Current federal law requires federal executions to be carried out in the "manner" provided by the law of the state where the conviction was rendered, or if that state has no death penalty by the law of a state designated by the district court. See 18 U.S.C. § 3596. All the way back to the First Congress in 1790, Congress has used the word "manner" to refer to a general way of causing death. The First Congress prescribed the "manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until dead." See 1 Stat. 119. It did not specify the thickness of the rope, the length of the drop, the type of knot to be tied, or any other such details.

Some state statutes designate a "manner" and others designate a "method," but nearly all use those terms in a similarly general way. In Arkansas the statute goes into more detail, but that is due to an aberrant decision of that state's supreme court taking an extreme view of the nondelegation doctrine rejected everywhere else. See this post.

Despite history and widespread usage of "manner of execution" and "method of execution" as synonymous, Judge Chutkan decided that "manner" includes all the details of the state's procedure, down to such things as catheter insertion.

If upheld, that would be a neat little Catch-22 preventing enforcement of the federal death penalty in many states. In a state that has the death penalty on the books but has not updated its protocol, the defendant could claim that the federal government violates the statute if it does not use the state's method and the Eighth Amendment if it does.

It is obvious from reading this opinion that Judge Chutkan very much wants this result. Her dismissive comments in the weighing of equities indicate a "eh, no big deal" attitude toward a complete halt of federal executions. I think she has been too clever by half. This is the attitude that the Supreme Court denounced in the Glossip and Bucklew decisions. The Court said in Glossip that since the death penalty is constitutional there must be a way to carry it out. Catch-22s are out of order. The Court said in Bucklew that further delays in already long-delayed sentences are indeed a big deal. See this post.

The Government's motion to stay or vacate the injunction is here. If they don't get relief in the Court of Appeals, I expect they will in the Supreme Court.