In its recent order regarding the constitutional standing of a Texas immigration law, the US Supreme Court exposed an increasingly troubling loophole: the misuse of the administrative stay. A seemingly arcane aspect of legal practice, the rise of administrative stays has quietly developed into an under-the-radar ordeal.
An administrative stay emerged as a procedural strategy for appellate courts to buy additional time to consider granting a full stay pending appeal. When used as intended, it provides a short-term solution to preserve the status quo during an in-depth review of the request for a stay pending appeal. This remedy is considered “extraordinary”, mandating a likelihood of success and proof of irreparable damage.
However, this tool has fallen prey to abuse, with courts increasingly using them as a means to grant indefinite relief without thoroughly resolving an underlying stay request, a corruption of its initial function. In essence, it provides parties with a stay pending appeal without the necessary evidences that warrant one.
The controversy surrounding Texas’ immigration law, permitting the apprehension of individuals suspected of unlawful presence, illustrates this issue. While the law was quickly ruled unconstitutional, the request for a stay pending appeal saw the US Court of Appeals for the Fifth Circuit granting an “administrative stay” before even weighing the plaintiff’s full response. For all intents and purposes, this afforded Texas a stay pending appeal, sans the requirement of reaching the high benchmark for such a move. The Supreme Court’s allowance of this manoeuvre has amplified concerns surrounding the misuse of administrative stays.
Justice Sonia Sotomayor, in her dissenting statement, pointed out this alarming trend, drawing attention to the Fifth Circuit’s practice of prolonging “administrative” stays. However, the Fifth Circuit is not alone; this practice has permeated throughout the judicial system.
A poignant example unfolded in the US Court of Appeals for the District of Columbia Circuit, during landmark litigation querying the legal standing of the House of Representatives to sue in a federal court to enforce a congressional subpoena against former White House Counsel Don McGahn. The District Court upheld the subpoena, only for the Court of Appeals of District of Columbia Circuit to respond with an administrative stay, which stubbornly held its place for over a year and a half, leading to a negotiated resolution only after the advent of a new administration.
While Justice Amy Coney Barrett, who had joined the majority opinion, noted that an administrative stay should only persist as long as necessary to reach an informed decision on the motion for a stay pending appeal, the issue remains. With delay often being a critical factor in high-stakes appellate litigation, this misuse of administrative stays must be addressed.
These instances of abuse point towards a dire need for reform, presenting an opportunity for the Judicial Conference Advisory Committee on Appellate Rules to amend the Federal Rules of Appellate Procedure to limit the misuse of administrative stays. A prospective amendment should specify that administrative stays cannot be used to grant indefinite relief and should expire after a maximum specified period, ideally 10 business days.
This simple, yet crucial reform will help ensure that an administrative stay continues to serve its real purpose, avoiding any undue delay or circumvention of the standard procedure to grant what should be an extraordinary relief but has lately become fairly commonplace.
This issue was most recently highlighted in the case of United States v. Texas: