190. SNAP WTF?

A very quick explainer on why Justice Jackson issued an "administrative stay" in the SNAP case late on Friday night, and on what's likely to happen next

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I wanted to put out a very brief post to try to provide a bit of context for Justice Jackson’s single-justice order, handed down shortly after 9 p.m. EST on Friday night, that imposed an “administrative stay” of a district court order that would’ve required the Trump administration to use various contingency funds to pay out critical benefits under the Supplemental Nutrition Assistance Program (SNAP).

It may surprise folks that Justice Jackson, who has been one of the most vocal critics of the Court’s behavior on emergency applications from the Trump administration, acquiesced in even a temporary pause of the district court’s ruling in this case. But as I read the order, which says a lot more than a typical “administrative stay” from the Court, Jackson was stuck between a rock and a hard place—given the incredibly compressed timing that was created by the circumstances of the case.

In a world in which Justice Jackson either knew or suspected that at least five of the justices would grant temporary relief to the Trump administration if she didn’t, the way she structured the stay means that she was able to try to control the timing of the Supreme Court’s (forthcoming) review—and to create pressure for it to happen faster than it otherwise might have. In other words, it’s a compromise—one with which not everyone will agree, but which strikes me as eminently defensible under these unique (and, let’s be clear, maddening and entirely f-ing avoidable) circumstances.

I. How We Got Here

Everyone agrees that, among the many increasingly painful results of the government shutdown, the U.S. Department of Agriculture (USDA) can no longer spend the funds Congress appropriated to cover SNAP—a program that helps to fund food purchases for one in eight (42 million!) Americans. Everyone also agrees that there are other sources of appropriated money that the President has the statutory authority to rely upon to at least partially fund SNAP benefits for the month of November. The two questions that have provoked the most legal debate is whether (1) he has the authority to fully fund SNAP; and (2) either way, whether federal courts can order him to use whatever authorities he has.

The dispute in the case that reached the Supreme Court on Friday involves a lawsuit that asked a federal court in Rhode Island to order the USDA first to partially fund SNAP for November, and then, as circumstances unfolded, to fully fund it. Having already ordered the USDA to do the former, yesterday, Judge McConnell issued a TRO ordering it to do the latter (to fully fund SNAP for November)—and to do so by the end of the day today.

Even as the President seemed to be giving inconsistent public statements about what the federal government was going to do, the Justice Department appealed Judge McConnell’s ruling to the First Circuit—and also sought a stay of that ruling pending appeal. And given the urgency of the timing, it asked the First Circuit to issue an “administrative stay”—a temporary pause while the court of appeals decided whether to issue a more indefinite stay for the duration of the government’s appeal. (For a longer explainer of the difference between an “administrative” stay and a stay pending appeal, see this post.)

With the First Circuit not having ruled on the administrative stay by late Friday afternoon, the Justice Department went to the Supreme Court for both of the types of relief it had sought from the First Circuit—a stay pending appeal and an administrative stay while the Court considered the former. Shortly after that filing, at 6:08 p.m. ET, the First Circuit publicly declined to enter an administrative stay—issuing a two-page order explaining why. As the order concluded, “The government’s motion for a stay pending appeal remains pending, and we intend to issue a decision on that motion as quickly as possible.”

That kicked the ball squarely into the Supreme Court’s … court (sorry; it’s late).

II. Why It Was Justice Jackson’s Problem

All emergency applications are filed in the first instance with the “Circuit Justice” assigned to that particular court of appeals/geographic area. For the Boston-based First Circuit, that’s Justice Jackson. And with one equivocal exception, every “administrative” stay of which I’m aware has come from the Circuit Justice, not the full Court. Thus, the onus was on Justice Jackson to either enter the administrative stay herself, or risk being overruled by the full Court.

In an order circulated to the Court’s press corps at 9:17 p.m. ET, Jackson issued the administrative stay sought by the Trump administration. But her order says a lot more than the typical administrative stay—which usually contains nothing other than boilerplate. As Jackson wrote, “Given the First Circuit’s representations, an administrative stay is required to facilitate the First Circuit’s expeditious resolution of the pending stay motion.” Thus, she stayed the two orders from Judge McConnell “pending disposition of the motion for a stay pending appeal” in the First Circuit, “or further order of Justice Jackson or of the Court.” And as the order concludes, “This administrative stay will terminate forty-eight hours after the First Circuit’s resolution of the pending motion, which the First Circuit is expected to issue with dispatch.”

The first thing to say about this order is that I’ve never seen anything quite like it before. Circuit Justices don’t usually explain administrative stays, and certainly not with this much detail about the timing. Here, Justice Jackson is clearly telling the First Circuit to hustle—a message I am sure the court of appeals will receive and act upon.

