Neutral Principles for the Emergency Docket
In recent terms, several Justices have attempted to sketch standards for granting relief on the shadow docket. In Does v. Mills (2021), Justice Barrett and Kavanaugh focused on cert-worthiness as an important factor. But in Labrador v. Poe (2024), Justices Kavanaugh and Barrett focused on likelihood of success on the merits. These two tests are very much in tension. Department of States v. AIDS Vaccine Advocacy Coalition illustrates this tension.
In this dispute, the Trump Administration attempted to block the payment of certain foreign development assistance funds. The procedural posture of the case is complex. A federal district court issued a Temporary Restraining Order, which was in effect a mandatory injunction: the State Department had to pay out approximately $2 billion. On February 25, the district court ordered the government to pay funds for work that was already completed by February 26 at 11:59 p.m. Shortly before that deadline, Circuit Justice Roberts entered an administrative stay of the February 25 order. Roberts then referred the government’s application to the full Court.
The application sat pending for seven days. On March 5, the Court vacated the Chief Justice’s administrative stay. In other words, the Court denied the government’s request for an administrative stay. The vote was 5-4. Chief Justice Roberts, and Justices Sotomayor, Kagan, Barrett and Jackson, were in the majority. Justice Alito dissented, joined by Justices Thomas, Gorsuch and Kavanaugh.
The Court offered only one sentence of reasoning to explain its actions:
Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.
This order took me some time to sort through.
First, as a general matter, if the Court vacates an administrative stay, the lower court order goes into effect immediately. The District Court order required the payment of these funds by February 26. That order went into effect as soon as the stay was vacated. The Court says that the “the deadline in the challenged order has now passed.” That might be true, but it is irrelevant. If a court orders you
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