Because KBJ Denied Administrative Stay in Third-Country Removal Case, The Application Should Be Referred To The Full Court Now

I may have to eat crow on the lightning docket (no order in the Missouri case), but things are brewing with the thirty-country removal case. The Solicitor General’s emergency application in United States v. D.V.D. lays out the issue neatly:

This is the third time the government has been forced to seek emergency relief from the district court’s orders in this case about “third-country removals”—an essential tool to remove certain aliens, including some of the worst criminal aliens. This Court granted relief on both previous occasions. The latest order rests on the same fundamentally flawed legal premises as the previous rulings, and the nominal new grounds that the lower courts added to try to buttress those prior decisions are even weaker than those that failed to sustain the originals. Meanwhile, the equities that supported this Court’s intervention (twice) have, if anything, only grown stronger in favor of the government’s continued enforcement of the challenged policy. A stay is thus once again warranted. Cf. Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) (“Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.”). “Although the posture of the case has changed, the parties’ legal arguments and relative harms generally have not. The same result that [this Court] reached in [June 2025] is appropriate here.” Noem v. National TPS Alliance, 146 S. Ct. 23, 24 (2025).

An immediate administrative stay is particularly critical. The First Circuit had previously stayed this latest order pending appeal; the government thus has been conducting third-country removals under the challenged policy for the last 15 months. But at 11:36 p.m. last night—without even allowing the government to respond to respondents’ motion (itself filed at 8:20 p.m.)—the First Circuit abruptly dissolved the stay. The unexpected springing-back of district court’s order has, this Office is informed, created substantial logistical problems with ongoing removal operations— including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals. For example, DHS informs us that it has already canceled a flight to three separate countries carrying 70 aliens with criminal convictions (including aggravated assault and serious drug offenses), and that the cancellation has required a new round of diplomatic engagement with each of the three countries. Those disruptions will only get worse. To halt that chaos, an immediate administrative stay should be entered while the Court considers this application. In light of the ongoing disruption caused by the First Circuit as well as the prior stays granted by the full Court, if the Circuit Justice enters a briefing schedule without also entering an immediate administrative stay, the government respect fully requests that its request for the immediate administrative stay be referred to the full Court. Cf. Rollins v. Rhode Island State Council of Churches, 146 S. Ct. 402 (2025) (No. 25A539); A.A.R.P. v. Trump, 145 S. Ct. 1034 (2025) (No. 24A1007).

Circuit Justice Jackson has denied an administrative stay, and granted a four-day response time. That is leisurely compared to the 14 hours Justice Kavanaugh gave Missouri to respond.

I think now the case is in fact referred to the full Court. Let’s see whether there are five votes for an administrative stay. I think Justice Jackson tried to call her colleagues’ bluff.

My SCOTUSBlog post on empowering the majority offered a similar remedy:

It is not clear how many votes are needed to take a case away from a circuit justice. Here, I propose a clear rule: the Refer-6. Six justices, at any point, can vote to refer any pending matter to the full court. At the latest, the Refer-6 can be invoked after the briefing is completed. The Refer-6 can also be invoked to establish a briefing schedule. Or the Refer-6 can be invoked as soon as an application is filed in order to enter an administrative stay.

Realistically, the Refer-6 can be discussed even before an emergency application is filed. Usually, the clerk of the Supreme Court is given a heads-up that an emergency application is on its way. The Refer-6 can follow a Conference-3. At that point, the justices can informally establish a game plan, given how the case has proceeded through the lower courts. If six justices decide this matter belongs before the full court, the referral can happen right away. Of course, the circuit justice can dissent from the order being referred to the full court. But the circuit justice cannot stop the referral.

Some of my proposals were designed to promote collegiality. The Refer-6 would have just the opposite effect. It would signal that the court did not want a particular circuit justice to have power over a matter. But I suspect this Rubicon was already crossed in the Rhode Island case. Jackson perhaps tried to do too much in her capacity as circuit justice, and her colleagues apparently countermanded her.

Justice Jackson makes the case for unilateral SCOTUS reform.