Bonus 105: More "Administrative Stay" Shenanigans in Texas

A new emergency application in an immigration case provides an important opportunity for Justice Barrett to enforce her skepticism about open-ended "administrative stays."

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

There’s obviously a lot of election-related news out there, and I’m planning to write more, either later today or tomorrow, about yesterday’s surprising and unexplained ruling, over public dissents from the three Democratic appointees, putting back into effect Virginia’s purge of 1600 people from the voter rolls who the state suspects to be non-citizens. But for today’s bonus issue, I wanted to write about an emergency application in a non-election dispute—arising out of a lawsuit by Texas and 15 other red states challenging the Biden administration’s “parole-in-place” immigration program, which is currently pending before Judge J. Campbell Barker in the Tyler Division of the U.S. District Court for the Eastern District of Texas. As part of that lawsuit, the district court has imposed, on its own authority, a series of what it has called “administrative” stays, the net effect of which has been to keep the program on hold—on a nationwide basis—for the last 66 days (since August 26), and at least through next Friday, November 8.

Back in March, Justice Barrett, in an important concurrence joined by Justice Kavanaugh (in another immigration case out of Texas), warned against the abuse of open-ended administrative stays by courts of appeals—which, in her view, should be in place only for long enough for the court to decide whether to issue a stay of a trial-court ruling for the entire duration of the appeal. What’s happening in the parole-in-place case strikes me as significantly more abusive—for what is being “stayed” is not a lower-court ruling, but an entire governmental program. Even if the district court is planning to rule on the merits in the near future, it still seems like the Supreme Court ought to repudiate this kind of procedural behavior—regardless of who is likely to prevail on the merits of the underlying dispute, or when. A universe in which individual district judges can block federal programs for months on end in a way that is effectively insulated from even emergency relief is one that no one should be willing to accept.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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The Parole-in-Place Program and Texas’s Challenge

Federal law expressly authorizes the Secretary of Homeland Security to “parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.” In August, Secretary Mayorkas issued guidance explaining that granting parole “in place” to certain noncitizens who have been in the country for at least a decade, who are married to or are the stepchildren of a U.S. citizen, and who meet other criteria would confer a significant public benefit. In other words, the federal government would, on a case-by-case basis, provide eligible non-citizens with a form of temporary status that would allow them to remain in the United States, rather than returning to their country of origin, while they applied for more permanent immigration status—like a green card—in order to avoid the disruptions to families that would otherwise occur.

Shortly after the guidance was announced, Texas, joined (nominally) by 15 other red states, brought suit challenging it in the Tyler Division of the U.S. District Court for the Eastern District of Texas—where it was assigned to Judge Barker, himself an alumnus of the Texas Attorney General’s Office who, while in that position, had regularly represented the state in challenges to federal immigration policies. Texas’s central argument is that the new guidance is ultra vires—and that the Secretary lacks the authority to parole “in place” under the relevant section individuals who are already in the United States, as opposed to providing parole as a basis for lawful entry. It should be noted that this argument is a bit of a stretch on its face; as recently as 2019, Congress expressly reaffirmed not just that § 1182(d)(5) includes the authority to “parole in place,” but that “the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed.” (Texas also argues that parole in these cases fails to confer a “public benefit,” but the statute provides no standard for assessing what does and doesn’t qualify.)

The Procedural Posture, To Date

The day after Texas filed its suit, Judge Barker issued what he characterized as an “administrative stay” of the parole-in-place guidance—barring the Department from granting parole-in-place under the new guidance for 14 days. The only legal justification Judge Barker provided was the following paragraph:

the court has undertaken a first-blush review of the merits of plaintiffs’ standing and cause of action in light of the evidence submitted with their motion for a TRO and a stay. The claims are substantial and warrant closer consideration than the court has been able to afford to date. That conclusion is particularly based on the need to analyze (1) whether parole “into” the United States, 8 U.S.C. § 1182(d)(5)(A), includes entry by aliens who are already in this country, as opposed to at or beyond the border; and (2) the rule’s possible misapprehension of the legal standard in focusing on significant public benefit from “this process,” rather than whether a specific alien’s lawful presence in the country would have public, as opposed to private, benefit that is significant.

