The on-again, off-again nationwide stay in the asylum regulation case is off again. The Supreme Court issued this order in Barr v. East Bay Sanctuary Covenant, 19A230:
Application (19A230) granted by the Court. The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The district court's July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment. JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from grant of stay.
At the end of this post, I suggest a solution to the nationwide stay problem.
Background is available in this article by Brent Kendall in the WSJ:
Judge Tigar's Monday order is here. The WSJ published this editorial, titled "President Tigar Strikes Again." The Ninth Circuit yesterday issued an administrative stay, maintaining the scope of the injunction to the Ninth Circuit for the time being. The Supreme Court's order goes further and stays the original injunction.Judge Tigar, who was appointed by former President Obama, first blocked the asylum restrictions nationwide in July, only to see an appeals court narrow his injunction last month. That latter ruling, from the Ninth U.S. Circuit Court of Appeals, said the restrictions couldn't be enforced against Central Americans who arrive at the border in California and Arizona, states that are within that judicial circuit. But the appeals court allowed the White House to enforce the rules in New Mexico and Texas, which are outside of the court's jurisdiction.
The Ninth Circuit, however, left open the possibility that Judge Tigar could again block the rules across the U.S. if he could offer stronger legal rationale for doing so. The judge took that path Monday, providing additional explanations for why he reached his decision.
Justice Sotomayor's dissent is here.
In sum, granting a stay pending appeal should be an "extraordinary" act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanctuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.
The increased frequency in granting stays pending appeal must be viewed in the context of the increased frequency of nationwide injunctions. The "new normal" of stays, as Justice Sotomayor calls it, is a necessary response to the "new normal" of nationwide injunctions.
I suggest an amendment to the Federal Rules of Appellate Procedure to cope with this new reality. An injunction against a government official or agency against enforcing a statute, regulation, or executive order will be automatically stayed upon the filing of a notice of appeal except to the extent that the enforcement relates directly to a named party to the action. For class actions, the parties would be only the named class representatives, not unnamed class members.
The stay could be lifted only by an order of the Supreme Court, for federal officers and agencies, or by the court of appeals en banc, for state or local officers or agencies.
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