Crying Wolf: The Emergency Comes Before the U.S. Supreme Court

—Andrea Scoseria Katz, NYU School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

On Saturday, February 22, the United States Supreme Court granted an emergency request by the Trump administration to suspend a lower federal court order blocking a new immigration rule from taking effect while it faced challenge in litigation.[1] In an order issued summarily and without comment, the Supreme Court lifted the lower court injunction, allowing the rule to take effect.

Much of the commentary surrounding the case, Wolf v. Cook County, has focused on the “public charge rule,” which forces immigrants seeking residency in the United States to demonstrate that they will not rely on any public assistance, including Medicaid, supplemental nutrition, and housing assistance. Critics have described the new rule as a “wealth test” and a “brazen attempt to limit legal immigration by forcing immigrants to prove their financial status” to enter the country.[2] Last summer, a top Trump official responded to such criticism with an improvised paraphrase on Emma Lazarus’s sonnet, famously etched on the Statute of Liberty: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”[3]

Those debates notwithstanding, it may be the procedural oddities around Wolf that give the most lasting cause for alarm. After several courts blocked the revised rule on the grounds that it departed dramatically from federal law, the Government made a direct request for emergency relief to the Supreme Court while these cases were pending before the courts of appeal. In January, in an order issued with no explanation, and over the dissent of all four liberals, the Court granted the Government’s request and allowed the public charge rule to take effect across most of the country. This weekend’s order, concerning a second case on the rule, produced an identical 5-4 vote unaccompanied by an explanation. There was one difference: a scathing dissent from Justice Sonia Sotomayor accusing the majority of undermining the “fair and balanced” administration of justice by bowing to a series of “increasingly hollow” requests for emergency relief by the Trump administration.

Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.

As the University of Texas’ Steve Vladeck lays out in a recent HLR essay, the President’s use of emergency forms of relief has ordinarily been characterized by norms of extreme self-restraint.[4] During President George W. Bush’s eight years in office, the Solicitor General sought emergency relief exactly six times (once in a case that turned on a constitutional question being adjudicated in a companion case; most of the remainder were post-September 11th terrorism cases). From 2009-17, under President Barack Obama, the administration made six such applications (including three in a trio of cases on the constitutionality of same-sex marriage).[5] By contrast, the Trump administration’s use of these tools seems so zealous as to be greedy: the Executive Branch has filed 33 such applications since January 2017.[6]

The Court’s own rules and case-law state that a litigant seeking emergency relief must show “that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination,”[7] as well as “a likelihood that irreparable harm [will] result from the denial of a stay.”[8] Yet in Wolf, the Trump administration was faced with nothing more than an administrative headache. The public charge rule was already set to roll out in all forty-nine states but one, yet the Court still accepted the Administration’s strained claim that irreparable harm would result “from having to forgo implementing the Rule.”[9]

Wolf is far from the only case in which the Administration has invoked before the Court an emergency that was largely unsubstantiated. In a recent case challenging the constitutionality of the Administration’s attempt to include a question on citizenship in the 2020 Population Census, the Solicitor General argued for an emergency stay on grounds that forcing “high-ranking officials in two agencies” to prepare for and participate in litigation would “indisputably ‘interfer[e] with’ their ‘ability to discharge [their] constitutional responsibilities.’”[10]

As Vladeck argues, there now exists a solid majority on the Court willing to believe that the government suffers an irreparable injury whenever a statute or policy is enjoined by a lower court, regardless of the ruling’s actual possible impact. The Court has granted 19 of 33 applications  by the Trump administration, and even where it has rejected them, it has often done so without any suggestion that the Administration’s approach is unprecedented, improper, or unwelcome.[11] (By contrast, the Court has recently refused to halt several challenged prisoner executions.) Why the Court is granting safe harbor to specious invocations of an emergency is a matter of debate. One possible reason is that the Administration’s entreaties have furnished a vehicle for carrying out a vendetta favored by several conservative justices against the nationwide judicial injunction.[12]

