The Volokh Conspiracy
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Neutral Principles for the Emergency Docket
The lower courts, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy cannot stand.
In recent terms, several Justices have attempted to sketch standards for granting relief on the shadow docket. In Does v. Mills (2021), Justice Barrett and Kavanaugh focused on cert-worthiness as an important factor. But in Labrador v. Poe (2024), Justices Kavanaugh and Barrett focused on likelihood of success on the merits. These two tests are very much in tension. Department of States v. AIDS Vaccine Advocacy Coalition illustrates this tension.
In this dispute, the Trump Administration attempted to block the payment of certain foreign development assistance funds. The procedural posture of the case is complex. A federal district court issued a Temporary Restraining Order, which was in effect a mandatory injunction: the State Department had to pay out approximately $2 billion. On February 25, the district court ordered the government to pay funds for work that was already completed by February 26 at 11:59 p.m. Shortly before that deadline, Circuit Justice Roberts entered an administrative stay of the February 25 order. Roberts then referred the government's application to the full Court.
The application sat pending for seven days. On March 5, the Court vacated the Chief Justice's administrative stay. In other words, the Court denied the government's request for an administrative stay. The vote was 5-4. Chief Justice Roberts, and Justices Sotomayor, Kagan, Barrett and Jackson, were in the majority. Justice Alito dissented, joined by Justices Thomas, Gorsuch and Kavanaugh.
The Court offered only one sentence of reasoning to explain its actions:
Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.
This order took me some time to sort through.
First, as a general matter, if the Court vacates an administrative stay, the lower court order goes into effect immediately. The District Court order required the payment of these funds by February 26. That order went into effect as soon as the stay was vacated. The Court says that the "the deadline in the challenged order has now passed." That might be true, but it is irrelevant. If a court orders you to do something on Monday, and it is now Wednesday, it is true that the deadline has passed, but it also means that you are now in violation of a court order and can be held in contempt. An order doesn't cease to be in effect when the deadline passes. The order remains in effect unless an appellate court says otherwise. And the Supreme Court ultimately let the order go into effect. Sort of. The Court's one sentence of reasoning makes little sense.
Second, if the February 25 order is now in effect, why does the government not have to make the payments immediately? Because the Court said "the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order . . . ." In other words, the Supreme Court gave the District Court an assignment: the lower court should issue some sort of clarifying order about what funds are due. This order, if I can even call it an order, is perplexing. The Court denied the government's application. How can the Court grant any relief if it denied the government's application? The Supreme Court lacks any sort of free-floating, supervisory power over the lower courts. If it grants an application, under the All Writs Act, the Court can give instructions of how the lower court should proceed. But by denying the application, the Court has no power to act. This order is in keeping with Justice Barrett's opinion in San Francisco v. EPA, where she purported to dissent in part, but in fact dissented outright. The Court is engaging in shenanigans with how it describes its appellate jurisdiction.
Third, given that the Court denied the application, any discussion of the merits would be an advisory opinion. Yet the Court strongly hints that the lower court was wrong on the merits. "Clarifying" the obligations of the government is a nice way of saying the prior ruling was not quite clear enough. If the order against the government was insufficiently clear, the remedy would be to vacate the lower court opinion with instructions to clarify. (Then again, the Supreme Court "clarified" Bruen in Rahimi by partially overruling it, so words really have no meaning on the Roberts Court.) But the Supreme Court asked the District Court to clarify its ruling, without ordering it to do so. The Supreme Court cannot make suggestions. It can only issue orders. Again, these are shenanigans, designed to direct the lower court without actually granting the government's application.
I struggle with this ruling because there is no attempt, whatsoever, at a neutral principle. At this point, Chief Justice Roberts and Justice Barrett are just bailing out a sinking ship, trying to stay afloat long enough to avoid the next iceberg.
Justice Alito's dissent is one for the ages. When the current emergency docket madness is over--and it will come to an end sooner or later--we will look at Justice Alito's opinion as a turning point.
Justice Alito carefully walks through the standards for granting a stay--and those standards are amply satisfied.
First, there are very strong arguments that the Government will prevail on sovereign immunity grounds. Plaintiffs cannot simply sue the United States in federal court to seek payment of a contract. The Court of Federal Claims has specialized jurisdiction for these sorts of claims. Moreover, the District Court's order was palpably over-broad. The majority acknowledged that the lower court's edict should be "clarified." Again, an order that is valid does not need to be "clarified." All of the Justices, therefore, agreed that the District Court issued a ruling that likely would not be upheld on the merits. The "likelihood of success" prong is satisfied. So we do get a merits peek, even if the majority is playing peek-a-boo.
Second, the government has squarely shown that is likely to suffer irreparable harm. If the plaintiffs ultimately prevail, the government can always pay out the amounts owed, perhaps with interest. But once the government pays out the $2 billion, recovering that full amount will be nearly impossible. The equities here scream for a temporary stay.
Third, in a footnote, Justice Alito discussed Justice Barrett's Does v. Mills concurrence:
To the extent that likelihood of certiorari is a relevant factor, John Does 1–3 v. Mills, 595 U. S ___, ___ (2021) (BARRETT, J., concurring in the denial of application for injunctive relief) (slip op., at 1), it is met here.
Do you know why this standard is met? Because four justices would grant that stay. It takes four votes to grant cert. By definition, this case is cert-worthy. In Does v. Mills, there were three votes to grant the injunction. Justice Barrett could say the case was not cert-worthy because she did not vote to grant cert. But it was not hard to predict a 5-4 case on the emergency docket. Barrett's standard was always circular. In the USAID Case, where there are four votes to review, the problems with Barrett's standard becomes apparent.
From my perspective, the Court denied the stay only because Justice Barrett was willing to go along with the Chief Justice. Justice Barrett has signaled her discomfort with administrative stays before. But, she has not articulated any reason why relief was not appropriate here. Thus, there is an asymmetry. District Courts are issuing administrative stays of executive actions, appellate courts refuse to grant administrative stays of lower court rulings, and the Supreme Court simply sits on the sidelines.
The lower court, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy, as I call it, cannot stand. More on that topic in another post.
