In an earlier post, I suggested that the Supreme Court might find that the states’ claim for relief was premature, and the government on that basis may get a stay of the order out of the First Circuit enjoining DHS, USPS, and the rest of the federal government from implementing key parts of Trump’s executive order.

Having now gone through the First Circuit case more carefully, I agree with Justin that the states should be found to have standing as to the USPS rules, which are already forcing states to spend time and money preparing to implement the upcoming final rule (which is supposed to be promulgated today under the EO, presumably for use by the other states who are not plaintiffs in this case).  The harder question relates to the part of the EO about the DHS’s creation of citizenship lists and a means of checking and requesting modification of the lists, and the implicit threat to criminally prosecute election officials who, despite having the lists, somehow allow noncitizens to be registered or to vote. The government made some interesting concessions in this regard in their SCOTUS stay application, so we will see how it all goes.

I also note that the Supreme Court did not grant an immediate administrative stay as the government requested, and Justice Jackson gave the states a whole week to respond. Given the undisputed evidence acknowledged in the government’s stay application that the window for 2026 implementation of anything in the Trump EO is closing, I continue to be skeptical any of this could be implemented in time even with a green light from the Supreme Court.