After my last post, co-blogger Will Baude and another reader asked offline whether perhaps the word “interior” was doing work in Justice Kavanaugh’s footnote in Trump v. Illinois as a way to distinguish the seeming inconsistency between what he said there and his earlier discussion of the permissibility of relying on race in immigration stops in Noem v. Perdomo. 

First, as a reminder, what Justice Kavanaugh said in Perdomo:

To be clear, apparent ethnicity alone cannot furnish reasonable suspicion [for an immigration stop]; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors. [quoting United States v. Brignoni-Ponce, 422 U. S. 873, 887 (1975)].

Second, what he said in Trump v. Illinois (with the key word in bold): 

The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”). This application does not require us to delve into the parties’ underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.

Is it possible that Justice Kavanaugh meant to suggest that the principle he announced in Perdomo only applies in non-“interior” contexts—presumably, areas near the border? A few thoughts.

First, Justice Kavanaugh’s statement in Perdomo does not contain any qualification suggesting he intended to limit the broad language there to non-“interior” areas. 

But would such a distinction draw support in Fourth Amendment case law? The answer is quite possibly yes. The case that Justice Kavanaugh cited in Perdomo for the proposition that race can be a “relevant factor” in immigration stops, United States v. Brignoni-Ponce, explicitly considered the scope of “the United States Border Patrol’s authority to stop automobiles in areas near the Mexican border.” And that case explored factors that “may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area.”

Next, could that distinction help cabin what Justice Kavanaugh said on the facts of Perdomo itself? Maybe? The “border area” in Brignoni-Ponce was “a fixed checkpoint on Interstate Highway 5 south of San Clemente.” San Clemente itself is about 74 miles from the San Ysidro border crossing. Los Angeles is a little less than twice as far from the border—about 134 miles from the border crossing. So maybe you could argue that, to the extent that Brignoni-Ponce establishes a border-only rule, that rule would extend another hour-plus up Interstate 5 to cover Perdomo too—and that outside of the “border” context, authorities can’t rely on race at all in conducting stops.

Maybe, though I’m not sure that the distinction works on the facts of Trump v. Illinois. How might we define “interior” versus “border”? One place to start is immigration law. I’m not an immigration expert, but as I understand it: immigration law gives immigration authorities the power, among others, to “within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle,” and DHS has interpreted “reasonable distance from any external boundary” to mean “within 100 air miles from any external boundary of the United States.” That includes Los Angeles, but it also includes Chicago (given its proximity to Canada). So it’s at least arguable that Chicago is no more “interior” immigration-wise than LA is (although there may be far more illegal border crossings on the Southern border). 

Moreover, if Justice Kavanaugh wanted to put forward that somewhat narrower view about the power to consider race in the Fourth Amendment/immigration context why not just. . . say so in Trump v. Illinois? It would be easy for him to have included a “see” or even “cf.” citation with a parenthetical quote from Brignoni–Ponce like the ones I offer above. 

Instead, he cf.’ed to Whren v. United States, which is a Fourth Amendment case that most people read (critically) as saying that racial profiling doesn’t violate the Fourth Amendment at all, even if it might violate the Equal Protection Clause. (“We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.”). 

Justice Kavanaugh is a careful writer, so presumably he included the word “interior” for a reason. But I’m still left puzzled. 

This highlights an ever-present tension in the Court’s interim rulings. Unexplained decisions are frustrating for parties, lower courts, and the public. But the more the justices write, on a tight timeline, the more questions and confusion they can create, which is frustrating too. 

This essay is cross-posted at Executive Functions.

President Trump federalized the Illinois and Texas National Guard to protect federal personnel and property in and around Chicago. He relied on 10 U. S. C. §12406(3), which authorizes Guard federalization if the president is “unable with the regular forces to execute the laws of the United States.” A federal district court enjoined the deployment, which the Supreme Court yesterday declined to stay.

The Court ruled that the term “regular forces” in §12406(3) likely refers to the regular military. To call into service the Guard under §12406(3), therefore, the president must show that he is “‘unable’ with the regular military” to execute U.S. law. Justice Kavanaugh noted in concurrence that this ruling might have sufficed to deny the stay since Trump made no such determination.

