Race for a Stay? The Travel Ban and the Little Sisters

July 13th, 2017

Thursday evening, the district court in Hawaii issued an injunction, ordering the United States to exempt from the travel ban certain close family members (such as grandparents) and refugees. Critically, Judge Watson denied the government’s request to stay his ruling:

The Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this order be filed.

Unless a higher court intervenes, promptly, federal officials who deny entry to grandparents, for example, can be held in contempt of court.

The Solicitor General has previously indicated that if a stay was denied, the United States could bypass the Ninth Circuit and go directly to the Supreme Court. If the government takes this route (they may not appeal at all), the application for an emergency stay would be directed to Circuit Justice Kennedy, who supervises appeals from the Ninth Circuit.

In the normal course, a Justice would respond to an application for a stay by requesting a reply brief, and then distributing it to the full court. They seldom act solo. In this case, however, every moment that lapses is another moment where federal officials around the globe could be held in contempt of court. There remains the possibility that Circuit Justice Kennedy could grant a temporary stay, in chambers, to provide all parties an opportunity to brief the case, and allow the Justices (who are scattered across the globe) a chance to conference.

There is a precedent: the Little Sisters of the Poor.

As I recount in Unraveled, the Affordable Care Act’s contraceptive mandate was slated to go into effect on January 1, 2014. On December 31, 2013, the Tenth Circuit Court of Appeals declined the Little Sister’s request to stay the district court injunction. That evening, the Little Sisters filed an emergency appeal to Circuit Justice Sotomayor. Shortly before dropping the ball in Times Square (I was there!), she issued a temporary stay to allow the parties to file their briefs, and to permit the Court a chance to conference:

UPON CONSIDERATION of the application of counsel for the applicants, IT IS ORDERED that respondents are temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, 42 U. S. C. 300gg-13(a)(4), and related regulations pending the receipt of a response and further order of Justice Sotomayor or of the Court. The response to the application is due Friday, January 3, 2014, by 10 a.m.

The Court took no further action until January 24, 2014, when, without recorded dissent, the Justices enjoined the enforcement of the mandate as to the Little Sisters. Had Justice Sotomayor not issued the stay in chambers, on January 1, the Little Sisters would have been subject to the mandate. (I am deliberately leaving aside here the intricacies of ERISA, and whether the Sisters would in fact have been penalized).

If Justice Kennedy issues a temporary stay in chambers, Little Sisters provides the precedent.