Two emergency applications seeking to put especially cruel Trump administration immigration policies back into effect are a referendum on the judicial role—and on the emergency docket, in particular.
Thank you for the article, Steve. I saw the news late Sunday evening where this information concerning the case , the government asked for a temporary stay! At least I hope that is the correct term, that was used by MS Now or CNN.? These courts have been the guardian rails against this case, and this administration. I believe that the Senate refused again and will be voting on a budget for DHS. People are tired of the fact of these killings. They should be prosecuted, for several deaths. Another migrant died from sepsis, because he was refused dental care for an infection with his tooth according to the Left Hook. If you like independent media and an understanding of the law please subscribe to One First.
The Supreme Court’s rulings in the TPS cases are surely among the most appalling in their demonstration of most Justices’ indifference to the foreseeable – and moreover well documented and ongoing - consequences of the cruelty and brutality of the federal government’s actions for hundreds of thousands if not millions of US residents. Not only are the animus and bad faith of the President, and former DHS (now Shield Bearer of the Americas) Secretary towards selected nationalities and ethnicities well publicized and not hidden, but so are their ignorance and incompetence. I am not sure if I should be more concerned and fearful of their vindictiveness than of their mind-blowing stupidity and ineptitude as forces that are destroying the fabric and assets of US society and the strenghts, and values of our polity, in addition to undermining the rule of law. To cite one example from the realm of foreign policy blunders, putting critical negotiations in the hands of someone like Mr. Witkoff (or “Witsoff”) who negotiated with Russians including Putin without his own Russian interpreter, and with Iranians without an American expert in nuclear weapons design and construction, sets a new high in incompetence. He takes the prize ahead of the then British Brexit Secretary Dominic Raab who said, shortly before he resigned in 2018, that he "hadn't quite understood the full extent" of UK trade reliance on the Dover-Calais crossing.
As I have been learning about the lamentable history of the Roberts Court pre- and during the Trump era thanks to Professor Vladeck, I have become alert to other examples of the harm its decisions have triggered. One example is its role in unleashing the torrent of online sports gambling in the US, after it overturned the 1992 Professional and Amateur Sports Professional Act (Paspa) in 2018. Justice Alito wrote the majority opinion. Were the harmful knock-on effects, such as addiction and financial ruin, of the subsequent meteoric and increasingly untrammeled rise in online sports gambling predictable – including now the rise of prediction markets? Even if they were, would the Court have reached the same decision, perhaps arguing that people should be free to spend their money or go into debt however they wish, regardless of public safety and health concerns?
Meanwhile, extending the renaming of established institutions and government Departments and Agencies to conform to the President's agenda (such as the Department of War(mongering)) I offer: EPA - Enviornmental Pollution Agency; DHS - Department of Hostile Supervision; FCC - False Communications Commission; OMB : Office of Muddle and Blunder..
Professor - Thank you once again for the insightful column but also thanks for your recent visit and talk at the University of New Mexico School of Law. We appreciate you making the effort to visit our campus and provide your thoughts to our community.
To me, it's always ridiculous that DHS can argue that a country is safe for return when the State Department has Travel Advisories, including Level 4 or "DO NOT TRAVEL" that covers the nations listed. I think Estoppel should be used more frequently to prevent a President from both claiming a country is safe enough to return to as a civilian and a country is so dangerous a hell-hole that no sane person should travel there under any circumstances. (EDIT: If there is a "Unitary Executive" in reality, not theory, the "Unitary Executive" is making two separate and contradictory claims through separate channel, hence "estoppel" should apply.)
It reminds me of Senator McCain trying to claim Iraq by taking a stroll...while wearing a flak jacket, wearing a combat helmet, with Blackhawk air support, a platoon of Special Forces escorts with Humvees, plus the assorted on-call specialists for extra protection.
I agree with you that the S Ct should explain its shadow docket decisions AND those case-specific rulings should not be considered precedential. Am gratified to see federal judges standing up to the Court.
