Wake Forest Law Review

By Andie Anderson

In December of 2019, Time Magazine made a teenage girl the Person of the Year.[1] As a fifteen-year-old, Greta Thunberg began skipping school and standing outside of the Swedish Parliament with homemade signs calling for urgent action on climate change.[2] Within just eighteen months, Greta’s activism would gain international attention and she would go on to eventually address the world in the 2019 United Nations Climate Action Summit.[3]

Punctuated by moments of highly emotional charges, Greta’s speech ignited a global surge in support of greenhouse gas regulation. Greta would go on to meet with the Pope, spar with the President of the United States, and inspire a global strike against climate change.[4] Young people around the world followed her example and began taking action within their own communities. In 2019, a group of twenty-one American high school students filed suit against the federal government, asking for immediate action on climate change and greenhouse gas regulation.[5]

The students’ suit presents an important question under American law. In the face of an executive branch who refuses to acknowledge the reality of climate change, what role can the courts play to advance regulation of greenhouse gases and mitigate temperature increase?

The Supreme Court has previously allowed suits against the federal government over greenhouse gases and climate change. In Massachusetts v. EPA, a group of states, local governments, and environmental actors brought suit against the Environmental Protection Agency (EPA), alleging it acted arbitrarily in denying a petition for rulemaking.[6] In October of 1999, fifteen organizations filed a rulemaking petition to the EPA, asking it to regulate greenhouse gases.[7] Fifteen months later, the EPA requested public comment on the petition for rulemaking.[8] Two years after the comment period, and despite the EPA issuing a report that human generated greenhouse gases caused global temperate increases, the EPA denied the rulemaking petition.[9] In its denial, the EPA explained that regulating carbon dioxide and other greenhouse gases was unwise considering the charged political nature of the decision.[10] The petitioners brought suit against the EPA, arguing it failed to give a statutorily required reasoned basis for its decision to decline rulemaking.[11]

The EPA challenged the standing of the individual plaintiffs to bring suit.[12] The EPA argued that under the modern Constitutional standing rule, a plaintiff must show that they suffered “a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.”[13] Under the doctrine of Constitutional standing, the harm must be individualized.[14] Individuals who are merely vindicating the public’s general interest in the proper administration of the law do not have standing to sue.[15]

The EPA argued that, because the harm of global warming and its failure to act “inflicted widespread harm” and not individual harm, the plaintiffs could not have standing.[16] The Supreme Court disagreed. The Supreme Court pointed out that the Administrative Procedures Act (APA) authorized lawsuits against agencies without the need to meet the “normal standards for redressability and immediacy.”[17] Instead, Congress authorized statutory standing to those that bring a “challenge the rejection of its rulemaking petition as arbitrary and capricious.”[18] The Supreme Court held that because the APA authorized a lawsuit for the EPA’s failure give a reasoned basis for its refusal to promulgate a rule on carbon dioxide, the plaintiffs had standing to sue.[19]

The result of the Massachusetts decision was a remand to the EPA for further proceedings.[20] If the agency wanted to decline the petition for rulemaking, it would need to provide a reasoned basis as required by the APA. However, by the time the Supreme Court issued its decision, Obama won the presidency and took office. Compared to the previous administration’s hostility towards climate change,[21] this new administration was willing to embrace scientific evidence of human activity in temperature increase and regulate relevant gases.[22] On remand, the Obama-era EPA began procedures to promulgate a rule regulating carbon dioxide emissions.[23]

When President Trump took office in 2017, the United States again re-entrenched itself in climate change denial.[24] The Sabin Center for Climate Change Law tracks Trump administration actions on climate change in a Climate Deregulation Tracker.[25] To date, the current administration has taken over 130 actions de-regulating greenhouse gases.[26]

In this climate era, twenty-one students filed a lawsuit against the President, his cabinet, and the EPA, asking for action on climate change.[27] The high schoolers charged the federal government with intentionally encouraging the consumption of fossil fuels and the production of greenhouse gases, despite knowing of the risks of global warming.[28] The appellate court described the scientific record submitted by plaintiffs as “extensive” and leaving “little basis for denying that climate change is occurring at an increasingly rapid pace” as a result of human activity.[29] The teenagers claimed that the federal government’s contribution to climate change violated their due process rights, the right to equal protection under the law, rights under the Ninth Amendment, and the public trust doctrine.[30] The high schoolers sought for declaratory and injunctive relief, asking the court to order to government to implement a plan phasing out all fossil fuel emissions and drawing down excess atmospheric greenhouse gases.[31]

The Ninth Circuit reluctantly concluded that injunctive relief was beyond its constitutional power to grant because the plaintiffs lacked standing to sue.[32] Unlike the plaintiffs in Massachusetts, the students in Juliana did not bring a challenge under the APA. Thus, in order to obtain injunctive relief, the students needed to meet the more rigorous standards of injury and redressability under Constitutional standing.[33] The court found that plaintiffs met the injury requirement of standing by pleading personal and particularized injuries.[34] One plaintiff had to leave her home in the Navajo reservation because of water scarcity, another had to leave her home because of persistent coastal flooding.[35] However, plaintiffs’ claim failed as to court redressability.[36] For the sake of standing analysis, the court assumed that there was a substantive right to “a climate system capable of sustaining life.”[37] Because enjoining the government would prevent it “from exercising [its] discretionary authority granted by congress,” court intervention would pose a substantial interreference with the co-equal political branches of the government.[38] In the end, affirmative action to address climate change presented a political question, and was not within the authority of the judicial branch to resolve.[39]

Massachusetts and Juliana teach a valuable lesson on the role of courts in in the climate change fight. Massachusetts is proof that courts may be a vehicle to propel federal action. However, even if a healthy climate is a substantive right, the method for achieving it is a political question. Thus, as Juliana teaches, any successful lawsuit must not rest on the violation of a substantive right, but procedural one. In the future, activists should watch federal agencies closely, stay involved in the development and repeal of regulation, and bring suit under the provisions of the APA.


[1] Charlotte Alter, Suyin Haynes, & Justin Worland, Time 2019 Person of the Year: Greta Thunberg, Time, https://time.com/person-of-the-year-2019-greta-thunberg/.

[2] Id.

[3] Id.

[4] Id.

[5] Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).

[6] Id. 549 U.S. 497 (2007).

[7] Id. at 510.

[8] Id. at 511.

[9] Id. (citing 68 Fed. Reg. 52922 (Sept. 8, 2003)).

[10] 68 Fed. Reg. at 52929–31. Note, the EPA also argued that, despite its previous stance on the interpretation of the Clean Air Act, the act did not actually included carbon dioxide and other greenhouse gases. Massachusetts, 549 U.S. at 511. The court ultimately found against EPA on this matter, and held that the statute did authorize to EPA to regulate greenhouse gases. Id. at 528.

[11] Id.at 514.

[12] Id. at 517.

[13] Id.

[14] Id. at 516.

[15] Id. at 516–17.

[16] Id. at 517.

[17] Id. at 517–18 (citing U.S.C. § 7607(b)).

[18] Id. at 520 (citing U.S.C. § 7607(b)(1)).

[19] Id. at 518.

[20] Id. at 535.

[21] Andrew Grice, Bush to G8: ‘Goodbye from the Worlds Biggest Polluter’, Independent (July 10, 2008), https://www.independent.co.uk/news/world/politics/bush-to-g8-goodbye-from-the-worlds-biggest-polluter-863911.html.

[22] The Record, Climate, The White House, President Barack Obama (last visited Feb.18, 2020), https://obamawhitehouse.archives.gov/the-record/climate.

[23] 74 Fed. Reg. 66496 (Dec. 15, 2009).

[24] See, e.g., Helier Cheung, What Does Trump Actually Believe About Climate Change?, BBC News (Jan. 23, 2020), https://www.bbc.com/news/world-us-canada-51213003.

[25] Climate Deregulation Tracker, Columbia Law School (last updated Jan. 16, 2020), https://climate.law.columbia.edu/climate-deregulation-tracker.

[26] Id.

[27] Juliana, 947 F.3d at 1165.

[28] Id. at 1166–67.

[29] Id. at 1166.

