The Supreme Court‘s emergency docket has not slowed down over the summer, with the Trump administration waiting on four requests for emergency relief, even as the justices have been away from Washington, D.C.
While the Trump administration’s win in June’s Trump v. CASA decision to limit universal injunctions was thought to provide a way to slow down the avalanche of cases hitting the emergency docket, as the Supreme Court prepares to return for its upcoming term, the justices are still facing a cavalcade of requests from the administration.
Trump administration waiting on four emergency relief requests
The various petitions the Justice Department has filed to the Supreme Court’s emergency docket over the past several weeks range from issues such as passport sex markings to foreign aid funds.
The Trump administration asked the justices to pause an order forcing it to spend $4 billion in congressionally approved foreign aid after a lower court ruled the administration was unlawfully impounding funds via a “pocket recision.” Chief Justice John Roberts has granted an administrative stay pausing the lower court’s order, but the full court is still weighing whether to grant a firmer stay.
Another request from the administration filed earlier this month came with the case of the firing of Federal Reserve governor Lisa Cook, with the Justice Department asking the Supreme Court to allow her to be fired while the case proceeds in lower courts.
Late last week, the administration filed two new requests on the high court’s emergency docket. The first request asks the justices to allow the administration to enforce its policy limiting the sex listed on a passport to a person’s biological sex, rather than the gender a person identifies with. The second petition asks the Supreme Court to allow the administration to end temporary protected status for Venezuelans, after the high court had done so earlier this year. The TPS case marks the latest example of an issue reappearing on the emergency docket in recent months after lower court judges find ways around the justices’ emergency rulings.
Returning issue to the high court’s emergency docket pushes it to take FTC firing case early
Two of the cases recently filed to the Supreme Court’s emergency docket involve issues that have already been before the justices. The case regarding President Donald Trump’s firing of a Democrat-appointed Federal Trade Commissioner was the third time the issue of firing independent agency heads had come on the emergency docket since May.
The Justice Department’s petition, which sought emergency action allowing FTC commissioner Rebecca Slaughter to be fired pending litigation, included a strong plea for the justices to take up the case before it fully made its way through lower courts. On Monday, the high court agreed to take up the case while also allowing Slaughter to be fired in the interim, in line with their previous emergency orders.
Lower courts continued to point to the Supreme Court’s 1935 ruling in Humphrey’s Executor v. United States, which found that then-President Franklin Delano Roosevelt could not fire an FTC commissioner at his discretion and could only fire him “for cause,” as outlined in the law passed by Congress authorizing the creation of the FTC, in ruling going against the Supreme Court’s recent emergency docket orders allowing for the firings.
Carrie Severino, president of the conservative advocacy group Judicial Crisis Network, told the Washington Examiner that clearer emergency docket orders can help stop issues from returning to the docket, while commending the justices for taking up the FTC firing case.
“What it’s going to take to halt those ones is a clearer decision from the Court on Humphrey’s Executor, so it’s good to see the Court will be considering that case on the merits,” Severino said.
“Taking up the FTC challenge was smart, because if you don’t directly confront it, it’s going to continue to be a zombie case, like Lemon or Chevron,” she added, citing previous Supreme Court opinions which led to later fractured rulings from lower courts.
With the same issues appearing repeatedly on the emergency docket, such as the independent agency firings, it could require the high court to take up the case on a merits argument before it has made its way through lower courts to resolve the recurring issue.
Universal injunction ruling has had limited effect on the emergency docket load
The Supreme Court’s June ruling in Trump v. CASA significantly limited the ability of lower courts to issue universal injunctions. While the ruling was intended to limit lower courts’ ability to issue sweeping relief, courts have found other ways to issue similar relief, and the Supreme Court’s emergency docket has remained busy.
Severino believes the CASA ruling was “addressing one part of” the issue with lower court actions and noted that the “emergency docket is a broader problem than just the problem of universal injunctions.”
“I do think it has made an impact. I think you might have seen more egregious behavior from the lower courts if they had not ruled the way they did in CASA,” Severino said of the Supreme Court’s June decision.
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“That said, [lower courts] have found other ways to issue crazy rulings on the emergency docket. The challenge is, universal injunctions are not the only issue here,” she added.
While the Supreme Court’s emergency docket remains busier than usual, the justices will return to D.C. for their new term soon to hear oral arguments in a full slate of cases. The high court’s new term begins Oct. 6 and will continue through the end of June with oral arguments and decisions.
