Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I may have to eat crow on the lightning docket (no order in the Missouri case), but things are brewing with the thirty-country removal case.
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things → eat → case
The Solicitor General's emergency application in United States v. D.V.D. lays out the issue neatly:
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application → lay → issue
This is the third time the government has been forced to seek emergency relief from the district court's orders in this case about "third-country removals"—an essential tool to remove certain aliens, including some of the worst criminal aliens.
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government → force → aliens
This Court granted relief on both previous occasions.
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Court → grant → occasions
The latest order rests on the same fundamentally flawed legal premises as the previous rulings, and the nominal new grounds that the lower courts added to try to buttress those prior decisions are even weaker than those that failed to sustain the originals.
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that → rest → originals
Meanwhile, the equities that supported this Court's intervention (twice) have, if anything, only grown stronger in favor of the government's continued enforcement of the challenged policy.
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that → support → policy
A stay is thus once again warranted.
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stay → warrant → ?
Cf. Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) ("Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.").
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court → inform → cases
"Although the posture of the case has changed, the parties' legal arguments and relative harms generally have not.
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arguments → change → case
The same result that [this Court] reached in [June 2025] is appropriate here."
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Court → reach → June
The First Circuit had previously stayed this latest order pending appeal; the government thus has been conducting third-country removals under the challenged policy for the last 15 months.
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government → stay → months
But at 11:36 p.m. last night—without even allowing the government to respond to respondents' motion (itself filed at 8:20 p.m.)—the First Circuit abruptly dissolved the stay.
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Circuit → allow → stay
The unexpected springing-back of district court's order has, this Office is informed, created substantial logistical problems with ongoing removal operations— including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals.
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Office → inform → criminals
For example, DHS informs us that it has already canceled a flight to three separate countries carrying 70 aliens with criminal convictions (including aggravated assault and serious drug offenses), and that the cancellation has required a new round of diplomatic engagement with each of the three countries.
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cancellation → inform → countries
Those disruptions will only get worse.
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disruptions → get → ?
To halt that chaos, an immediate administrative stay should be entered while the Court considers this application.
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Court → halt → application
In light of the ongoing disruption caused by the First Circuit as well as the prior stays granted by the full Court, if the Circuit Justice enters a briefing schedule without also entering an immediate administrative stay, the government respect fully requests that its request for the immediate administrative stay be referred to the full Court.
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request → cause → Court
Circuit Justice Jackson has denied an administrative stay, and granted a four-day response time.
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Jackson → deny → time
That is leisurely compared to the 14 hours Justice Kavanaugh gave Missouri to respond.
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Kavanaugh → compare → Missouri
I think now the case is in fact referred to the full Court.
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case → think → Court
Let's see whether there are five votes for an administrative stay.
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's → let → stay
I think Justice Jackson tried to call her colleagues' bluff.
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Jackson → think → bluff
My SCOTUSBlog post on empowering the majority offered a similar remedy:
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post → empower → remedy
It is not clear how many votes are needed to take a case away from a circuit justice.
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votes → need → justice
Here, I propose a clear rule: the Refer-6.
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I → propose → rule
Six justices, at any point, can vote to refer any pending matter to the full court.
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justices → vote → court
At the latest, the Refer-6 can be invoked after the briefing is completed.
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briefing → invoke → latest
The Refer-6 can also be invoked to establish a briefing schedule.
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Refer-6 → invoke → schedule
Or the Refer-6 can be invoked as soon as an application is filed in order to enter an administrative stay.
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application → invoke → stay
Realistically, the Refer-6 can be discussed even before an emergency application is filed.
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application → discuss → ?
Usually, the clerk of the Supreme Court is given a heads-up that an emergency application is on its way.
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application → give → way
The Refer-6 can follow a Conference-3.
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Refer-6 → follow → Conference-3
At that point, the justices can informally establish a game plan, given how the case has proceeded through the lower courts.
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case → establish → courts
If six justices decide this matter belongs before the full court, the referral can happen right away.
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referral → decide → court
Of course, the circuit justice can dissent from the order being referred to the full court.
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justice → dissent → court
But the circuit justice cannot stop the referral.
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justice → stop → referral
Some of my proposals were designed to promote collegiality.
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Some → design → collegiality
The Refer-6 would have just the opposite effect.
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Refer-6 → have → effect
It would signal that the court did not want a particular circuit justice to have power over a matter.
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justice → signal → matter
But I suspect this Rubicon was already crossed in the Rhode Island case.
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Rubicon → suspect → case
…and 2 more, not listed.
The Aporia
