Please click here to opt in to receive via email the Executive Functions Morning Roundup, brief summaries of news developments and commentary related to executive power delivered to your inbox each weekday morning and once on the weekend.
Last month I said on X: “To state the very obvious: The Supreme Court's emergency orders rulings will determine the fate of a large chunk of the short-term success or failure of the Trump 2.0 program.” This is starting to happen.
On February 21 the Court “held in abeyance” a Trump administration request to vacate a federal district court’s order that forced the government to keep Office of Special Counsel (OSC) head Hampton Dellinger in office despite his firing by President Donald Trump. And as of this writing the Court has before it an application by the Trump administration to vacate a federal district court order directing the administration to make foreign aid payments; on February 26, Chief Justice Roberts temporarily paused the order pending further action by the Chief Justice or the Court.
If that sounds technical and confusing, it is because it is. But it is also important, because the outcome of these still-unresolved emergency applications will determine for weeks and possibly months or even years whether Dellinger can remain as OSC head and whether the Trump administration can curb foreign aid payments.
Below I try to explain how emergency orders work and why they are important. Later this week I will offer thoughts on the challenges the Court faces with Trump 2.0 emergency orders. Warning for the wise: The following simplified discussion skips over important details and complications about emergency orders. A guide to further reading is included at the end.
A Typical Case and the Standard Dilemma
Imagine that the Trump administration issues a new executive order or engages in some other action. It might, for example, fire Dellinger as head of OSC or end executive branch recognition of birthright citizenship.
An injured plaintiff sues in a federal district court (the trial court) and claims that the order or action is illegal—she alleges, perhaps, that it violates the Constitution. The plaintiff also asks for a remedy. Typically the most important remedy sought in this context is an injunction to stop the allegedly illegal action. An injunction might order the Trump administration to reinstate Dellinger (as the district court did) or to process birthright citizenship claims.
This is the very beginning of the case, but it is also a crucial point in the case. It ordinarily takes years for a challenge to a presidential action to be adjudicated in federal district court, and then appealed to the court of appeals, and then appealed to the Supreme Court, should it agree in its discretion to hear the case. Only once the Supreme Court accepts review and decides the case, or denies review, do we know with judicial certainty if the action is lawful.
But what should the state of play be in that interim, years-long period? Should the Trump administration order continue in force until the Supreme Court decides the case, or should the order be enjoined until the Court decides? If the Trump order remains in place during the years until final judgment but is determined to be illegal in the end, the plaintiff and the nation will have suffered through years of illegal action. But if the order is put on ice for years and is deemed lawful in the end, the legitimate actions of the elected president will have been thwarted for years (and, therefore, for much of his term).
This in a nutshell is the dilemma that emergency orders seek to resolve.
Injunctive Relief
The first-level question in the hypothetical is whether to enjoin or not to enjoin the presidential action. An injunction, the Supreme Court once explained, is “a means by which a court tells someone what to do or not to do.” Injunctions come in different stripes, depending on when they are issued and how long they last.
A temporary restraining order (TRO) is sought at the outset of a case and is basically an emergency brake to stop an alleged harmful act from materializing. A court typically issues or denies a TRO on the basis of initial documents filed in court, without a hearing. If granted in the hypothetical, a TRO provides very short-term relief from the government action.
A preliminary injunction is an order that typically issues (if at all) after a hearing and the introduction of a bit of evidence. It tends to stay in place longer—often until the case is finally resolved.
A permanent injunction, if issued, is typically part of a final order at the end of a case.
What is usually at stake in emergency relief is a TRO or a preliminary injunction. The test for these forms of injunctive relief is basically the same. As the Supreme Court stated in a case involving a preliminary injunction, a plaintiff must “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”
The first factor—likelihood of success on the merits—tends to be the most important in practice. One explanation why is that if a court believes the government is ultimately likely to win the case (i.e. prevail on the legality of its action), it makes little sense to stop the government from carrying out its directive for years while the court system sorts out the merits with greater certainty. Similarly, if a court is pretty sure the government will ultimately lose the case, it makes little sense to allow the government to engage in probably illegal action for years while the matter is being sorted out with certainty.
The first factor also tends to be the most important because the other three factors are often hard to sort out with certitude. As Justice Kavanaugh once explained: “[N]ot infrequently—especially with important new laws—the harms and equities are very weighty on both sides. In those cases, this Court has little choice but to decide the emergency application by assessing likelihood of success on the merits.”
There are many counterpoints to these arguments and the other injunctive relief factors are often relevant. One counterpoint is that courts typically must decide the likelihood of success on the merits quickly, based on incomplete facts, without full legal briefing, and with truncated procedures. These deficiencies make it less likely that the court gets the merits of the case right at the preliminary stage compared to after all the evidence and legal briefing have been considered.