On a separate issue - I just read Abbe R. Gluck's DRAFT manuscript for Harv Law Rev "The End of Ambiguity (in Statutory Interpretation)" -- very informative and glad to see her doing this work. Barrett's idea that justices should interpret statutes as "ordinary people" might (imo) is not persuasive. Canons of interpretation (again, imo) are in disarray! Hope you'll write about this topic in the future.
I read some of Abbe R. Gluck's manuscript. I have no legal training, but I found it interesting.
I have a peripherally related question. Has anyone ever suggested that Congress do something to try to minimize ambiguities in laws when they're unintentional, and perhaps to say explicitly when they're intentionally leaving ambiguities in place? That might dramatically cut back the Supreme Court's workload.
For example, in Pulsifer v. United States (1), the Court got into a discussion of Eric Carle's children's book "The Very Hungry Caterpillar" as part of their debate about the semantics of a particular law, while the defendant was waiting to find out just how many years he'd have to spend in prison. I doubt that the ambiguity was intentional in this case, and Congress could easily have anticipated such debates and phrased the law in a way that would have made it unambiguous. Mathematicians and computer programmers developed ways of avoiding such basic ambiguities; why can't Congress? (The most obvious response is: "Congress? Are you joking?")
Another example is the 2024 case Fischer v. United States (2), which hinged on the interpretation of the phrase "otherwise obstructs ... any official proceeding" in a particular law. Congress could have avoided this particular ambiguity with an additional remark or two.
Great idea but ... ambiguity is not easy to define ("has never been rigorously defined in the caselaw," according to Gluck, 2026, p. 4); I guess it's one of those things that "[you] know it when you see it." (J Stewart, Jacobellis v Ohio, 378 U.S. 184, 197 (1964)).
As Gluck points out, sometimes ambiguity is the source of the debate, while, at other times, plain meaning provides an opening.
Take the example of NFIB v Sebelius, 567 U.S. 519, 563 (Roberts, CJ). (Gluck discusses the case on p. 19 of her draft manuscript.) The natural (unambiguous) meaning of the ACA's insurance-purchase mandate was to impose a penalty on Americans for NOT BUYING health insurance; i.e., under threat of a monetary penalty, to force some individuals into a commercial market to buy something they did not want. Using the natural reading, the mandate was unconstitutional (at 563). To avoid an unconstitutional result, Roberts introduced an alternate reading -- i.e., Congress used the term "penalty" but Congress really meant "tax." The mandate was constitutional after all.
I agree with you, but I still think that Congress could try harder to avoid the kind of language that leads to the Supreme Court debates I mentioned. If they meant the "otherwise obstructs ..." phrase to be taken generically, at face value, they could have said so. If they instead meant it to only apply within the overall context of the law in question, they could have said that. There will always be gray areas, but it seems that they often arise because of imprecise language in laws.
For the law in the Pulsifer case, it would have been even easier to avoid ambiguity. Congress could have said either "If all of the following are false" or "If one or more of the following is false", depending on what their intention was. Or they could more generally establish some syntactical conventions for use in such laws, as is done in high school algebra and computer programming languages. I know that's asking a lot, but maybe they could have a committee that reviews laws for obvious examples of this kind. A pipe dream, I know.
Thanks for the code. Superb column. I may be dense, but one thing on my mind re all these "emergency" applications is what, if any, standard exists for what IS an emergency that would justify prompt and apparently unexplained action by the Court. Most of what I have read suggests that the Government offers little in support of some urgent damage that might occur unless the Court intervenes?
One of the central issues in these cases is the Court repeatedly granting emergency relief in cases in which there is no good argument of "irreparable" harm, which is supposed to be what separates "emergencies" from everything else.
If you're suggesting that an "emergency" for purposes of these expedited petitions should require "irreparable harm", I think that is a suitable standard but perhaps not strict enough. I'd assume that the plaintiffs in these cases, especially the TPS cases, were able to establish that as a justification for the lower court orders, as is required for prompt injunctive relief. And I'd assume, perhaps wrongly, that the govenment in those proceedings challenged the plaintiffs' assertions as well as making some sort of presentation of its own attempting to show serious harm it would suffer. Given my assumptions, wouldn't it be clear that there has already been a reasoned determination on irreparable harm and that in effect, the government already has failed to demonstrate an emergency?
A related point: What possible "irreparable harm" could exist from an order permitting an independent agency head to retain his or her position pending litigation over the validity of an executive order of removal for no cause?
I've written quite a bit about how the Court is no longer properly balancing the equities in these cases, so the short answer is that I agree with you. But these ships have, alas, largely sailed.
Finally the Court appears to have balanced the equities in a sensible way by rejecting the government's emergency request to be able to deport 100s of thousands of Haitians, Venezuelans and Syrians to dangerous places pending litigation. Of course, also expediting the cases and depriving the appellate courts of jurisdiction.
Steve, thank you so much for your TPS piece. You made it crystal clear how this isn’t just about paperwork and deadlines—it’s about whether courts will actually treat Trump’s openly racist comments and obvious bias as a serious legal problem, instead of pretending they don’t matter.
The Republican Supreme Court justices will probably say that the determination of which countries are "shithole countries" concerns international affairs and national security, and is therefore a political question beyond the scope of the Court's authority.
Thank you for the article, Steve. I saw the news late Sunday evening where this information concerning the case , the government asked for a temporary stay! At least I hope that is the correct term, that was used by MS Now or CNN.? These courts have been the guardian rails against this case, and this administration. I believe that the Senate refused again and will be voting on a budget for DHS. People are tired of the fact of these killings. They should be prosecuted, for several deaths. Another migrant died from sepsis, because he was refused dental care for an infection with his tooth according to the Left Hook. If you like independent media and an understanding of the law please subscribe to One First.
The Supreme Court’s rulings in the TPS cases are surely among the most appalling in their demonstration of most Justices’ indifference to the foreseeable – and moreover well documented and ongoing - consequences of the cruelty and brutality of the federal government’s actions for hundreds of thousands if not millions of US residents. Not only are the animus and bad faith of the President, and former DHS (now Shield Bearer of the Americas) Secretary towards selected nationalities and ethnicities well publicized and not hidden, but so are their ignorance and incompetence. I am not sure if I should be more concerned and fearful of their vindictiveness than of their mind-blowing stupidity and ineptitude as forces that are destroying the fabric and assets of US society and the strenghts, and values of our polity, in addition to undermining the rule of law. To cite one example from the realm of foreign policy blunders, putting critical negotiations in the hands of someone like Mr. Witkoff (or “Witsoff”) who negotiated with Russians including Putin without his own Russian interpreter, and with Iranians without an American expert in nuclear weapons design and construction, sets a new high in incompetence. He takes the prize ahead of the then British Brexit Secretary Dominic Raab who said, shortly before he resigned in 2018, that he "hadn't quite understood the full extent" of UK trade reliance on the Dover-Calais crossing.
As I have been learning about the lamentable history of the Roberts Court pre- and during the Trump era thanks to Professor Vladeck, I have become alert to other examples of the harm its decisions have triggered. One example is its role in unleashing the torrent of online sports gambling in the US, after it overturned the 1992 Professional and Amateur Sports Professional Act (Paspa) in 2018. Justice Alito wrote the majority opinion. Were the harmful knock-on effects, such as addiction and financial ruin, of the subsequent meteoric and increasingly untrammeled rise in online sports gambling predictable – including now the rise of prediction markets? Even if they were, would the Court have reached the same decision, perhaps arguing that people should be free to spend their money or go into debt however they wish, regardless of public safety and health concerns?
Meanwhile, extending the renaming of established institutions and government Departments and Agencies to conform to the President's agenda (such as the Department of War(mongering)) I offer: EPA - Enviornmental Pollution Agency; DHS - Department of Hostile Supervision; FCC - False Communications Commission; OMB : Office of Muddle and Blunder..
that 2018 opinion was a 7-2 opinion actually.
So, there’s no use crying over filled milk?
So grateful for your work!
One has to hope that in confirmation hearings on Mullin this topic comes up repeatedly. He will almost surely stand with the Noem/Trump position.
How does Solicitor General make these flimsy arguments? Will courts not just write scathing opinions but also make disciplinary referrals?
Professor - Thank you once again for the insightful column but also thanks for your recent visit and talk at the University of New Mexico School of Law. We appreciate you making the effort to visit our campus and provide your thoughts to our community.
To me, it's always ridiculous that DHS can argue that a country is safe for return when the State Department has Travel Advisories, including Level 4 or "DO NOT TRAVEL" that covers the nations listed. I think Estoppel should be used more frequently to prevent a President from both claiming a country is safe enough to return to as a civilian and a country is so dangerous a hell-hole that no sane person should travel there under any circumstances. (EDIT: If there is a "Unitary Executive" in reality, not theory, the "Unitary Executive" is making two separate and contradictory claims through separate channel, hence "estoppel" should apply.)
It reminds me of Senator McCain trying to claim Iraq by taking a stroll...while wearing a flak jacket, wearing a combat helmet, with Blackhawk air support, a platoon of Special Forces escorts with Humvees, plus the assorted on-call specialists for extra protection.
I agree with you that the S Ct should explain its shadow docket decisions AND those case-specific rulings should not be considered precedential. Am gratified to see federal judges standing up to the Court.
On a separate issue - I just read Abbe R. Gluck's DRAFT manuscript for Harv Law Rev "The End of Ambiguity (in Statutory Interpretation)" -- very informative and glad to see her doing this work. Barrett's idea that justices should interpret statutes as "ordinary people" might (imo) is not persuasive. Canons of interpretation (again, imo) are in disarray! Hope you'll write about this topic in the future.
I read some of Abbe R. Gluck's manuscript. I have no legal training, but I found it interesting.
I have a peripherally related question. Has anyone ever suggested that Congress do something to try to minimize ambiguities in laws when they're unintentional, and perhaps to say explicitly when they're intentionally leaving ambiguities in place? That might dramatically cut back the Supreme Court's workload.
For example, in Pulsifer v. United States (1), the Court got into a discussion of Eric Carle's children's book "The Very Hungry Caterpillar" as part of their debate about the semantics of a particular law, while the defendant was waiting to find out just how many years he'd have to spend in prison. I doubt that the ambiguity was intentional in this case, and Congress could easily have anticipated such debates and phrased the law in a way that would have made it unambiguous. Mathematicians and computer programmers developed ways of avoiding such basic ambiguities; why can't Congress? (The most obvious response is: "Congress? Are you joking?")
Another example is the 2024 case Fischer v. United States (2), which hinged on the interpretation of the phrase "otherwise obstructs ... any official proceeding" in a particular law. Congress could have avoided this particular ambiguity with an additional remark or two.
[1] https://www.supremecourt.gov/opinions/23pdf/22-340_3e04.pdf
[2] https://www.supremecourt.gov/opinions/23pdf/23-5572_l6hn.pdf
Great idea but ... ambiguity is not easy to define ("has never been rigorously defined in the caselaw," according to Gluck, 2026, p. 4); I guess it's one of those things that "[you] know it when you see it." (J Stewart, Jacobellis v Ohio, 378 U.S. 184, 197 (1964)).
As Gluck points out, sometimes ambiguity is the source of the debate, while, at other times, plain meaning provides an opening.
