I.E., The 5th Circuit Doesn’t Want…

1. Last night's Fifth Circuit order granting Texas's application to stay the injunction against enforcement of #SB8 in US v. TX includes exactly one sentence of analysis — that relief is compelled by the Fifth Circuit and #SCOTUS rulings in Jackson.

Here's why that's just wrong: pic.twitter.com/woBg3KzujV

— Steve Vladeck (@steve_vladeck) October 15, 2021

...to overrule SB 8. I mean, they REALLY don't want to.

3. The whole point of the federal government's *separate* lawsuit is that many of those immunity doctrines do *not* apply when the U.S. is the plaintiff, as Judge Pitman explained at great length in his detailed, 113-page ruling supporting the injunction:https://t.co/LLQFF0WSrW

— Steve Vladeck (@steve_vladeck) October 15, 2021

5. Nor does the #SCOTUS ruling provide any more support for the Fifth Circuit's stay. Recall that, after the Fifth Circuit's stay in *Jackson,* the Supreme Court rejected the *providers'* application for emergency relief in a cryptic, one-paragraph order:https://t.co/Jv85qj4NC3 pic.twitter.com/lL1VXjAnyd

— Steve Vladeck (@steve_vladeck) October 15, 2021

7. Moreover, at least two of the three concerns that the Court raised (but didn't resolve) in Jackson do not even *apply* to DOJ's suit, since (1) one of the defendants in DOJ's case *has* now brought an action to enforce #SB8; and (2) Ex parte Young is about sovereign immunity.

— Steve Vladeck (@steve_vladeck) October 15, 2021

8. Simply put, neither the Fifth Circuit nor the #SCOTUS ruling in Jackson actually *answers* the questions raised by TX's application for a stay.

To hold otherwise is to either *misunderstand* those rulings or to assume that their substantive analysis just isn't relevant.

/end

— Steve Vladeck (@steve_vladeck) October 15, 2021

And any excuse not to do so, is good enough. Who needs substantive analysis when you’ve reached your conclusion without it?

One seldom sees it so blatantly, though. On the other hand, circuit courts don’t have the convenience of a “shadow docket.”