Can SCOTUS Issue An Administrative Injunction In the TikTok Case To Preserve The Status Quo?

It is common enough for the Court to issue administrative stays on the emergency docket to afford itself more time, and maintain the status quo. What about an administrative injunction that would maintain the status quo?

Yesterday, I wrote about President-Elect Trump's brief in the TikTok case, which urged the Court to "grant a stay to preserve the status quo in a case that presents novel." Trump is not actually asking for a stay. A stay is used to put on hold a lower-court injunction. In this case, the D.C. Circuit declined to enjoin the statute. Rather, Trump is seeking some sort of injunction to provide more time for negotiations. In my post, I speculated what this sort of injunction would even look like. Would it last for a specific number of days, or could the Court issue an injunction indefinitely? Implicit in my suggestions was that the Court would issue such an injunction, without regard to the merits. In other words, this order would not turn on whether the statute violates the First Amendment.

Steve Vladeck writes that the Court could not issue an injunction without opining on the merits:

The first is that it's asking the Court to do something that the Court … has no power to do. Without at least some view as to the constitutionality of the statute, there's no basis for the Court to do anything to prevent the statute's operative provisions from going into effect on January 19. . . .

The Court has no authority to block the statute solely because something that might happen on some un-specific future date could moot the constitutional questions it presents. Its authority depends upon at least an interim determination that the statute is unconstitutional. To argue for a pause without any constitutional determination is not merely to inject politics into a legal dispute; it's to ask for the law to take a backseat to the politics altogether.

It is common enough for the Supreme Court, as well as lower courts, to enter administrative stays on the emergency docket. In the usual course, a district court enters some sort of injunction in a complex case. The appellate court, or the Supreme Court, receives an emergency motion for a stay. Without making any determination on the merits, the appellate court then enters an "administrative stay" for some limited period of time. These stays are issued without regard to the merits. Rather, they are usually justified on the grounds that the Court simply needs more time to grapple with a complex case. The stay has the effect of preserving the status quo, while an opinion is crafted, or at least while a majority is cobbled together.

To be sure, these administrative stays--especially in the Fifth Circuit--have been subject to some criticism from Justice Barrett and others. But the Court does use them. And the Court has extended these administrative stays for no other apparent reason than the Justices needed more time.

This is a slightly unusual case where Congress tries to shut down a business that has been in existence for several years. It is often unclear what exactly is the status quo. But I think most people would agree that the law going into effect on January 19 would disrupt the status quo.

If the Court can issue an administrative stay to preserve the status quo, why not issue an administrative injunction to preserve the status quo? The duration of that administrative injunction would be time-limited to facilitate the writing of a majority opinion, or to allow the political process to work its way through things. I can't think of an example when this has been done before, but I don't know any obvious reason why the Court could not do so.

Comments

[SimonP]

This man simply has no respect for the law. What even is your dog in this fight, Josh? Are you trying to find ways for the Supreme Court to abuse its authority in order to frustrate the intent of the elected branches, just because Trump wants them to?

Whatever can be said about administrative stays, their purpose in our system is to enable the appellate courts to carefully consider petitions for preliminary relief, which furthers the orderly administration of justice. They are not intended to give litigating parties the time to change the facts on the ground, and they certainly aren't intended to give non-litigants the ability to moot an issue by delaying its consideration indefinitely.

If you want to moot an issue, then you litigate it, move for dismissal, and address it that way. What Trump wants to do is to delay the effective date of the law so that he can swoop in, exercise some dubious legal authority he probably doesn't have under the law to try to "cut a deal," and shovel money into his pockets along the way. It's preposterous that any law professor would comment on his Hail Mary move only to try to brainstorm ways to facilitate it. It's arguments like this that erode the rule of law.

[Mark Regan]

The Court has clearly scheduled briefing and oral argument in order to get a decision out by January 19. Under the circumstances, what would be the point of an administrative stay?

[Commenter_XY]

What happens when the complexity of the issue does not allow for a decision and a written opinion in 9 days? SCOTUS doesn't normally handle cases in an expedited fashion like this (Bush v Gore is an exception, and an understandable one). If SCOTUS thinks they need more time to properly consider the case, who is to say they cannot, or should not.

[ObviouslyNotSpam]

Josh?

[steve sturm]

I may be quibbling with wording, and it may all end up in the same place, but is "...Congress tries to shut down a business..." the best way to describe the situation?

To my reading, the law doesn't say TikTok must be shut down, but rather that TikTok may not be owned by a particular foreign entity, and it is that entity which has the choice to either sell TikTok or shut it down.

[Jon Shields]

It is so funny to watch Josh Blackman careen from making hyper-literal legal arguments for absurd outcomes that align with his political preferences, to making arguments that don’t even have a pretense of being grounded in the law (for outcomes that align with his political preferences).

[Scribe]

Funny, no one mentions the 90 day extension written into the statute that is the basis for shutting down TikTok. Yes, it would have to be implemented before January 19 and Biden's keepers won't have him do that. But I think avoiding a knotty 1A case by eliding the deadline through that 90 day extension is going to be an easy thing for the Court to do.
Remember Ex Parte Quirin. There were more than a few regrets about the rushed opinion writing that still came after the executions.

[David Nieporent]

Funny, no one mentions the 90 day extension written into the statute that is the basis for shutting down TikTok.

That statute expressly delegates the discretion for the delay to the president. The courts do not have any authority under the statute to grant a 90-day extension.

[Randal]

Wherein Josh Blackman, an alleged law professor, demonstrates that he doesn't understand the difference between an injunction and a stay.

[apedad]

Dang....that puts me on the same level as Prof. Blackman.

Of course, I'm not a law professor either.

[David Nieporent]

In simplest terms: a stay is a pause (in some fashion) in court proceedings; in this context, after a court issues an order or judgment, the court or a higher court can delay implementation of that order.

An injunction is a court order preventing litigants from doing something (or requiring them to do something).

[Randal]

And which is exactly why an administrative stay makes sense (relating to the administration of the courts) but the administrative injunction that Josh is contemplating would be a lawless monstrosity of nonsense.