[30] Id. at 1165.

[31] Id.

[32] Id.

[33] Id. at 1168.

[34] Id.

[35] Id.

[36] Id. at 1169.

[37] Id.

[38] Id. at 1170–72.

[39] Id. at 1173.

By Olivia Rojas

On November 5, 2018, the United States Department of Justice filed a petition for writ of certiorari before judgment from the Supreme Court of the United States asking the court to review three cases from different circuits relating to the Deferred Action for Childhood Arrivals program (“DACA”).[1] These cases, DHS v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal (collectively “Consolidated Cases”), directly addressed the validity of the Trump Administration’s attempt to halt DACA, and in June of 2019, the Court granted certiorari.[2]

On November 12, 2019, the Court heard oral arguments regarding the future of DACA. In reviewing the Consolidated Cases, the Court is asked to analyze two questions (1) whether the “phasing out” of the DACA program is eligible for judicial review in the first place and (2) whether the termination of the DACA program is legal.[3]

In June of 2012, former Secretary of Homeland Security Janet Napolitano submitted plans for an administrative program which would allow a select group of undocumented individuals who were born outside of the United States but immigrated as juveniles, to apply for deferred action.[4]  These individuals have since been referred to as Dreamers.[5] Deferred action refers to the ability of a federal immigration judge or an agent with the United States Citizenship and Immigration Service to postpone the deportation of an individual as an act of discretion.[6] While deferred action does not adjudicate an individual as a “lawful” citizen, it awards that individual the status of “lawfully present” during the deferral period.[7] Under Napolitano’s plan, individuals were able to apply for a deferral with the potential for work authorization and the option to renew if a request was granted.[8] Unable to gain enough support for the program in Congress, then-President Barack Obama adopted the DACA plan by executive memorandum.[9] Since its establishment, nearly 800,000 people have deferred their pending deportations.[10]

Under the initial plan for DACA, people could apply for deferred action if: (1) they came to the United States before their 16th birthday; (2) they were 31 years old or younger; (3) they uninterruptedly resided in the United States since June 15, 2007; and (4) they were currently in school, graduated school, had a certificate of completion from a high school, had a General Educational Development (“GED”) Certificate, or were an honorably discharged veteran of the United States Coast Guard or Armed Forces.[11] Persons convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors were ineligible.[12] Additionally, if an applicant had “lawful status” on June 15, 2012, they were also ineligible.[13]

Following the inauguration of President Trump, then-Attorney General Jeff Sessions wrote a letter to the Department of Homeland Security, expressing his concern over the broad reach of the program. Essentially, Sessions argued that the program lacked the necessary statutory authority, had no end date, and lacked support from Congress. Sessions argued it was an “unconstitutional exercise of authority.”[14] Subsequently, then-Homeland Security Secretary Kjersten Nielsen issued a memorandum which sought to rescind DACA and set forth a method for “phasing out” the program in its entirety.[15] The Administration planned to stop accepting new applications and began to only process renewals for those DACA recipients whose status expired before March 5, 2018.[16] 

The Arguments

Can the Court even review this matter?

In a brief submitted to the Court, the government contested that its termination of DACA is not judicially reviewable.[17] While lower courts ruled that the termination was “arbitrary and capricious,” the Administration argued that the Court could not review this standard if the termination was a form of permissible discretion under the Administrative Procedure Act.[18] The Administrative Procedure Act identifies the processes in which federal agencies may develop and enforce regulations.[19] As such, the government argued that it possesses the discretion to terminate DACA.  

The challengers in the Consolidated Cases argue, however, that this issue is a perfect example of what the Court can review, and one that has been reviewed in the past.[20] Further, the challengers maintain that even if their first argument failed, the Court has the power to review the matter because the Administration argued its reasoning for termination was the illegality of DACA as a whole.[21]

In oral argument, the Administration again argued that its termination of DACA was not reviewable because it was a discretionary decision, even though it also argued the DACA program was illegal. Justice Ruth Bader Ginsburg questioned this argument: if the Administration reasoned that it terminated DACA because the program was illegal, it would not be a matter of discretion, but a legal one, and therefore clearly within the purview of the Court.[22] Justices Samuel Alito and Neil Gorsuch were less skeptical of this argument: where was the line between reviewable and non-reviewable decisions?[23]

Is the termination of DACA legal?

