The Volokh Conspiracy
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Supreme Court Grants Stay Without Granting Stay
The Court denied the SG's application in Margolin v. NAJI but sent a clear signal to the lower court of what not to do.
Margolin v. National Association of Immigration Judges was not a typical emergency docket application. This was not a case where a district court judge entered a universal vacatur or ordered the executive branch to do something. Rather, the posture was a bit more mundane.
Here, the Fourth Circuit remanded a case, and instructed the district court to make "a factual record" about the Civil Service Reform Act. The executive branch objected to intrusive discovery.
To mitigate those destabilizing effects, the Solicitor General commits to filing a petition for a writ of certiorari seeking summary reversal in the coming weeks, and well in advance of the February 18, 2026 deadline. But to protect this Court's jurisdiction from being overtaken by events in district court, the Court should stay the court of appeals' mandate pending the filing and disposition of that petition and grant an administrative stay before the mandate issues. Only this Court can halt the ongoing and rapidly spreading uncertainty for countless cases.
It is not common for the Solicitor General to ask the Court to stay the mandate. And the Court would not grant that relief.
About eight days after the briefing concluded, the Court entered a short order:
The application for stay presented to The Chief Justice and by him referred to the Court is denied. At this stage, the Government has not demonstrated that it will suffer irreparable harm without a stay. This denial is without prejudice to a reapplication if the District Court commences discovery proceedings before the disposition of the Government's forthcoming petition for a writ of certiorari. Cf. Cheney v. United States Dist. Court for D.C., 542 U. S. 367, 385 (2004). The order heretofore entered by The Chief Justice is vacated.
This ruling was touted as a defeat for the Administration. But was it a loss? The Court offered a very specific admonition:
This denial is without prejudice to a reapplication if the District Court commences discovery proceedings before the disposition of the Government's forthcoming petition for a writ of certiorari.
If I am the District Court judge, I read this as saying "any discovery request will be stayed." So the Court basically granted the stay without granting the stay.
