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(Photographer: Samuel Corum/Bloomberg)
Texas now has the authority to round up people it suspects of being immigrants and if they can’t prove they’re documented, the state offers them the choice of being deported to Mexico or going to prison. What if they aren’t from Mexico? Doesn’t matter!
This might not sound constitutional, because it’s not. Arizona tried this same exact thing a decade ago and the Supreme Court pointed out that this isn’t how any of this works. As Justice Kennedy wrote at the time, “The Supremacy Clause provides a clear rule that federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,’” and because the federal government “occupies an entire field, [of immigration registration], even complementary state regulation is impermissible.”
The district court recognized this and blocked the law. Texas appealed and asked the Fifth Circuit to stay the law pending appeal, allowing the law to go into effect. The Fifth Circuit issued such a stay but called it an “administrative stay” and not a real “stay” in an effort to shield the exact same outcome — a stay pending appeal — from Supreme Court review. The lives of the random minorities — many of whom will be U.S. citizens who just don’t have papers on them that the local cops like — cannot possibly turn on this sort of cynical semantic gamesplaying can they?
Oh you’d better believe they do with this Court!
Justice Barrett writing in concurrence says…
If the Fifth Circuit had issued a stay pending appeal, this Court would apply the four-factor test set forth in Nken v. Holder — including, as relevant in this Court, an assessment of certworthiness — to decide whether to vacate it…. But the Fifth Circuit has not entered a stay pending appeal. Instead, in an exercise of its docket management authority, it issued a temporary administrative stay and deferred the stay motion to a merits panel, which is considering it in conjunction with Texas’s challenge to the District Court’s injunction of S.B. 4.
Not a stay, but the stay before the stay. And since it’s just the stay before the stay and not a real stay it’s not something the Supreme Court can review.
Justice Barrett here invokes the doctrine of “we’re engaged to be engaged,” which is as much of a cop out line in jurisprudence as it is when your man dropped it on Valentine’s Day. And just like being “engaged to be engaged” it’s just an excuse to say “technically it’s not cheating.”
Get out, girl! Except in this case the “girl” is basic constitutional order.
We can only ascribe this reasoning to Barrett and Kavanaugh, who joined his fellow Trumpian concurring in the judgment. The rest of the right-wing justices felt comfortable issuing this decision without any explanation at all, an abdication that made them look smarter the longer Barrett flailed trying to explain how an administrative stay works:
At the same time, we stressed that the administrative stay reflected no view of the underlying merits. Ibid. June Medical is not an outlier. After receiving an emergency application, this Court frequently issues an administrative stay to permit time for briefing and deliberation — as JUSTICE ALITO did in this very case.
About that! Alito did issue something of an administrative stay in this case, but it prevented Texas from enforcing the law. Because the administrative stay exists, as Barrett struggles to explain, to maintain the status quo while judges decide whether or not to issue a real stay to maintain the status quo pending appeal. Importantly, the status quo that Alito maintained — and the only one that makes sense under Barrett’s reasoning — is the one where individual states can’t make their own immigration laws since that’s been the status quo for a couple hundred years or so.
A point that does not escape the notice of Justice Sotomayor:
Here, the Fifth Circuit’s administrative stay upends the status quo because it allows S.B. 4 — a brand new state law that alters the delicate balance of federal and state power in immigration enforcement—to go into effect. The District Court preliminarily enjoined S.B. 4 and declined to stay that injunction. The Fifth Circuit did not need to enter an administrative stay to preserve the status quo; the District Court’s decision already achieved that.
Barrett addresses this in a footnote. And by “addresses,” we mean shrugs and offers deliberately obtuse argle-bargle:
The “status quo” in this case is not self-evident. Is it the day before Texas enacted S.B. 4? The day before the lawsuit was filed? The day Texas’s appeal and stay motion was docketed in the Fifth Circuit?
As a writer, I have sympathy for whichever poor lackey burned midnight oil trying to satisfy the “Rule of 3” here. “Is the status quo in a lawsuit over the constitutionality of a law the day before the law was passed?” OBVIOUSLY. How long did they have to toil figuring out two nonsensical alternatives to fill this out? They’ve more than earned the gold mine Jones Day is going to give them.
Sotomayor continues, pointing out that an administrative stay, by definition, is limited in time to merely allow judges to get their act together and cannot be extended just to be an unreviewable stay in disguise. This stay, as she notes, is a sentence long, offers no underlying reasoning, and is completely temporally unbound.
Almost like the Fifth Circuit did this on purpose…
The Fifth Circuit recently has developed a troubling habit of leaving “administrative” stays in place for weeks if not months. See, e.g., United States v. Abbott, No. 23–50632 (85 days, from Sept. 7, 2023, to Dec. 1, 2023); Petteway v. Galveston Cty., No. 23–40582 (41 days, from Oct. 18, 2023, to Nov. 28, 2023); Missouri v. Biden, No. 23–30445 (66 days, from July 14, 2023, to Sept. 18, 2023); R. J. Reynolds v. FDA, No. 23–60037 (57 days, from Jan. 25, 2023, to Mar. 23, 2023); Campaign Legal Ctr. v. Scott, No. 22–50692 (48 days, from Aug. 12, 2022, to Sept. 29, 2022).
As is her way, Justice Kagan wrote separately and more bluntly:
And in the circumstances, I do not think the Fifth Circuit’s use of an administrative stay, rather than a stay pending appeal, should matter. Administrative stays surely have their uses. But a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.
But for Barrett, this history is of no moment because the Fifth Circuit, like, you know, pinky swears that it’s just an administrative stay. A shorter take on Barrett’s understanding of stays:
And you say I only hear what I want to
I don’t listen hard
Don’t pay attention to the distance that you’re running
To anyone, anywhere
I don’t understand if you really care
I’m only hearing negative, no no no
See, Loeb v. Heartless Bastard (1994).
Earlier: Only 5 Supreme Court Justices Believe In The Supremacy Clause And That’s A Real Fricking Problem
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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