What Is The Standard For A Stay? Moyle v. U.S. or Ohio v. EPA?
On Thursday, the Supreme Court decided two cases that concerned when an emergency stay should be granted: Moyle v. United States and Ohio v. EPA. Reading these two cases gave me whiplash. In Moyle, Chief Justice Roberts and Justice Kavanaugh voted to dissolve a stay. And in Ohio, Chief Justice Roberts voted to grant a stay. In both cases, Justice Barrett would have denied emergency relief altogether. At least one member of the Court is consistent.
I’ve talked enough about the prematurely released Moyle opinion (1, 2, 3, 4, 5, 6). As best as I can tell, there were no meaningful changes made in the final version. That suggests this case was done in May, but was being held till the end of the term for unstated reasons. It was released on Thursday, perhaps, because the document was out and the Court wanted to limit damage. Ultimately, no harm, no foul.
In Ohio v. EPA, states and industry groups sought an emergency stay of the Good Neighbor Plan, which limits emissions. The Court split 5-4. Justice Gorsuch voted to grant the stay. Justice Barrett dissented, and was joined by Justices Sotomayor, Kagan, and Jackson. I saw some comments that this case split along gender lines, but I think that description doesn’t do any work. Ohio v. EPA was a clear, and consistent manifestation of Justice Barrett’s aversion to grant any sort of emergency relief. And the Court’s progressives will gladly sign onto those criticisms of the shadow docket.
Justice Gorsuch’s majority opinion needed five votes. And he twice favorably cited Justice Kavanaugh’s Labrador concurrence–an opinion that Justice Barrett ignored in Moyle. This diplomatic gesture, if one was needed, likely helped bring Kavanaugh along. Gorsuch, citing Kavanaugh, explains that there are weighty harms on both sides of the ledger.
Like any other federal court faced with a stay request, we must provide the applicants with an answer—”grant or deny.” Labrador v. Poe, 601 U. S. ___, ___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 2). . . .
When States and other parties seek to stay the enforcement of a federal regulation against them, often “the harms and equities [will be] very weighty on both sides.” Labrador, 601 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 3). That is certainly the case here, for both sides have strong arguments with respect to the latter three Nken factors.
Next, Gorsuch, citing Chief Justice Roberts in Maryland v. King, explains that the state is always injured when its sovereign interests are impaired.
On one side of the ledger, the federal government points to the air-quality benefits its FIP offers downwind States. EPA Response 48–50. On the other side, the States observe that a FIP issued unlawfully (as they contend this one was) necessarily impairs their sovereign interests in regulating their own industries and citizens—interests the Act expressly recognizes. See Part I–A, supra; States’ Application 24–26; Maryland v. King, 567 U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers).
There is some tension here. In Moyle, Justice Barrett was willing to tolerate a partial impairment of the state’s interest–the “injunction will not stop Idaho from enforcing its law in the vast majority of circumstances.” Roberts and Kavanaugh joined that opinion. By contrast, in dissent, Justice Alito cited Roberts’s Maryland opinion as support for state standing. Again, Barrett is being consistent between Moyle and Ohio. Roberts and Kavanaugh are at odds with themselves.
Justice Gorsuch concludes with what I think is the most important aspect of Kavanaugh’s Labrador opinion: in an emergency posture, an application for a st
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