//  6/27/17  //  Commentary

The Supreme Court’s travel ban order deviates sharply from well-established standards for the granting of a stay. That’s not a criticism as much as an observation: anyone familiar with the Court’s stay jurisprudence will notice very quickly that something is very unusual here. For better or for worse, the spirit of compromise trumped the letter of the law.

Let’s start with the law—and, specifically, with the Court’s four-factor test for a discretionary grant of an appellate stay. As Chief Justice Roberts explained in Nken v. Holder:

The fact that the issuance of a stay is left to the court’s discretion does not mean that no legal standard governs that discretion. A motion to a court’s discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles. . . . [T]hose legal principles have been distilled into consideration of four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. . . . The first two factors of the traditional standard are the most critical.

Yesterday’s order in Trump v. IRAP(consolidated with Trump v. Hawaii)was a decision on the Solicitor General’s application to stay the preliminary injunctions issued by the lower courts. Since the SG was the one applying for a stay, that means the SG needed to make a strong showing of likelihood of success and irreparable injury. “Refusing to evaluate [the applicant’s] likelihood of success on the merits” would, as Justice Ginsburg wrote in 2014, “show[] little respect for this Court’s established stay standards.” Likewise, the Court has said that it is reversible error for a lower court to grant a stay or preliminary injunction without an explicit finding of irreparable injury.

One might expect, then, that before deciding to stay portions of the lower courts’ injunctions in the travel ban cases, the Supreme Court would have found that the government made a strong showing of likelihood of success and irreparable injury in the absence of a stay. But one searches in vain for any such findings in yesterday’s per curiam opinion. Here is the entirety of the analysis addressing section 2(c), the provision of the second executive order suspending entry from six predominantly Muslim countries

[The lower court injunctions] bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.

At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO-2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. The interest in preserving national security is an urgent objective of the highest order. To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.

Note what’s missing from that analysis. The Court never says that the government is likely to succeed on the merits. If the executive order violates the Establishment Clause, as the Fourth Circuit concluded, then the government should lose on the merits even if everything the Supreme Court says in its per curiam order holds true. And likewise, the Court never says that the lower court injunctions irreparably injure the government. (It says that the injunctions “appreciably injure” the government, but find me the thesaurus that lists “appreciably” and “irreparably” as synonyms.) In sum, the Court issues a stay without finding that the “most critical” criteria for a stay have been met.

Justice Thomas, joined by Justices Alito and Gorsuch, highlights these omissions in his partial concurrence/partial dissent. He says he “agree[s] with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits”—implicit but never explicit. Justice Thomas also adds his own finding of “irreparable harm,” thus drawing attention to the fact that no such finding appears in the per curiam opinion.

We can’t know for sure why the per curiam opinion reads the way it does, but it doesn’t take much to read the tea leaves here. Presumably, some members of the Court thought that in this highly contentious case, it was an important to issue a decision that wasn’t divided on partisan lines. Meanwhile, some members of the Court were unwilling to sign onto an opinion finding that the government was likely to succeed on the merits. It’s not hard to guess which Justices would have taken each view. Ultimately, six Justices reached a compromise in the form of a per curiam opinion that doesn’t quite work legally but serves the purpose of preserving institutional legitimacy. The three most conservative Justices—who care more about upholding the travel ban than about presenting a united front—jumped off the bandwagon.

Personally, I’m not too upset about the majority’s decision to fiddle with the stay standard if that’s what it took to reach the result it did. A few appellate lawyers and law professors will notice the deviation from the four-factor stay standard and will attribute it to intra-Court politics. Most Americans will see an evenhanded decision that commands the support of Democratic and Republican appointees alike. At the end of the day, the institution comes out looking better, and Nken comes out a bit battered. A lower court that tried this move would risk reversal, but sometimes the Supreme Court prioritizes institutional legitimacy over doctrinal consistency. Formalists will disagree, but I think the Court has its priorities right.


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