Take the example of NFIB v Sebelius, 567 U.S. 519, 563 (Roberts, CJ). (Gluck discusses the case on p. 19 of her draft manuscript.) The natural (unambiguous) meaning of the ACA's insurance-purchase mandate was to impose a penalty on Americans for NOT BUYING health insurance; i.e., under threat of a monetary penalty, to force some individuals into a commercial market to buy something they did not want. Using the natural reading, the mandate was unconstitutional (at 563). To avoid an unconstitutional result, Roberts introduced an alternate reading -- i.e., Congress used the term "penalty" but Congress really meant "tax." The mandate was constitutional after all.
I agree with you, but I still think that Congress could try harder to avoid the kind of language that leads to the Supreme Court debates I mentioned. If they meant the "otherwise obstructs ..." phrase to be taken generically, at face value, they could have said so. If they instead meant it to only apply within the overall context of the law in question, they could have said that. There will always be gray areas, but it seems that they often arise because of imprecise language in laws.
For the law in the Pulsifer case, it would have been even easier to avoid ambiguity. Congress could have said either "If all of the following are false" or "If one or more of the following is false", depending on what their intention was. Or they could more generally establish some syntactical conventions for use in such laws, as is done in high school algebra and computer programming languages. I know that's asking a lot, but maybe they could have a committee that reviews laws for obvious examples of this kind. A pipe dream, I know.
Thanks for the code. Superb column. I may be dense, but one thing on my mind re all these "emergency" applications is what, if any, standard exists for what IS an emergency that would justify prompt and apparently unexplained action by the Court. Most of what I have read suggests that the Government offers little in support of some urgent damage that might occur unless the Court intervenes?
One of the central issues in these cases is the Court repeatedly granting emergency relief in cases in which there is no good argument of "irreparable" harm, which is supposed to be what separates "emergencies" from everything else.
See, e.g.: https://www.stevevladeck.com/p/173-justice-kavanaugh-and-the-equities
If you're suggesting that an "emergency" for purposes of these expedited petitions should require "irreparable harm", I think that is a suitable standard but perhaps not strict enough. I'd assume that the plaintiffs in these cases, especially the TPS cases, were able to establish that as a justification for the lower court orders, as is required for prompt injunctive relief. And I'd assume, perhaps wrongly, that the govenment in those proceedings challenged the plaintiffs' assertions as well as making some sort of presentation of its own attempting to show serious harm it would suffer. Given my assumptions, wouldn't it be clear that there has already been a reasoned determination on irreparable harm and that in effect, the government already has failed to demonstrate an emergency?
A related point: What possible "irreparable harm" could exist from an order permitting an independent agency head to retain his or her position pending litigation over the validity of an executive order of removal for no cause?
I've written quite a bit about how the Court is no longer properly balancing the equities in these cases, so the short answer is that I agree with you. But these ships have, alas, largely sailed.
Thank you.
Finally the Court appears to have balanced the equities in a sensible way by rejecting the government's emergency request to be able to deport 100s of thousands of Haitians, Venezuelans and Syrians to dangerous places pending litigation. Of course, also expediting the cases and depriving the appellate courts of jurisdiction.
Steve, thank you so much for your TPS piece. You made it crystal clear how this isn’t just about paperwork and deadlines—it’s about whether courts will actually treat Trump’s openly racist comments and obvious bias as a serious legal problem, instead of pretending they don’t matter.
The Republican Supreme Court justices will probably say that the determination of which countries are "shithole countries" concerns international affairs and national security, and is therefore a political question beyond the scope of the Court's authority.
I think I'm learning how this game is played.
Treason threats require a real Declaration of War!
Only Congress can Declare War!
Trump cannot ask anyone for anything; he can only DEMAND!
Asking implies respect!
Trump has no respect for anything of real and lasting value -like principle, like faith, like HONOR,like sacrifice, like love!
Therefore, Trump is no more than an empty bell and a clanging garbage carnage pail lid.
Please do not desecrate Saint Patrick’s Day!
Beannachtai na La Fheile Padraig oraibh
☘️☘️☘️☘️☘️☘️☘️☘️☘️
There’s a student Note in the Harvard Law Review around 1973 or 74 on 4 Justice majorities.