Relying on the Fifth Circuit’s decision to strike the Deferred Action for Parents of Americans (“DAPA”) and an expanded DACA program, the Administration, in its brief, reasoned that the implementation of DACA in the first place was “highly questionable” [24] and “an ongoing violation of federal immigration law.”[25] The challengers, on the other hand, argued that if terminating DACA was of incredible importance, the Administration would not have waited seven months before attempting to terminate the program.[26] Further, they argued that anticipation of potential litigation is not sufficient enough to justify the termination of DACA and doing so would undermine nearly every agency decision to date.[27] Finally, the challengers highlighted the public policy implications for terminating the program, including the displacement of hundreds of thousands of people who are actively working and studying in the United States.[28]

In oral argument, the parties conceded to the fact that the Administration had the authority to terminate DACA.[29] As a result, the Court was asked to review the method in which the Administration terminated DACA, rather than if it could terminate DACA.[30] The argument appeared to break down along traditional conservative-liberal lines, although commentators noted that many justices appeared “torn” and it was unclear how the case would ultimately be decided.[31]

The holding in these Consolidated Cases is expected to be released in June 2020.[32] While the future of DACA remains unclear until then, various district court injunctions prevent the complete cessation of the DACA program prior to a decision.[33] While the Administration does not foreshadow a mass deportation should DACA be eliminated,[34] the loss of the program would immediately strip recipients and potential applicants of their rights to work, attend school, and even drive.[35]


[1]Amy Howe, Argument Preview: Justices to Review Dispute over Termination of DACA, SCOTUSBlog (Nov. 5, 2019, 5:02 PM), https://www.scotusblog.com/2019/11/argument-preview-justices-to-review-dispute-over-termination-of-daca/.

[2] Id.

[3] Deferred Action Basics, Nat’l Immigr. F. (Apr. 15, 2016), https://immigrationforum.org/article/deferred-action-basics/; Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA, SCOTUSBlog (Sept. 10, 2019, 3:06 PM), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/

[4] Deferred Action for Childhood Arrivals (DACA), Homeland Security, https://www.dhs.gov/deferred-action-childhood-arrivals-daca (last updated Sept. 23, 2019).

[5] What is DACA and Who Are the DREAMers, Anti-Defamation League, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-are-the-dreamers (last updated Oct. 17, 2019).

[6]Deferred Action Basics, supra note 3.

[7] Id.

[8] Id.

[9] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[10] Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/daca-supreme-court.html.

[11] What Are the Eligibility Requirements for DACA?, CitizenPath, https://citizenpath.com/faq/daca-eligibility-requirements/.

[12] Id.

[13] Lori Robertson, The Facts on DACA, FactCheck (Jan. 22, 2018), https://www.factcheck.org/2018/01/the-facts-on-daca/.

[14] Id.

[15] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[16] Dara Lind, March 5 Is Supposed to Be the DACA “deadline.” Here’s What That Means for Immigrants, Vox, https://www.vox.com/policy-and-politics/2018/2/16/17015818/daca-deadline-trump-dreamers-march-5 (last updated Mar. 5, 2018, 10:31 AM).

[17] Lomi Kriel, Trump’s Decision to End DACA Faces Supreme Court Scrutiny, Houston Chron. (Nov. 11, 2019), https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-s-decision-to-end-DACA-faces-Supreme-14827072.php.

[18] Howe, supra note 3; 5 U.S.C § 551 (2012).

[19] 5 U.S.C. § 551.

[20] Howe, supra note 3.

[21] Id.

[22] Amy Howe, Argument Analysis: Justices Torn, Hard to Read in Challenge to Decision to End DACA, SCOTUSBlog (Nov. 12, 2019, 2:07 PM), https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/.

[23] Id.

[24] Howe, supra note 3.

[25] Id.

[26] Howe, supra note 1.

[27] Id.

[28] Id.

[29] Howe, supra note 22.

[30] Id.

[31] Id.