As for why Justice Jackson did it, to me, the clue is the last sentence. Had Jackson refused to issue an administrative stay, it’s entirely possible (indeed, she may already have known) that a majority of her colleagues were ready to do it themselves. I still think that this is what happened back in April when the full Court intervened shortly before 1 a.m., without explaining why Justice Alito hadn’t, in the A.A.R.P. Alien Enemies Act case. And from Jackson’s perspective, an administrative stay from the full Court would’ve been worse—almost certainly because it would have been open-ended (that is, it would not have had a deadline). The upshot would’ve been that Judge McConnell’s order could’ve remained frozen indefinitely while the full Court took its time. Yesterday’s grant of a stay in Trump v. Orr, for instance, came 48 days after the Justice Department first sought emergency relief.

Instead, by keeping the case for herself and granting the same relief, in contrast, Justice Jackson was able to directly influence the timing in both the First Circuit and the Supreme Court, at least for now. She nudged the First Circuit (which I expect to rule by the end of the weekend, Monday at the latest); and, assuming that court rules against the Trump administration, she also tied her colleagues’ hands—by having her administrative stay expire 48 hours after the First Circuit rules. Of course, the full Court can extend the administrative stay (and Jackson can do it herself). But this way, at least, she’s putting pressure on everyone—the First Circuit and the full Court—to move very quickly in deciding whether or not Judge McConnell’s orders should be allowed to go into effect. From where I’m sitting, that’s why Justice Jackson, the most vocal critic among the justices of the Court’s behavior in Trump-related emergency applications, ruled herself here—rather than allowing the full Court to overrule her. It drastically increases the odds of the full Supreme Court resolving this issue by the end of next week—one way or the other.

I am, of course, just speculating. But if so, I think it’s both a savvy move from Justice Jackson and a pretty powerful rejoinder to the increasingly noisy (and ugly) criticisms of her behavior from the right. Given the gravity of this issue, it makes all the sense in the world for a justice in Jackson’s position to do whatever she could to ensure that the underlying question (must the USDA fully fund SNAP for November?) is resolved as quickly as possible—even if that first means pausing Judge McConnell’s rulings for a couple of days. If the alternative was a longer pause of McConnell’s rulings, then this was the least-worst alternative, at least for now. And regardless, imposing this compromise herself, rather than forcing her colleagues to overrule her, is, to me, a sign of a justice who takes her institutional responsibilities quite seriously, indeed—even when they lead away from the result she might otherwise have preferred if it were entirely up to her.

III. What Comes Next?

Before turning to what happens now in the courts, it’s worth reminding everyone of what should be an obvious point: The Trump administration does not appear to need a court order in order to pay out November SNAP benefits; it could simply … choose to do so. All of this would, of course, go away if that were to happen. Indeed, for as much as the Friday night emergency was caused by the artificial timing crunch created by the lower courts, the real crisis here was caused by the Republican-controlled Congress in the first instance for shutting down the federal government; and by the President in the second instance for not doing all he could to keep the SNAP funds flowing through the shutdown. Let’s not lose sight of the forest for the trees.

But assuming that we won’t see that kind of beneficence from President Trump or institutional responsibility from Congress, all eyes will shift back to the First Circuit—from which I’d expect a ruling on the stay pending appeal as early as Saturday, but certainly by Monday or Tuesday. At that point, especially if the First Circuit refuses to issue a stay pending appeal, the Justice Department will surely go right back to the Supreme Court—which will have 48 hours to either rule on a stay pending appeal, or, at the very least, to extend Justice Jackson’s administrative stay.

All of this is, of course, no way to run a railroad. We should be doing everything we possibly can to feed those who can’t afford to do so themselves—and the fact that this is even a matter of debate is an incredibly dispiriting sign of the times. But as someone who thinks President Trump is already breaking various laws in how he’s spending money during the government shutdown (including, e.g., to pay the troops), I think the legal issues presented in this case are sufficiently complicated so as to justify appellate judges and Supreme Court justices taking at least time enough to get their heads around the relevant facts and legal authorities.

It may be that, by this time next week, the full Court will have granted a stay pending appeal in ways that might be worthy of critique. But I, for one, find Justice Jackson’s behavior Friday night entirely understandable and defensible, even if I wish like hell it hadn’t come to this.

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Either way, we’ll be back Monday (or, at this rate, tomorrow morning) with more coverage of the Supreme Court. Until then, I hope you’re all doing what you can to stay safe out there—and to help those in your communities who lack the means to feed themselves.