In the manner of a drunk teenager with a hand on a light switch, the Supreme Court has spent the past few days turning federal immigration law in Texas on and off, on and off, while making mewling noises about whether it was on or off when the party started.along the usual lines on Tuesday afternoon, the Supreme Court allowed S.B. 4—Texas’ stunning usurpation of federal immigration law—to take effect.
does not typically look at mere administrative stays due to their fleeting and informal nature; it prefers to wait for a formal stay before jumping in. So the 5Circuit has begun to call its most controversial stays “administrative” in a brazen bid to insulate them from probing Supreme Court review.Circuit’s administrative stay “an exercise of its docket-management authority,” declaring that
should not “get into the business” of reviewing “a short-lived prelude to the main event.” In other words, because the 5to describe its stay, Barrett refused to consider whether S.B. 4 should be kept on ice while the merits are reviewed. She simply rubber-stamped the 5Circuit’s stay, rewarding its shameless gamesmanship.
allowed to take effect in the dark of night, without any reasoned analysis—after the 5Circuit froze a district court’s injunction with an administrative stay. (In her opinion on Tuesday, BarrettCircuit and applied its usual standards to the stay, Sotomayor correctly noted, it would have no choice but to halt S.B. 4. When you tot up the balance of alleged irreparable harms here, it isn’t even a close call.
to block S.B. 4 immediately.Reading the Barrett and Sotomayor opinions side by side, there is a bit less of a delta than you might assume. What’s strange about Barrett’s opinion is that she clearly recognizes the 5Circuit’s bad behavior, yet suspends any appropriate response for the time being. A cynic might think Barrett knows S.B. 4 is obviously unconstitutional but wants to punish the Biden administration for its allegedly lax border enforcement by letting the law kick in for a few weeks.
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