But the Court went further. It reasoned that because the Posse Comitatus Act bars military law enforcement absent express authorization, the President must identify a statutory or constitutional authority for the regular military to execute the laws—and then show inability to do so—before federalizing the Guard under § 12406(3). The government’s failure to meet that burden, the Court said, justified denying the stay.

Some thoughts on the decision, ordered from the particular and narrow to the broader implications for domestic military deployment:

1. As Dan Epps noted, the Court took its time in ruling on this application for an interim order. It did not treat the matter as an “emergency.”

2. The district court had adopted the central interpretation of “regular forces” that ultimately persuaded the Court. But Illinois and other respondents did not defend that interpretation on appeal until the Supreme Court called for additional briefing that was almost certainly sparked by this forceful amicus brief by Marty Lederman.

3. The Court’s order ruled on the “likely” outcome of novel and difficult questions of federal law without oral argument or regular briefing. This is now a standard feature of the interim orders docket. But it has been much criticized by many commentators who will support the Court’s order, and by Justices who joined the order. Likewise, some of the dissenting Justices’ process objections did not bother them in other interim order contexts.

The lesson: process complaints about interim orders are often influenced by, and subordinate to, interim order outcomes. This doesn’t mean the process complaints are meaningless. It just means they are often opportunistic. Every justice agrees, when the merits pull is strong enough, that brief and largely conclusory interim orders appropriately issue, even in important cases, on the basis of truncated briefing and deliberation and without oral argument.

4. I agree with Justice Kavanaugh that the Court’s interpretation of “unable” involved a “complicated and debatable statutory analysis.” (It was more complicated than I let on in my summary above, and I’m not sure of the right answer.) As Justice Gorsuch noted in dissent, the Court “has never decided a case about the meaning of § 12406(3), let alone explored its interaction with other statutes in the field or the Constitution.” Justice Gorsuch also noted the Court did not “have much help on many of these matters from the parties’ briefs before us.”

Why, therefore, didn’t the Court, as Justice Kavanaugh suggested, seek further briefing, hold oral argument, or grant certiorari before judgment? Who knows. Every aspect of the interim orders process—timing of decision, standards for decision, the questions to answer, the robustness of briefing, whether to have oral argument or grant certiorari, the form of the order, guidance on remand, and more—is discretion-laden.

5. Because the Court’s interim orders have vertical precedential effect, yesterday’s order should end the government’s § 12406(3) national guard call-up not just in Illinois but in California and Oregon too. In that sense it is a major defeat for the Trump administration. But yesterday’s decision does not mean that Trump is out of options for domestic military deployment. Rather, as I wrote in October, he “has other more powerful legal authorities to deploy the Guard and regular armed forces in the domestic sphere”—options that the Court in yesterday’s order left open.

One option, I wrote earlier, is the “protective power”:

The protective power is the president’s inherent or independent Article II power to protect federal personnel, property, and functions. The key point is that the president can assert the protective power without reliance on Section 12406. He can deploy regular armed forces without any need to federalize the Guard. Presidents often have.

William Rehnquist, then head of the Office of Legal Counsel, wrote the leading executive branch opinion on the protective power in 1971. As Chris Mirasola explains in his outstanding definitive treatment of the issue, the protective power has a long pedigree in practice but an uncertain basis in Article II and Supreme Court case law. If the president relied on Article II alone to use regular armed forces for the protective function, it is hard to know what the Supreme Court would say about its validity or about the deference due to the president.

The Court discussed the protective power in yesterday’s order but did not take a view on it. If the government calls out the regular military to perform protective functions, we might get a first-ever Supreme Court ruling—at least since the nineteenth century decisions on which the government has long but precariously relied—on the nature and scope of the protective power.

A second and seemingly stronger option for Trump is to invoke the Insurrection Act, which authorizes the president to use the National Guard or the regular military in the domestic sphere in wide-ranging contexts, including (simplifying a great deal) as the president “considers necessary” to enforce federal law against unlawful “obstructions,” “combinations” or “assemblages” or to quell any “domestic violence” or “conspiracy” that impedes the enforcement of constitutional rights or even “the course of justice” under federal law.

