Trump trumpeted the Court's action, with two liberal justices dissenting, as a "big win" for the administration. The Court's brief, unsigned order in Barr v. East Bay Sanctuary Covenant greenlighted new rules that a federal judge in San Francisco had found to be inconsistent with U.S. asylum law and that a federal appeals court had blocked pending the government's appeal.
Apart from the merits of the issue, the episode is significant as the administration's most recent instance of asking the Court for "extraordinary" relief in high-profile legal disputes after losing in lower courts. Under ordinary procedures, the losing party in a lawsuit is not entitled to stay the effect of a lower court decision while pressing its appeal.
The Trump administration, however, has resorted with what one expert calls "unprecedented frequency" to asking the Supreme Court to stay adverse decisions in lower courts with the outcome on appeal uncertain. Steven Vladeck, a law professor at the University of Texas in Austin, shows in a new law journal article that the Trump administration has sought extraordinary relief from the Supreme Court more than 30 times in the past three years, more than twice the number of such instances by the previous two administrations over the previous 16 years.
The Court's decision to allow the new asylum rules marks the second time in less than three months that the justices let this most lawless of presidents put into effect a policy on a highly charged political issue that a lower court had blocked. The justices divided 5-4 in an unsigned order issued on July 28 that allowed the administration to transfer Defense Department funds to Trump's southern border wall after Congress refused to appropriate funds for that purpose.
In that instance, the Court gave a reason of sorts for its action. The unsigned, one-paragraph order noted "strong doubts" that the environmental groups challenging the reprogramming of military funds had legal standing to vindicate Congress's authority over federal spending. Vladeck criticizes both the administration's tactics and what he calls the Court's "acquiescence" in the unusual practice as short-circuiting ordinary appellate procedures to the disadvantage of private parties challenging the government.
Ostensibly, the Court's rules requires an applicant seeking a stay of a lower court decision pending appeal to show it will suffer irreparable injury without a stay. Vladeck notes that Roberts has written that the government suffers an irreparable injury when blocked from putting its policies into effect during a legal challenge. Private plaintiffs unsuccessfully challenging a government policy do not get that kind of solicitude if they complain of irreparable injury while they suffer the effects of the challenged policy.
The Trump administration has had what Vladeck calls a "middling" success rate on these extraordinary requests. Along with the latest wins on asylum rules and the border wall funding, the administration was also allowed to put into effect its limits on transgender military service members despite four lower court rulings to block it.
The justices also favored the administration by blocking the federal judge in the census case from deposing Commerce Secretary Wilbur Ross under oath about his reasons for adding a citizenship question to the 2020 census. On the other hand, the Court refused to let the administration rescind the Obama policy known as DACA — deferred action for childhood arrivals — pending a final decision in the cases challenging the administration's action.
In the most recent instance, Justice Sonia Sotomayor cited Vladeck's study in criticizing the Court's receptivity to the administration's pleas. "[G]ranting a stay pending appeal should be an 'extraordinary' act," she wrote, quoting a prior decision. "Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively."
Vladeck implicitly argues that the full Court should be objecting to the administration's tactics. The Court, he notes, has made "no suggestion . . . that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds."
The administration and its supporters defend the practice by complaining that federal district court judges have been freer than in the past in issuing nationwide injunctions to block administration policies pending appeals. Attorney General William Barr noted in an op-ed in the The Wall Street Journal that federal judges have issued 40 nationwide injunctions during the Trump years, but issued only 20 such rulings during the eight years of the Obama administration.
Jonathan Turley, a frequent legal affairs commentator and law professor at George Washington University Law School, similarly sees the administration's tactics as a response to nationwide injunctions, which he says create "a dysfunctional element in the court system and a more direct avenue to the Supreme Court for the government." Some of the justices, he adds, appear to be "losing patience with national injunctions by trials . . . ."
The Roberts Court has been less than evenhanded in the area. The Court took no action to allow the Obama administration to put its so-called DAPA policy — deferred action for parents of Americans — into effect after a federal judge in Texas issued a nationwide injunction to block the policy. The Court's solicitude toward Trump's policies is further evidence, alas, that the five Republican-appointed justices did not leave their party registration cards behind them after donning their judicial robes.
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