A more unsavory possibility is pure political favoritism. As Justice Sotomayor wrote in dissent, this “shift in the Court’s own behavior comes at a cost.” Sotomayor believes emergency stays not only waste valuable time and resources on matters that are still being developed in lower tribunals and erode the appellate process, but also reverse traditional norms of deference. In fact, after the order issued, President Trump took to Twitter to argue that Justice Sotomayor should recuse herself “on all Trump, or Trump related matters!”[13] If complacency toward an overconfident administration by a Court “battered in the past three years” by scandal should result in civil procedure being politicized, the federal appellate process deformed, and a pattern of abuse of the emergency normalized, the real casualty will be the image of an independent judiciary.[14]

Suggested citation: Andrea Scoseria Katz, Crying Wolf: The Emergency Comes Before the U.S. Supreme Court, Int’l J. Const. L. Blog, Feb. 26, 2020, at: http://www.iconnectblog.com/2020/02/crying-wolf-the-emergency-comes-before-the-u-s-supreme-court/

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[1] Chad Wolf et al. v. Cook County, Illinois, 569 U.S. __ (Feb. 21, 2020) (on application for stay).

[2] Natasha Lennard, “‘Public Charge’ Ruling Shows the Supreme Court Won’t Save Us From Trump’s Anti-Immigrant Agenda,” The Intercept (Jan. 28, 2020); Mark Joseph Stern, “Sonia Sotomayor Just Accused the Supreme Court’s Conservatives of Bias Toward the Trump Administration,” Slate (Feb. 22, 2020).

[3] Devan Cole and Caroline Kelly, “Cuccinelli rewrites Statute of Liberty poem to make case for limiting immigration,” CNN (Aug. 13, 2019).

[4] Stephen I. Vladeck, “The Solicitor General and the Shadow Docket — The Supreme Court – Essay” 133 Harvard L. Rev. 123, 124 (2019). The Court’s authority to issue emergency relief encompasses several distinct powers: to hear appeals before the lower courts have finished ruling (certioriari before judgment); to halt the effect of lower-court rulings pending the Court’s review (emergency stays); and to issue measures to rein in perceived abuses by lower courts (writs of mandamus or prohibition). See 28 U.S.C. §§ 1254(1) and 2101(e-f) and Sup. Ct. R. 11 (on petitions for writs of certiorari before judgment); and 28 U.S.C. §§ 1651 and 2241(a) and Sup. Ct. R. 20, 23 (on petitions for “extraordinary writs”).

[5] See Vladeck at 132-134.

[6] Id.

[7] Sup. Ct. R. 11.

[8] Vladeck at 131; Conkright v. Frommert, 556 U.S. 1401, 1402 (2010).

[9] Reply Brief by Petitioner in Support of Application for a Stay, at 13, Wolf v. Cook County, No. 19A905 (U.S. Feb. 20, 2020).

[10] Application for a Stay, at 1, In re Dep’t of Commerce, No. 18A350 (U.S. Oct. 3, 2018).

[11] Vladeck at 152. So far, the administration has sought 21 stays from the Supreme Court (twelve of which were granted in whole or in part); requested direct mandamus relief against lower-court judges in at least three different filings (two of which were converted into petitions that were later granted); and sought certiorari before judgment nine times (five of which were granted).

[12] Marcia Coyle, “Gorsuch and Thomas Decry ‘Chaos’ of National Injunctions, as Judges Check Trump,” Law.com (Jan. 27, 2020).

[13] Meagan Flynn and Brittany Shammas, “Trump slams Sotomayor and Ginsburg, says they should recuse themselves from ‘Trump-related’ cases,” The Washington Post (Feb. 25, 2020).

[14] Garrett Epps, “The Supreme Court is Trump’s Enforcer,” The Atlantic (Sept. 15, 2019).