The Insurrection Act provides the president with a number of potential advantages over federalizing the Guard under § 12406(3).

First, it authorizes deployment of the regular military in addition to the Guard. Second, its broadly worded triggers give the president wide discretion for its use. Third, a deployment under the Act skirts the Posse Comitatus Act bar by providing express authorization for the armed forces to engage in domestic law enforcement. Fourth, that enforcement authority is more robust than the protective power and applies beyond the immigration context as long as one of the Act’s vague predicates is met. Fifth, old precedents suggest that should give deference to the president’s determination that the Act’s predicates are met.

6. Yesterday’s defeat could provide “cover” for the Trump administration to go the Insurrection Act route. The central rationale for the Court’s order was that the government had not met its burden of demonstrating an affirmative authorization to use the regular military to enforce the law. Invocation of one of the Insurrection Act predicates would meet that burden. It would not be right for the administration to say “the Court made us do it”; but one can imagine the administration saying something like that nonetheless.

I do not mean to suggest that the administration will invariably win if it invokes the Insurrection Act. That depends on the facts on the ground and a slew of open questions under the Act and, possibly, the Constitution. Justice Gorsuch noted in dissent the “grave[]” question “[w]hen, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution? See, e.g., Art. IV, §4; Amdt. 14, §5.” (emphasis supplied).

Nor do I predict that the administration will in fact invoke the Insurrection Act. Doing so brings some legal advantages but is politically very fraught at a time when the administration is encountering greater political headwinds. It might try the Article II regular military protective power gambit first the next time it claims to need to protect ICE facilities and functions.

Earlier today, the court issued its long-awaited ruling in Trump v. Illinois, denying the government’s application for a stay of the district court’s order barring the President from deploying the National Guard in Chicago. A few quick reactions: 

1. The court really took its time to rule on this one. The application was fully briefed (including the supplemental briefing the court requested on the meaning of “regular forces”) was complete on November 17—more than a month ago. The majority opinion, such as it is, is quite short—barely 3 pages. Justice Kavanaugh’s concurrence in the judgment is 7 pages; Justice Alito’s dissent is 16 pages; Justice Gorsuch’s dissent is 2 pages. None of those opinions should obviously have taken a month to craft, and the court often issues interim docket rulings with even lengthier dissents much, much more quickly. Here, because the court denied the stay, there was less urgency to get the ruling out, but it nonetheless seems like a long time. There’s no way to know, but I wonder if there was something odd at work—a decisive Justice waffling or even changing votes?

2. Justice Kavanaugh’s footnote 4 of his concurrence in the judgment is a bit puzzling. He goes out of his way to note:

The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”). This application does not require us to delve into the parties’ underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.

This footnote is a little hard to square with his concurrence in Noem v. Vasquez Perdomo, where he said the following: 

To be clear, apparent ethnicity alone cannot furnish reasonable suspicion [for an immigration stop]; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.

I suppose the two statements are reconcilable if one interprets “based on” as “based on alone,” but in my view a more natural sense of that phrase is that a decision is “based on” a fact if that fact is a relevant (and perhaps decisive) factor in the decision. 

Given the criticism Justice Kavanaugh’s opinion in Perdomo received—and the critics’ coinage of the derisive term “Kavanaugh Stops”—I wonder if this footnote (which I don’t think was strictly necessary to include) was an attempt to walk back his opinion in that case a tiny bit. Justice Kavanaugh seems more interested than other justices in using his opinions to speak to potential critics (which I actually find admirable) and that impulse may be playing a role here. 

3. Justice Alito hammers the majority for disregarding the normal principle of “party presentation”—the basic idea that courts should only rule on arguments actually raised by the parties. (Interestingly, that point was reinforced in a summary reversal with no noted dissents barely a month ago, an opinion that Justice Alito cites front-and-center in his dissent.) There’s something to be said for that principle as a general matter where a case implicates the rights of only the actual parties; it’s perhaps reasonable to say that, in a habeas corpus case, a court shouldn’t rummage for arguments that the petitioner didn’t come up with and the government had no chance to respond to.

