. Rochon’s order stopping the government’s television campaign took effect at 6:45 p.m. on Sunday 11 October. The court emailed it to the parties a minute later. The government’s lawyer in Manhattan forwarded it to agency counsel at 7:58 p.m., and agency counsel, by the government’s own account, did not see that email until Monday morning. In the meantime, according to AdImpact data cited by the plaintiffs, the advertisements ran 570 times.

On Wednesday Rochon extended the order by fourteen days, to 8 November, set a preliminary-injunction hearing for 4 November and allowed the plaintiffs limited expedited discovery. She also directed the government to file, by Thursday 15 October, declarations explaining why the advertisements aired on 12 October “given the contrary representations made by counsel and in paragraph 8 of the Mehringer Declaration.”

What the order reaches

The case, Common Cause v. Department of Homeland Security, No. 26-cv-8882 in the Southern District of New York, concerns five advertisements that began airing on 23 September: “The Country He Loves,” “Celebrating the Enduring Spirit,” “Final Battle,” “To the Great Proud People of Iran” and “Maduro.” Each ends with the line “Paid for by the U.S. Government.” The defendants are the Department of Homeland Security and its secretary, Markwayne Mullin, the Office of Management and Budget and its director, Russell Vought, the Executive Office of the President, and the White House chief of staff, Susie Wiles. The emergency motion was brought by three of the four plaintiffs: Robert Hunter, a candidate in Alabama, Service Employees International Union Local 32BJ and its political action committee.

The order is written against the money rather than the broadcast. Under section 705 of the Administrative Procedure Act it stays the purchase order of about 20 September between Customs and Border Protection and Lepugh, Inc., which does business as LMD Agency, and it stays OMB’s apportionment of $20 million for the campaign. It bars the use of funds appropriated to DHS to “develop, create, disseminate, place, distribute, publish, or air” the advertisements. It requires the defendants to “cancel or cause to be cancelled any slot, placement, reservation, or arrangement” for them, “including those placements for the evening of October 11, 2026.” And it reaches LMD by name, as “a contractor that is in active concert and participation with Defendants,” under Rule 65(d)(2) of the Federal Rules of Civil Procedure. The company that buys the airtime is not a party to the case, which is why that clause is there.

Where the money came from

Rochon’s 40-page opinion, filed on Monday, sets out the sequence from the government’s own declarations. At 6:15 p.m. on 19 September, CBP asked OMB to make an additional $20 million available under a line for “commemorative events.” OMB approved it at 7:50 p.m. the same evening. The next day CBP issued a $20 million purchase order to LMD for a “National Media Campaign.”

The money came from section 90004 of Public Law 119-21, the 2025 reconciliation act, which gave CBP $6.168 billion for border items including “[c]ommemorating efforts and events related to border security.” The House Budget Committee report behind that line, the opinion notes, gave as examples line-of-duty death memorials, agency anniversaries and commendation ceremonies, paid for with venue costs, plaques, flags and honour guards. Holly Mehringer, the official performing the duties of DHS’s chief financial officer, declared that the vendor had bought airtime through Sunday 11 October at a cost of about $19 million, and that the department “has directed the Vendor not to make any additional media buys past October 11.”

The judge found a “clear and substantial likelihood” that the plaintiffs would succeed on two grounds. The first is the Purpose Statute, 31 U.S.C. 1301(a): “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” The second is section 718 of the 2026 appropriations act, the publicity or propaganda rider that has appeared in some form in appropriations acts since 1951. On that point the opinion records that the defendants “do not contest that the at-issue advertisements are purely partisan and unconnected to DHS’s official functions.” The government’s defence was that the case was moot, because the buys would end on Sunday, and that the plaintiffs lacked standing. Rochon rejected both.

Where the order met the schedule

The government’s compliance report, filed on Monday 12 October and signed by Assistant U.S. Attorney Jeffrey Oestericher, says counsel emailed the order to agency counsel at 7:58 p.m. on Sunday and that “Agency counsel did not become aware of Government counsel’s email until this morning.” It continues: “The undersigned apologizes to the Court and the plaintiffs.” DHS gave the order to LMD on Monday morning.

The plaintiffs’ letter of 13 October puts numbers on the gap. By their reading of AdImpact data, 570 advertisements ran after 6:46 p.m. on Sunday; 143 ran after 7:58 p.m., the time the order went to agency counsel; and 32 ran on Monday, the last at 12:17 p.m. An earlier letter said “Final Battle” ran in 193 spots during “60 Minutes” and “Maduro” in 198 spots during “America’s Funniest Home Videos,” both programmes that began at 7 p.m. Eastern. The plaintiffs said they were not seeking contempt sanctions.

At Wednesday’s conference, Courthouse News reported, Oestericher, whom it identified as chief of the civil division in the U.S. Attorney’s Office, told the judge, “It was my bad,” and, “I failed to call the client agency on Sunday to ensure compliance.” He suggested that local broadcasters had not followed instructions about “make goods,” the replacement slots a station offers when it pre-empts an advertisement it has sold. No transcript of the conference was on the docket when this article was published, so those words are as that outlet reported them.

What the dates do

A temporary restraining order runs fourteen days unless extended. This one would have lapsed on 25 October, by this publication’s count; Rochon extended it under Rule 65(b)(2), finding good cause. The schedule now runs to the election and past it. The government answers the plaintiffs’ discovery requests by 19 October. The motion for a preliminary injunction is due on 22 October, the opposition on 27 October and the reply on 29 October. The hearing is at 11:30 a.m. on 4 November, the day after the 3 November midterm elections the opinion names, and the order expires four days later.

The order also has an edge. It reaches money Congress appropriated to DHS. On 5 October, the opinion records, the President announced on Truth Social that he would pay for the advertisements himself and “with money [he] raised for MAGA, Inc.” The advertisements kept airing after that post with the government’s disclaimer on them. An advertisement paid for privately would be outside an order about appropriations. The Democratic National Committee has brought a separate challenge in Washington, DNC v. Trump, before Judge Loren L. AliKhan, who held a hearing on its motion on Thursday.

The signed order took effect at 6:45 p.m. The airtime the campaign had already bought kept running until the order reached the people who had bought it, and for some hours after that.