A final note on injunctions. In recent years it has become typical for a district court to issue a “universal” injunction that binds the government everywhere and prohibits enforcement of the challenged governmental order or action against non-parties as well as parties. This means that a single district court judge anywhere in the country can issue an injunction that shuts down a government program.
Stays
The second-level question in the hypothetical is whether to “stay” an injunction issued by the district court. A stay (setting aside complications) is an order that stops a judicial action—in our example, an injunction—pending appeal. Sometimes a district court will stay its own injunction pending appeal. Sometimes it will not, in which case the party subject to the injunction may seek a stay in the court of appeals or, if it loses there, in the Supreme Court.
The test when an appellate court is asked to stay an injunction issued by a lower court is similar to the test for injunctive relief. Once again, likelihood of success on the merits predominates.
There are many possible combinations of injunctions and stays in response to government action. Here are a few standard ones:
A district court issues an injunction; the court of appeals stays injunctive relief; the Supreme Court vacates the stay or declines to do so.
A district court issues an injunction; the court of appeals declines to stay injunctive relief; the Supreme Court issues a stay or declines to do so.
A district court declines to issue an injunction; the losing party asks the court of appeals to issue one; if it declines to do so the losing party asks the Supreme Court to issue it; if the court of appeals issues injunctive relief the losing party asks the Supreme Court to stay the issuance of injunctive relief.
There are other combinations, but these give a sense of the range of possibilities.
A final detail. There is something called an “administrative stay.” This is a stay that an appellate court issues without much if any consideration of the merits or the equities in order to stop legal proceedings below long enough to assess whether the merits, the equities, etc. warrant an actual stay of the lower court proceedings. Administrative stays have become controversial in recent years because courts of appeals have used them to delay proceedings for a very long time (see Justice Barrett’s concurrence) and because district courts have issued them inappropriately to stop executive rather than judicial action.
The Rise and Reform of Emergency Orders at the Court
Emergency orders are issued at every level of the federal judiciary, but the Supreme Court sits atop the federal court system and controls it as the final word on such orders. In the last decade it has issued more consequential emergency orders than in the previous several decades. The reasons why include a rise in district court universal injunctions against government action and the spike in emergency orders requests related to COVID and voting rights litigation. Another reason is that as the Court has granted emergency relief more readily, litigants have sought it more frequently.
This has created problems for the Court. More and more of its docket and its time have shifted from addressing cases after full litigation and appellate review towards addressing emergency orders. Emergency orders decisions are often more prone to controversy than merits decisions because the standards for emergency relief are so open ended and judicial discretion is so wide; the explanations for decision tend to be curt; the consequences of decision are so large; and the outcome is driven so often, even within extant doctrine, by mere predictions about the merits that generally correlate with ideology.
The Court has been widely criticized for the lack of principle guiding its emergency orders. In the last five years or so it has taken steps to address the criticisms. These steps include a higher bar for emergency relief, greater input and more deliberation before issuance of emergency relief (including fuller briefing and oral argument), and more elaborate explanations for emergency relief. Justice Kavanaugh recently explained that in responding to important emergency order requests, the Court “should use as many tools as feasible and appropriate to make the most informed and best decision,” including “taking more time (if available), ordering supplemental briefing, … inviting amicus briefs[,] … [hearing] oral argument or … grant[ing] certiorari before judgment.”
A Selective Guide to Emergency Orders Readings
Later this week I will build on this primer to offer reflections on how to think about the Court’s role in resolving emergency orders issues in Trump 2.0. For now, I close with a reading list on emergency orders for those who want to go deeper than the relatively superficial discussion above.
Justice Kavanaugh’s concurrence in Labrador v. Poe is a good introduction to the dilemmas of emergency decisionmaking. Nken v. Holder is an important but confusing Supreme Court ruling in this area.
For a technical legal introduction to the law governing emergency orders, consider Chapter III, Section 4, of Hart & Wechsler’s The Federal Courts and the Federal System (which I had a hand in writing).
SCOTUSblog has a valuable Emergency Docket Tracker.
Will Baude coined the phrase “Shadow Docket”—a clever moniker for the emergency order docket and related matters—in this groundbreaking article. He often writes about emergency orders at The Volokh Conspiracy and has great discussions about them with Dan Epps on their podcast, Divided Argument. Josh Blackman also writes informatively about emergency orders on Volokh, as does Richard Re at Re’s Judicata.
For an outstanding, accessible, and opinionated account of the emergency orders docket, read Steve Vladeck’s The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Vladeck’s Substack newsletter, One First, is an excellent source for emergency orders analysis, as are his social media posts (same with Baude (X, Bluesky), Blackman, and Re (X, Bluesky)).
There are many terrific law review articles about emergency orders. With sincere apologies to those I forgot, and ignoring other articles by people mentioned above, I have learned a lot from Rachel Bayefsky, Sam Bray, Trevor McFadden and Vetan Kapoor, Portia Pedro, Edward Pickup and Hannah Templin, and these two student Notes.