Can SCOTUS Issue An Administrative Injunction In the TikTok Case To Preserve The Status Quo?

Yesterday, I wrote about President-Elect Trump’s brief in the TikTok case, which urged the Court to “grant a stay to preserve the status quo in a case that presents novel.” Trump is not actually asking for a stay. A stay is used to put on hold a lower-court injunction. In this case, the D.C. Circuit declined to enjoin the statute. Rather, Trump is seeking some sort of injunction to provide more time for negotiations. In my post, I speculated what this sort of injunction would even look like. Would it last for a specific number of days, or could the Court issue an injunction indefinitely? Implicit in my suggestions was that the Court would issue such an injunction, without regard to the merits. In other words, this order would not turn on whether the statute violates the First Amendment.

Steve Vladeck writes that the Court could not issue an injunction without opining on the merits:

The first is that it’s asking the Court to do something that the Court … has no power to do. Without at least some view as to the constitutionality of the statute, there’s no basis for the Court to do anything to prevent the statute’s operative provisions from going into effect on January 19. . . .

The Court has no authority to block the statute solely because something that might happen on some un-specific future date could moot the constitutional questions it presents. Its authority depends upon at least an interim determination that the statute is unconstitutional. To argue for a pause without any constitutional determination is not merely to inject politics into a legal dispute; it’s to ask for the law to take a backseat to the politics altogether.

It is common enough for the Supreme Court, as well as lower courts, to enter administrative stays on the emergency docket. In the usual course, a district court enters some sort of injunction in a complex case. The appellate court, or the Supreme Court, receives an emergency motion for a stay. Without making any determination on the merits, the appellate court then enters an “administrative stay” for some limited period of time. These stays are issued without regard to the merits. Rather, they are usually justified on the grounds that the Court simply needs more time to grapple with a complex case. The stay has the effect of preserving the status quo, while an opinion is crafted, or at least while a majority is cobbled together.

To be sure, these administrative stays–especially in the Fifth Circuit–have been subject to some criticism from Justice Barrett and others. But the Court does use them. And the Court has extended these administrative stays for no other apparent reason than the Justices needed more time.

This is a slightly unusual case where Congress tries to shut down a business that has been in existence for several years. It is often unclear what exactly is the status quo. But I think most people would agree that the law going into effect on January 19 would disrupt the status quo.

If the Court can issue an administrative stay to preserve the status quo, why not issue an administrative injunction to preserve the status quo? The duration of that administrative injunction would be time-limited to facilitate the writing of a majority opinion, or to allow the political process to work its way through things. I can’t think of an example when this has been done before, but I don’t know any obvious reason why the Court could not do so.

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