A Standard for Administrative Stays

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“ADMINISTRATIVE.” It’s a word that calls to mind minor housekeeping matters—maybe boxing up dusty manila files—rather than the kinds of federal cases that affect millions of lives. However, according to a recent article by Professor Rachel Bayefsky published in the Notre Dame Law Review, federal judges’ administrative stays have had real-world consequences in recent high-profile cases involving abortion, homelessness and immigration.

An administrative stay allows federal courts to halt the effect of legal proceedings until a ruling is made on a party’s request for expedited relief—often a request for a more extended stay.

Despite the potential for such stays to affect lives and policies in these areas, Bayefsky says, federal courts have yet to introduce a uniform standard for determining whether an administrative stay should be issued in a given case.

Administrative stays affected Texas women’s ability to have an abortion even before the Supreme Court overturned Roe v. Wade. During the pandemic, Texas Gov. Greg Abbott issued an executive order postponing certain medical procedures, including abortions. When the federal district court blocked enforcement of Abbott’s order with regard to abortions, Texas officials appealed, seeking administrative stays to block the lower court’s ruling on an expedited basis.

The Fifth Circuit issued two administrative stays, portions of which lasted 19 days. Critics argued that the stays—which temporarily barred certain abortions—effectively denied some women’s constitutional rights and elevated their health risks.

Texas officials, on the other hand, argued in favor of the administrative stay because it preserved government power to protect public health during the pandemic.

“Administrative stays underscore the difficulty of devising value-neutral mechanisms for guiding the courts’ exercise of their discretion,” Bayefsky writes.

Her paper presents a series of recommended standards for determining whether a court should issue an administrative stay.

Among these recommendations is that stays should only be granted for a limited period of time, to promote legitimacy and consistency in the court system. Another is that for efficiency’s sake, some types of cases involving irreparable harm—such as those involving the death penalty or deportation from the United States—should automatically receive an administrative stay.