Supreme Court’s Texas Order Highlights Abuse of Dubious Shortcut

The US Supreme Court will likely one day decide the constitutionality of the Texas immigration law it allowed to take effect this month, but the court’s March 19 order in the case turned on an arcane procedural device that has emerged in recent years—the so-called administrative stay.

Administrative stays are an under-the-radar scandal, and the time has come to rein them in.

The administrative stay originated as a tool for appellate courts to solve a problem of timing in evaluating motions for emergency relief. When a lower court issues a ruling that threatens to impose immediate harm, a party may ask an appellate court to stay the trial court’s ruling during litigation with what is called a “stay pending appeal.” Because lower courts’ rulings are presumed correct, a stay pending appeal is an “extraordinary” remedy requiring a showing of a likelihood of success on the merits and irreparable harm.

But appellate courts need time to decide whether to grant a stay pending appeal—they must study the record, read the parties’ submissions, and sometimes issue written opinions.

Enter the administrative stay. Appellate courts may issue an administrative stay to buy some time as they consider whether to grant a full-blown stay pending appeal.

When used for its intended purpose, an administrative stay is a sensible short-term tool that allows appellate courts to maintain the status quo as they take a few days to decide whether the extraordinary relief of a stay pending appeal is warranted.

But administrative stays can be—and ever more frequently have been—used by courts of appeals to award indefinite relief without bothering to resolve the underlying stay request. The practice has metastasized in recent years, and it effectively gives parties a stay pending appeal without any showing that they deserve one.

The Supreme Court’s immigration order spotlights this misuse of administrative stays. After Texas passed its controversial law allowing state officials to arrest individuals suspected of entering the country illegally, a trial court quickly declared the law unconstitutional. Texas then asked for a stay pending appeal from the US Court of Appeals for the Fifth Circuit.

Before even awaiting the plaintiffs’ full response, the Fifth Circuit granted what it called an “administrative stay,” then deferred the motion for a stay pending appeal to the merits panel. For all practical purposes, this gave Texas a stay pending appeal without any finding that it had met the high bar for one.

The Supreme Court blessed this maneuver. While the majority didn’t explain its reasoning, Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, justified the decision not to intervene on the ground that the Fifth Circuit had merely entered an “administrative stay” and “has not yet rendered a decision on whether a stay pending appeal is warranted.”

In her dissenting opinion, Justice Sonia Sotomayor noted the Fifth Circuit’s “troubling habit of leaving ‘administrative’ stays in place for weeks if not months.” But the Fifth Circuit is hardly the only offender. The practice has become ubiquitous throughout the courts of appeals.

The most egregious case I’m aware of came out of the US Court of Appeals for the District of Columbia Circuit—and I was on the wrong end of it.

The issue arose in landmark litigation addressing whether the House of Representatives had authority to bring suit in federal court to enforce a congressional subpoena against former White House Counsel Don McGahn during the run-up to the first impeachment of former President Donald Trump. The House Office of General Counsel (where I then worked) in 2019 persuaded Ketanji Brown Jackson, then a district court judge, to order McGahn to comply with the subpoena.

The D.C. Circuit granted an administrative stay, noting the stay “should not be construed in any way as a ruling on the merits of either the motion for stay pending appeal or the appeal.”

But it then left that so-called administrative stay in place for more than a year and a half—until the election of President Joe Biden forced the parties to a negotiated resolution of the case. As a result of the administrative stay, the House didn’t obtain the testimony from McGahn that could have made a difference in its impeachment effort.

Even as she acquiesced to the Fifth Circuit’s administrative stay, Barrett noted that an “administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal.” I agree. In the world of high-stakes appellate litigation, delay can be the whole ballgame, and the practice of granting an administrative stay as a substitute for a stay pending appeal is indefensible.

Because improper administrative stays are equal-opportunity offenders, they provide a rare opportunity for reform. The Judicial Conference Advisory Committee on Appellate Rules, which helps set the rules that govern litigation in the federal courts of appeals, should amend the Federal Rules of Appellate Procedure to prevent the misuse of administrative stays.

The rules should be amended to require that administrative stays be limited to the purpose of deciding whether to grant a stay pending appeal, and to specify that administrative stays can’t be used to grant indefinite relief. Critically, the rules should mandate that an administrative stay expire no later than the end of a limited period—say, 10 business days.

This common-sense reform will ensure administrative stays continue to serve their intended purpose, without allowing administrative stays to convert what should be the extraordinary relief of a stay pending appeal into ordinary relief available in most every case.

The case is United States v. Texas, U.S., No. 23A814, 3/19/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Will Havemann is senior associate and an appellate litigator at Hogan Lovells. He was associate general counsel at the US House of Representatives from 2019 to 2021.

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