Judge Barker justified the “administrative stay” by looking to other examples in which courts had issued brief pauses of lower-court rulings while considering grants of emergency relief. But, tellingly, he did not grant a TRO or preliminary injunction (the latter of which Texas had sought)—both of which would have triggered different (and more heightened) requirements under the Federal Rules of Civil Procedure. Indeed, Texas’s motion for a preliminary injunction remains pending. Instead, quoting Justice Barrett’s March 2024 concurrence, Judge Barker specifically pointed to the fact that “there is no ‘one-size-fits-all test that courts apply before entering’ such an administrative stay. Instead, ‘as a flexible, short-term tool,’ the remedy is a ‘prelude to the main event’ of a ruling that fully considers the four factors for a injunction lasting through final judgment.”

If the original administrative stay really was just for 14 days, that would’ve been one thing. But on September 4 (shortly before the initial 14-day “stay” was to expire), Judge Barker, in denying a motion to lift the temporary stay, concluded that “it was and remains proper to temporarily stay parole issuance under the challenged rule until an expedited hearing on the motion for a preliminary injunction.” The September 4 order cryptically traced the court’s authority to continue blocking the program to 5 U.S.C. § 705, even though I’m not aware of (and the district court did not cite to) any examples of a district court using that statute to issue what is, for all intents and purposes, a preliminary nationwide injunction against a federal program. Thus, the September 4 ruling took the 14-day “administrative” stay that Judge Barker had justified as a temporary expedient, and turned it into a forward-looking nationwide preliminary injunction in all-but name.

After a brief back-and-forth with the Fifth Circuit over whether 11 prospective parole applicants and an immigrants’ rights group could intervene in the case, Judge Barker once again extended the “temporary” pause on the program on October 4—issuing an expedited schedule to govern briefing (and a trial) of the merits, currently scheduled for November 5 (i.e., next Tuesday). The program would remain paused, Judge Barker ruled, until at least November 8—by which point it will have been on hold for 74 days (i.e., five times as long as the initial 14-day “pause”).

On October 9, those 11 prospective applicants and the Coalition for Humane Immigrant Rights sought emergency relief from the Fifth Circuit—asking the court of appeals to unblock the parole-in-place program pending disposition of a writ of mandamus to the district court, and asking the court to rule by October 17. On October 22, when the Fifth Circuit still had not ruled (it denied mandamus and a stay the following day), the applicants sought emergency relief from the Supreme Court—asking the justices to put the program back into effect while proceedings continue to unfold in the district court. Even though that application has now been docketed for a week (since last Thursday, October 24), Justice Alito has yet to call for a response from either Texas or the federal government. It’s just sitting there.

“Administrative” Stays and Justice Barrett’s SB4 Concurrence

Insofar as Judge Barker has defended his procedural behavior in this case, it has been by reference to Justice Barrett’s March 2024 concurrence in another Texas immigration case—in which she explained why she wasn’t voting to vacate an “administrative stay” the Fifth Circuit had imposed against a district court injunction. But as much as Barrett’s concurrence, which was joined by Justice Kavanaugh, suggested that appellate courts ought not to be in the business of lifting administrative stays, she was just as clear that, to be valid, administrative stays had to be exceedingly brief. In her words:

The real problem—and the one lurking in this case—is the risk that a court will avoid [the traditional requirements for equitable relief] for too long. An administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal. Once the court is equipped to rule, its obligation to apply the [traditional] factors is triggered.

Whatever might be said about the original 14-day pause Judge Barker entered in August, this passage seems to be a perfect description of what’s happened in the case since September 4. Even if district courts have the power to issue an “administrative stay” of a federal program (which, it should be said, is not remotely obvious, and does not follow from the Barrett concurrence), it ought to follow that the limits on such relief are at least the ones that limit administrative stays of lower-court rulings by appeals courts. Here, Judge Barker had plenty of time “to make an intelligent decision” on preliminary injunctive relief; indeed, the September 4 opinion should have been it. To allow an “administrative” stay to effectuate a nationwide pause on a federal program for 11 weeks is to turn Barrett’s concurrence entirely on its head. More to the point, what Judge Barker is doing is effectively trying to fast-track a final judgment on the merits—and using that as the end-point for the “temporary,” beginning-of-litigation relief. Whatever else might be said about this kind of approach to merits litigation, there is nothing “administrative” about a stay that lasts for as long as it takes the issuing court to decide the entire case.

