Ninth Circuit Denies Government Request for Emergency Relief in Birthright Citizenship Case
Today the U.S. Court of Appeals for the Ninth Circuit denied the Trump Administration’s request for emergency relief in Washington v. Trump, one of the cases challenging the Trump Administration’s Executive Order purporting to narrow and redefine birthright citizenship. Specifically, the Trump Administration sought a partial stay of the preliminary injunction against acting on the Executive Order entered by the district court. The panel of Judges Canby, M. Smith, and Forrest denied the motion, stating simply that the Administration had “not made a ‘strong showing that [they are] likely to succeed on the merits’ of this appeal.”
Judge Forrest (incidentally a Trump appointee) wrote a separate concurring opinion, explaining her reasons for denying the motion. It is reproduced below.
The Government has presented its motion for a stay pending appeal on an emergency basis, asserting that it needs the relief it seeks by February 20. Thus, the first question that we must ask in resolving this motion is whether there is an emergency that requires an immediate answer.
Granting relief on an emergency basis is the exception, not the rule. Cf. Nken v. Holder, 556 U.S. 418, 427 (2009) (noting that a non-emergency stay “is an ‘intrusion into the ordinary processes of administration and judicial review,’ and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.'” (citations omitted)); Labrador v. Poe ex rel. Poe, 144 S. Ct. 921, 934–35 (2024) (mem.) (Jackson, J., dissenting from grant of stay) (“Even when an applicant establishes [the] highly unusual line-jumping justification [for a nonemergency stay], we still must weigh the serious dangers of making consequential decisions ‘on a short fuse without benefit of full briefing and oral argument.'” (citations omitted)). Neither the Federal Rules of Civil Procedure nor the Federal Rules of Appellate Procedure address what a party must show to warrant immediate equitable relief. Cf. Fed. R. Civ. P. 62(g)(1); Fed. R. App. P. 8(a)(2)(D); Fed. R. App. P. 27(c). Nor do the “traditional” stay factors that we analyze when considering whether to grant a stay pending appeal. See Nken, 556 U.S. at 425–26. But this court’s rules provide some guidance. Ninth Circuit Rule 27-3, which governs emergency motions, provides that “[i]f a movant needs relief within 21 days to avoid irreparable harm, the movant must,” among other things, “state the facts showing the existence and nature of the claimed emergency.” If the movant fails to demonstrate that irreparable harm will occur immediately, emergency relief is not warranted, and there i
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