So-Called "Administrative Stays" in Trump 2.0

Abstract

At the dawn of Trump 2.0, a novel form of emergency relief has proliferated: the so-called "administrative stay" of executive action. District courts have begun issuing this extraordinary form of relief--on their own initiative and without any consideration of the traditional emergency relief factors--to halt executive action from the get go. These so-called "administrative stays" rest on doubtful legal authority. Indeed, they are not even stays at all; they are injunctions. And since they have been issued without consideration of the traditional preliminary-injunction factors, they are almost certainly unlawful. But true administrative stays (of, say, agency action) may well be coming. These too rest on doubtful legal authority, though, especially outside the unique context of agency adjudication.

Keywords: federal courts, constitutional law, remedies, presidential powers, executive power, Administrative law