Last night, Acting Solicitor General Noel Francisco filed an emergency motion for an administrative stay with the Ninth Circuit. A few hours later, a two-judge panel–CANBY and FRIEDLAND–denied the administrative stay, and requested briefing. Washington’s brief is due today at midnight, and the SG’s reply is due on Monday at 3:00 PM (PST). As a result, the soonest we could realistically expect a judgment would be late Monday night, or early Tuesday morning. More likely than not, it may take a day or so before the panel puts together an opinion. For a host of reasons, I don’t expect the panel to grant the stay. Beyond the normal liberal valence of the 9th Circuit, and this panel in particular, it is too easy for the court to dump the case. As evidenced by a #AppellateTwitter discussion last night between Rick Hasen and Doug Laycock, the standard for appealing a TRO is somewhat unclear, and there is an argument (which Washington will ably advance) that there is no jurisdiction. I don’t know the answer to this question, but the safest bet for the court is to summarily deny the order due to lack of jurisdiction, without touching the difficult merits question which Judge Robart simply glossed over in his orer.
At that point, the Acting SG (ASG) is faced with a few possible choices. The ASG can seek rehearing en banc for a stay. That is unlikely to go anywhere, especially if the panel found that it lacked jurisdiction. Thus, I see three possible paths to get this case before the Court.
First, the ASG can file an emergency application for a stay with Circuit Justice Kennedy. The Supreme Court won’t care much about the nuances of the 9th Circuit’s jurisprudence for reviewing appeals of TROs. If there are five votes to stay the injunction, it will be stayed. But herein lies the problem. We still have eight justices, and will have 8 justices until (at the earliest) the second week in April. I don’t know if there will be five votes to stay the injunction. Would the Chief Justice, as well as Justices Kennedy, Thomas, and Alito, support a stay? Could they cajole Justice Breyer to provide another, and far more momentous “courtesy” fifth vote?
The solution to this goes back to lengthy discussions about restoring the status quo with respect to the same-sex marriage litigation (which Howard Wasserman and I discussed in this article), and during the U.S. v. Texas litigation (see here and here). Before Trump’s order, the status quo was that certain aliens, with valid visas, were permitted to enter the United States. After Trump’s order, the status quo was disrupted, and those same aliens were not permitted to enter. After orders from Judges in Boston, Seattle, and elsewhere, the ex ante status quo from before Trump’s order was restored. Now, if SCOTUS were to issue a stay, the ex ante status quo from after Trump’s order, but before the district court’s orders, would be restored. To put the point succinctly, the Court could disrupt either the former or latter status quo. Which would it prefer to do?
Second, the ASG can simultaneously file an emergency application for a stay, and a petition for certiorari before judgment. (The Obama administration took this step in the DOMA litigation, filing a petition for certiorari before the 2nd Circuit’s judgment in Windsor). There is an obvious benefit here: while an application for a stay requires five votes, a petition for certiorari requires only four. Even if Justice Breyer cannot be cajoled to provide a courtesy fifth vote, the four conservatives can grant certiorari. This move also has an added benefit. Depending how the briefing schedule is set, arguments could conceivably be held after Justice Gorsuch joins the bench.
There is an especially relevant precedent here: Youngstown. President Truman promulgated Executive Order No. 10340 on April 8, 1952. Shortly thereafter, the steel mill owners filed suit in the District of the District of Columbia, seeking a temporary restraining order to halt the seizures of their property. U.S. District Judge David A. Pine, promptly held oral arguments, and on April 29, 1952, issued a well-reasoned 14-page decision, finding that the Executive Order violated the separation of powers, which–in effect–issued a nationwide injunction, barring the Secretary from seizing any mill in the United States. That same day, the D.C. Circuit, sitting en banc, stayed the district court’s decision so long as a petition for certiorari was filed with the Supreme Court by May 3. Papers were filed by May 3, and the Supreme Court granted review on May 3. Oral arguments were held on May 12 and May 13, followed by the landmark decision on June 2, 1952.
There is of course a third option: do nothing and let this case run its court. For institutional reasons, the government may not seek to burn the capital by seeking certiorari before judgment, and rushing this case up too quickly. There is another element that has not gotten much attention, but should. We are here dealing with an interim policy that will last only 90 days. More likely than not, the Supreme Court would be unable to resolve this issue before April 27, 2017. It is entirely possible that the government issues a final policy on, or before that date. Wouldn’t the SG rather the Supreme Court consider the final policy, and not the interim policy? Further, by waiting, there is a certainty that Justice Gorsuch would be on the bench, thus making it easier to get to five votes.
With respect to mootness, the “voluntary cessation” doctrine may allow the district courts to maintain jurisdiction, even if the January 27 executive order is withdrawn. I am researching this doctrine (among countless other issues with this break-neck issue), and will write about it in due time.
In short, what the ASG does, in large measure turns on how quickly the government wants the Court to resolve the issue. The administration will almost certainly seek an emergency stay, but I don’t know that there are five votes. If the administration wants a quick resolution from 4 Justices, ASG can petition for certiorari before judgment. If the ASG would rather have a full complement of nine Justices resolve the issue, it can seek a stay now, and take no further steps if it is denied.
Update: This thread captures more of my thoughts.