“Accordingly, this court should grant a stay pending further review and an immediate administrative stay,” Sauer wrote.
The Trump administration has filed an emergency appeal with the Supreme Court urging the high court to intervene in a legal battle over President Trump’s executive order restricting mail-in voting.
The March executive order titled “Ensuring Citizenship Verification and Integrity in Federal Elections” directed the Department of Homeland Security to compile a list of US citizens who are eligible to vote, and the USPS to create rules that would toughen requirements for states that conduct voting by mail, including not sending ballots to those who have not been identified as eligible US citizens.
In the filing, Solicitor General D. John Sauer argued that the courts do not have the power to intervene at this stage because involved agencies, such as the USPS, are still working out how to implement the directive. The emergency filing comes after the US Court of Appeals for the First Circuit on Saturday declined to lift an order from US District Judge Indira Talwani, which halted parts of the order, ruling that they violate the separation of powers. Democrat-led states are suing over the executive order.
Sauer wrote that the injunction “is especially indefensible because the agencies are still deliberating over how (if at all) to implement the Order, yet the district court preemptively decided that whatever the agencies may choose to do will necessarily be unlawful.”
“That injunction flouts settled Article III standing and ripeness principles. This Court has repeatedly and recently recognized that courts cannot enjoin implementation of Executive Orders that leave open material issues that still need to be resolved by agencies, unless and until those agencies actually take concrete actions that injure the plaintiffs,” he added.
Sauer said the injunction “imposes serious irreparable harm on the federal government. Even if the agencies’ implementation plans end up being entirely lawful, there is not enough time to obtain ordinary appellate relief from the injunction in order to carry them out before the November election, especially given that any such plans will need to be implemented well before November given the timing of the election procedures concerning voter-roll verification and mail voting.”
“Accordingly, this court should grant a stay pending further review and an immediate administrative stay,” Sauer wrote.
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