But courts generally have some discretion to consider arguments not raised at least in some contexts. And when the Supreme Court is ruling on a decision of this magnitude that affects many people who are not parties to the case, there’s a good case that it makes more sense to get the issue right regardless of what the parties argued. Moreover, in that situation, the court can (and did here!) request additional briefing, ameliorating unfairness concerns about springing a new issue on a litigant without providing an opportunity to respond. Indeed, in its merits cases, the court regularly appoints amici to argue positions that no party has advanced—presumably because the court recognizes that what matters is getting the issue right, rather than letting the outcome depend on the happenstance of what a particular litigant argued. And while Justice Gorsuch notes that he would have preferred to leave “weighty questions . . . for another case where they are properly preserved and can receive the full airing they so clearly deserve,” the court already decides major questions on the interim docket with no more airing (and in a much greater rush) than the “regular forces” argument received here.

4. This is extremely trivial and frankly pedantic, but are Justice Alito’s uses of double emphasis the first use of that stylistic choice in a SCOTUS opinion? I have to confess that on this score I’m a traditionalist and I do not approve. 

5. Congrats to co-blogger Jack for receiving a lengthy footnote in Justice Kavanaugh’s opinion relying on one of Jack’s posts on his Substack, Executive Functions.

It looks like we have our first significant interim docket ruling since the launch of this blog, the denial of a stay, without noted dissent, in Margolin v. National Association of Immigration Judges. I do not think we can read too much into this denial, especially since it is “without prejudice to a reapplication if the District Court commences discovery proceedings before the disposition of the Government’s forthcoming petition for a writ of certiorari,” which might lead to a de facto stay of discovery below.

Still, the denial is notable for two reasons. First, given the Solicitor General’s track record of successes on the interim docket in recent months, any denial is notable.

Second, the reason for the denial: “At this stage, the Government has not demonstrated that it will suffer irreparable harm without a stay.” In the past few years, it had seemed like the Court was edging closer and closer to suggesting that the Government always could show irreparable harm almost automatically, building and building off of the old in-chambers statement that “[A]ny time a State is enjoined by a  court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Perhaps the Court is moving back to assessing irreparable harm with more nuance and precision, as it should.

Again, we should not read too much into such a brief and tentative disposition, but the issue of irreparable harm to the government is one to watch this term.

I’m excited to be part of the team kicking off the new Interim Docket Blog. For those who are new to tracking the Supreme Court’s work on the “interim docket,” you should read Jack’s inaugural post explaining what the interim docket is, and why we should call it that rather than the “shadow docket” or the “emergency docket.”  

In my kickoff post, I’d like to suggest something worth keeping in mind when you encounter someone criticizing the Court for its work on this docket, whatever one calls it.

To explain, I’m going to rely on the classic film Annie Hall (which I did on a Divided Argument episode recently).  At the beginning of the movie, Woody Allen begins with a classic Borscht Belt joke that he uses as a metaphor for life:

There’s an old joke. Two elderly women are at a Catskill mountain resort, and one of ’em says, “Boy, the food at this place is really terrible.” The other one says, “Yeah, I know; and such small portions.” Well, that’s essentially how I feel about life: full of loneliness, and misery, and suffering, and unhappiness, and it’s all over much too quickly.

I think this captures something important about current debates over the interim docket—particularly, criticism that tends to use the ominous “shadow docket” label. The Court gets a lot of flak for how it uses the interim docket procedurally: It acts too quickly and provides insufficient explanations of why it’s doing what it’s doing. Call this the “small portions” problem. At the same time, many critics strongly dislike the substance of what the Court is doing via interim orders—what you can think of as the “terrible food” problem.

What’s important to see is that, much like the elderly women’s restaurant review, there’s a certain schizophrenia to these criticisms. People don’t like the decisions the Court is making, and want the Court to offer longer and more thorough explanations of those decisions. Now, one can believe both critiques simultaneously. If the Court is doing things that are substantively problematic, maybe it owes us all more of an explanation when it does so. And I believe both are true in some instances—there are things the Court is doing that deeply trouble me and cause real-world harm, and I’m also troubled by the Court’s seeming flippancy in doing some of those things on a rushed timeline with little or no explanation.