[32] Supreme Court Grants Cert in Three DACA Cases, Nat’l Immigr. L. Ctr. (June 28, 2019), https://www.nilc.org/issues/daca/alert-supreme-court-grants-cert-in-three-daca-cases/.

[33] Lind, supra note 16.

[34] Hector Barreto, Here’s Why Trump is Right to End DACA, CNBC (Sept. 6, 2017), https://www.cnbc.com/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html.

[35] Yanet Limon-Amado, Losing DACA Would, on Top of Everything Else, Double My College Tuition, Wash. Post (Nov. 12, 2019), https://www.washingtonpost.com/outlook/2019/11/12/losing-daca-would-top-everything-else-double-my-college-tuition/.

By Elliott Riches

On September 11, the Trump Administration received a major victory in the Supreme Court.[1] No, the Court hadn’t granted certiorari or heard oral argument; this win came in what the legal community refers to as the “shadow docket.”[2] Most law students or legal practitioners will likely be familiar with the Supreme Court’s primary method for deciding cases: petition for certiorari, certiorari granted, oral argument, months of waiting, and finally a written opinion.[3] The Court has operated this way for years. The Trump Administration, though, has found a new, quicker way to resolve issues in its favor. It uses extraordinary measures such as a petition for certiorari before judgment or application for a stay pending appeal before the case even makes its way through the appellate process.[4]

The Supreme Court Rules do provide for this sort of relief. Supreme Court Rule 11 provides that litigants may seek relief in the Supreme Court before a lower court has issued its ruling.[5] The Court also allows for the issuance of a stay pending appeal.[6] But the Court’s own rules specify that “[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”[7] In order to receive this sort of stay, the applicant must carry an “especially heavy” burden.[8] To meet this burden, it “must demonstrate (1) ‘a reasonable probability’ that [the] Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay.’”[9] The Trump Administration has filed at least twenty applications for a stay before judgment, not to mention other forms of extraordinary relief including petitions for certiorari before judgment and applications for writs of mandamus.[10] In contrast, Presidents Barack Obama & George W. Bush sought this sort of extraordinary relief a combined total of only eight times.[11]

That takes us to the administration’s most recent victory. On July 16, 2019, the United States, through the Departments of Justice and Homeland Security, promulgated a rule that would deny asylum to all Central Americans who passed through Mexico unless they first were denied asylum in either Mexico or another country.[12] The day they issued the rule, several organizations that represent immigrants seeking asylum sued the administration seeking both a temporary restraining order and a nationwide preliminary injunction.[13] The district court granted the preliminary injunction finding that the rule was “likely inconsistent with the existing asylum laws,” might violate the Administrative Procedure Act’s (APA) notice-and-comment rules, and was likely invalid as arbitrary and capricious.[14] In response, the administration appealed the ruling to the Ninth Circuit Court of Appeals and also sought a stay in that court pending the disposition of the appeal.[15] The Ninth Circuit instead narrowed the scope of the injunction to only apply within that Circuit, but allowed the District Court to examine additional factors to expand the injunction, which the District Court subsequently did.[16] Unsatisfied with the result in both the District Court and the Court of Appeals, the government sought a stay pending appeal in the Supreme Court.[17]

The Supreme Court chose to grant the stay without any explanation, simply writing, “The application for stay presented to Justice Kagan and by her referred to the Court is granted.”[18] The Court did not elaborate on its reasoning but instead merely issued procedural rules regarding the stay.[19] Two justices noted their dissent from the ruling; Justice Sotomayor was joined by Justice Ginsburg in her written dissent.[20] Among other reasons, Justice Sotomayor noted the frequency with which the Trump Administration had sought this sort of extraordinary relief in the Supreme Court.[21] She writes, “The Government has treated this exceptional mechanism as a new normal.”[22] Justice Sotomayor went on to comment that, in contrast to historical precedent, the Trump Administration now seeks extraordinary relief “reflexively.”[23] She urged her fellow Justices to exercise “restraint” in allowing the administration to take “shortcuts,” a plea that apparently fell on mostly deaf ears.[24]

The Court would have been wise to heed Justice Sotomayor’s plea and deny extraordinary relief. This is not an issue of whether the policy is right or wrong; it is an issue of process. For years, extraordinary relief has only been asked for, let only granted, in truly extraordinary circumstances. The current administration’s consistent asking for relief weakens the institutional legitimacy of the Supreme Court. As Justice Gorsuch wrote, “This Court often speaks most wisely when it speaks last.”[25] By granting this sort of relief the Court is not allowing the appellate process to play out. Instead, it is choosing to circumvent the Courts of Appeal and make decisions about a case well before they have the kind of developed record and analysis traditionally seen in Supreme Court cases.

