Yesterday, I wrote about President-Elect Trump's brief in the TikTok case, which urged the Court to "grant a stay to preserve the status quo in a case that presents novel." Trump is not actually asking for a stay. A stay is used to put on hold a lower-court injunction. In this case, the D.C. Circuit declined to enjoin the statute. Rather, Trump is seeking some sort of injunction to provide more time for negotiations. In my post, I speculated what this sort of injunction would even look like. Would it last for a specific number of days, or could the Court issue an injunction indefinitely? Implicit in my suggestions was that the Court would issue such an injunction, without regard to the merits. In other words, this order would not turn on whether the statute violates the First Amendment.
Steve Vladeck writes that the Court could not issue an injunction without opining on the merits:
The first is that it's asking the Court to do something that the Court … has no power to do. Without at least some view as to the constitutionality of the statute, there's no basis for the Court to do anything to prevent the statute's operative provisions from going into effect on January 19. . . .
The Court has no authority to block the statute solely because something that might happen on some un-specific future date could moot the constitutional questions it presents. Its authority depends upon at least an interim determination that the statute is unconstitutional. To argue for a pause without any constitutional determination is not merely to inject politics into a legal dispute; it's to ask for the law to take a backseat to the politics altogether.