It’s also possible that there’s a direct relationship between the two problems. As Steve Vladeck notes in pushing back on the “interim docket” label, often the Court’s interim rulings are effectively, if not formally, final—such as where the Court stops a lower court from staying a deportation order. Perhaps in some such cases, having to go through the full process of briefing, oral argument, and a lengthy opinion might actually lead the Court to decide an important issue differently. I’m somewhat skeptical that this would happen much, if at all, but it’s a reasonable argument.  

But sometimes “shadow docket” criticism may be more grounded in substantive, not procedural, disagreements with what the Court is doing. When the Court inevitably overturns Humphrey’s Executor in the Slaughter case, it’s going to get roundly criticized. And the fact that the Court previously granted a stay on the interim docket allowing the President to remove Rebecca Slaughter from the FTC, in violation of statutory law, will not figure prominently in those criticisms.

The lesson is that when you read or hear criticisms of the Court’s interim orders, ask what you see as the problem: substance, procedure, or both (or neither). If the Court were being slower and more deliberate, would the Court’s decision be equally problematic? Or is there a particularly distinct procedural problem that makes the “shadow docket” criticism especially apt in a particular case?

Welcome to the Interim Docket Blog, where Will Baude, Dan Epps, I, and surely others, will comment on Supreme Court interim orders and related matters.

An interim order is a non-final judicial decision that determines which party’s position controls in the interim between the filing of a lawsuit and its final resolution. That sounds boring and technical—and it is. But interim orders are where much of the action has been at the Supreme Court this year and for the last decade.

Consider executive power. The Court has a few important presidential powers cases on its merits docket. But it has issued dozens of interim orders this year related to presidential power, the vast majority of which the Trump administration has won.  (Many of the wins did not turn on the scope of presidential power but rather ruled that executive action was being challenged in the wrong venue or by the wrong plaintiffs; but these rulings have supercharged the administration’s efforts to incapacitate the bureaucracy nonetheless.) 

Interim orders are not decisions on the merits. But they can be hugely consequential.  Continuing with the presidency example, they determine whether an executive branch program can operate, or not, during the months or years it takes for final resolution of a case.  They often indicate the Justices’ views of the merits and thus preview how the case will eventually be decided. Sometimes they resolve an issue finally as a practical matter.  And they can exert a magnifying stare decisis influence on lower federal courts despite typically containing very little explanation.

In short, interim orders—especially but not exclusively for issues of executive power—have emerged as a track parallel to merits decisions for the practical resolution of important federal questions. Yet interim orders tend to be harder to understand than merits decisions due to the paucity of explanation, the technical rules that govern their issuance, and their underlying complexity.  

When a plaintiff challenges a presidential executive order, for example, it typically seeks an injunction in the district court. If the court grants the injunction, the government typically asks the court of appeals to “stay” it—that is, to suspend the order’s enforceability. If the court of appeals grants the stay, the plaintiff can ask the Supreme Court to vacate the stay; if it declines to grant it, the government may ask the Court to do so. Many other sequences can occur—for example, the district court denies injunctive relief, the court of appeals grants it, and the Supreme Court then stays the injunction.

One aim of this blog is to make interim orders more accessible and to situate them in the larger context of the Court’s work.

A final word on terminology.  Interim orders are sometimes referred to as “emergency” orders.  I explained in a recent essay why I thought this was misleading:

The “emergency” label, which connotes an urgent need for decision, misleads. Applicants sometimes characterize a request for a stay or injunction as an “emergency.” But often they do not. The tests for granting or vacating a stay or injunction do not fluctuate depending on how quickly the parties claim to need resolution. And the Court is under no compulsion to resolve the applications quickly. Sometimes it does, but often it takes a long time.

An example of the Court taking its time: The Solicitor General applied for a stay of the Illinois federal court’s National Guard injunction on October 17.  After receiving an initial set of responses, Justice Barrett requested a round of supplemental briefing on October 29.  That briefing closed on November 17.  And as of this posting, still no decision—though it should come any day.