And as true as all of that is in the abstract, it’s especially galling here—because, had Judge Barker been forced to apply the traditional factors for equitable relief, those factors may well have counseled against any judicial intervention. As the emergency application in the Supreme Court notes, it is more than an uphill battle for Texas to establish that it even has Article III standing (none of the other states are claiming that they do); and the merits arguments about a lack of statutory authority are difficult to reconcile with the text of the statute, the history of its implementation, and Congress’s explicit reaffirmation of the parole-in-place authority in 2019. And all of this assumes that Texas has demonstrated irreparable harm—let alone irreparable harm that outweighs the harm to prospective parole applicants from having to leave their families and return to their countries of origin while waiting for their green card applications to be processed. In other words, one could plausibly claim that the difference between the loose, flexible standard for an “administrative” stay and the more conventional standard for preliminary injunctive relief is, in this case, dispositive. And that’s before we get to the distinct question, which Justice Gorsuch has repeatedly flagged, about whether the APA (the only authority on which Judge Barker has even cryptically relied) even authorizes nationwide relief in the first place. Earlier this month, the Department of Justice filed a cert. petition asking the justices to hold that it doesn’t.

Why This Matters

If you’ve gotten this far, you might be wondering, as is often the case with these kinds of procedural critiques, why this deeply problematic behavior by Judge Barker (and by the Fifth Circuit, in not intervening) is relevant beyond the contours of this specific dispute. In my view, there are three different—bur related—reasons:

First, if they’re not repudiated, then Judge Barker’s maneuverings will surely be replicated. Indeed, if district courts can impose nationwide halts on federal programs, even when the lawsuit challenging them is dubious on its face, for 11 weeks without fearing any appellate intervention, it shouldn’t be hard to see how judges from across the ideological spectrum would take advantage of “administrative” stays to block whichever federal programs they’re asked to block—in ways that, so long as this practice is blessed, would be effectively insulated from immediate judicial review. Indeed, I wrote at the time that the prospect of courts of appeals abusing administrative stays was one of the real concerns raised by Justice Barrett’s concurrence; district courts abusing them is, in some respects, even worse.

Second, and speaking of Justice Barrett, her entire argument for not intervening in March—in a ruling that allowed a stunningly broad state-level deportation regime to go briefly into effect in Texas—was because, in her view the administrative stay in that case was not clearly abusive. If she is not going to actually enforce the line between “legitimate” and “illegitimate” administrative stays going forward, that makes her March opinion look ever more like a post hoc justification for not intervening in that case, as opposed to a principled position she intends to operationalize going forward.

Finally, Judge Barker’s actions draw into sharper view the ongoing debate over whether/when federal courts have the power to “stay” administrative action in general. As this case makes clear, a “stay” in this context looks a heck of a lot like an injunction—relief that tends to require something of a higher showing. Indeed, there’s an excellent recent student note by Thomas Koenig in the Harvard Law Review titled Halting Administrative Action in the Supreme Court that walks through how … incoherent … the doctrine has become. One reason why this debate hasn’t gotten a lot of attention to date is because it’s only an issue in cases in which challenges to administrative action begin in the courts of appeals. But if district courts are going to start issuing nationwide “stays” of administrative action pursuant to even weaker standards than what courts of appeals are using, that only exacerbates the problem—and the need for someone, be it Congress or the Supreme Court, to clarify exactly what is, and what isn’t, allowed, whether on a “temporary” basis or more permanently.

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Against this backdrop, it’s more than a little worrying that Justice Alito hasn’t yet even called for a response to the application. Perhaps Alito is waiting until the current iteration of Judge Barker’s “administrative” stay expires on November 8—at which point, the emergency application to lift it would arguably become moot. But (1) nothing would stop Judge Barker from extending that temporary pause once again; and (2) it would hardly be surprising if Judge Barker uses the guise of the “trial” next Tuesday to issue a permanent injunction, at which point the question of whether the parole-in-place program should be allowed to go into effect on a nationwide basis or not while the case works its way up to the Supreme Court would once again be very ripe.

In other words, the longer the justices wait to push back against Judge Barker’s behavior in this case, the more that they are (1) incentivizing similar behavior by other district judges going forward; and (2) calling into question their own prior admonitions against abusing “administrative” stays (in Justice Barrett and Justice Kavanaugh’s case); and against open-ended “nationwide” relief (in Justice Gorsuch’s case). Just hoping that the dispute gets mooted—and dismissing the application if and when it does—won’t dissipate either of those profoundly troubling takeaways.