One potential argument those who support the administration’s drastic measures may make is that extraordinary relief is necessary against the trend of nationwide injunctions.[26] Justice Thomas discussed the issue of nationwide injunctions in the travel ban case writing that “they appear inconsistent with longstanding limits on equitable relief” and that if the trend continues, the Court “must address their legality.”[27] However, Thomas was not joined by any other justices in his lengthy concurrence on this issue. Therefore, until the Court does address the issue of nationwide injunctions, neither the Court nor litigants should attempt to prevent these injunctions using the shadow docket.

This is obviously not the first time, nor will it likely be the last time, that the Trump Administration seeks extraordinary relief in the Supreme Court. While the process for obtaining an opinion from the Supreme Court can sometimes take months or even years, extraordinary relief can be obtained in very short order.[28] Extraordinary relief is therefore a much more efficient solution for the Trump Administration’s desire to implement its administrative agenda, as opposed to waiting for the traditional Court process to unfold. Given the frequency with which the Trump Administration has filed for extraordinary relief, it is only an issue of when, not if, they next request it. Meanwhile, courtwatchers and the American people are left to wonder: how many more times will the Court give the administration what it wants?


[1] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781 (U.S. Sept. 11, 2019) (mem.), https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf (granting request for a stay pending appeal of injunction of immigration rule).

[2] See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

[3] See Sup. Ct. R. 12, 16, 24, 28, 41.

[4] See, e.g., Application for a Stay Pending Appeal, E. Bay Sanctuary Covenant, 2019 WL 4292781 (U.S. Sept. 11, 2019) (No. 19A230), https://www.supremecourt.gov/DocketPDF/19/19A230/113613/20190826132549423_East%20Bay%20II%20Stay%20FINAL.pdf.

[5] 28 U.S.C. § 2101(e) (2012); Sup. Ct. R. 11.

[6] Sup. Ct. R. 23.

[7] Id.

[8] Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, J., in chambers).

[9] Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (quoting Conkridght v. Frommert, 566 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)).

[10] Ian Millhiser, Justice Sotomayor Warns the Supreme Court is Doing “Extraordinary” Favors for Trump, Vox (Sept. 12, 2019, 11:20 AM), https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump; Steve Vladeck (@steve_vladeck), Twitter (July 12, 2019, 4:11 PM), https://twitter.com/steve_vladeck/status/1149773351784726528.

[11]Id.

[12] Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835, 33,840 (Jul. 16, 2019) (to be codified at 8 C.F.R. pts. 208, 1003, 1208).

[13] E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 935 (N.D. Cal. 2019).

[14] Id. at 930.

[15] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781, at *2 (U.S. 2019) (mem.).

[16] Id.; E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST, 2019 WL 4265078, at *1 (N.D. Cal. 2019).

[17] Application for Stay Pending Appeal, supra note 4.

[18] E. Bay Sanctuary Covenant, 2019 WL 4292781, at *1 (U.S. 2019) (No. 19A230).

[19] Id.

[20] Id.

[21] Id. at *3 (Sotomayor, J., dissenting).

[22] Id.

[23] Id.

[24] Id.

[25] Maslenjak v. U.S., 137 S. Ct. 1918, 1932 (2017) (Gorsuch, J., concurring).

[26] Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018) (Thomas, J., concurring) (“Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions—have become increasingly common.”)

[27] Id. at 2425.

[28] In the East Bay case, the application for stay was filed on August 26, 2019. See Application for Stay Pending Appeal, supra note 4. As mentioned above, the Court issued the stay on September 11, 2019.