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.