The D.C. Circuit has at last ruled on the stay motion in the Miers case. In a brief per curium opinion, the court grants the motion to stay and denies the motion for an expedited briefing schedule.
The court first holds that there is appellate jurisdiction, noting that the declaratory judgment that Miers must testify is the “functional equivalent” of an injunction, and thus appealable, because the court presumes that executive officials (or, in Miers’s case, former executive officials) will act in accordance with the court’s declaration.
The rest of the opinion is very peculiar because it makes no reference to the four factors that the court is required to consider in ruling on a stay. There is in fact no explicit discussion of any kind regarding the merits of the stay application. Instead the court first notes that this is a “case of potentially great significance for the balance of power between the Legislative and Executive Branches.” It then explains that “the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009.” Accordingly, it concludes that there is no reason to expedite the case.
Somewhere, though, the court seems to have missed the step of explaining why the stay should be granted. The question of expediting the case only becomes relevant if one assumes that the case is stayed. One gets the impression that there may have been some additional discussion that was deleted at the last moment.
Judge Tatel’s concurring opinion does discuss the stay issue. He suggests that an appellant who will suffer irreparable injury need only make a “modest” showing of probable success on the merits. He then indicates that issues before the court satisfy this standard, “[e]xcept for the executive’s assertion of absolute immunity from congressional process.”
Of course, that is a very big exception, seeing as how absolute immunity is the main issue in the case. (Presumably, the other issues Judge Tatel refers to are the threshold jurisdictional issues raised by the Executive). Moreover, while Judge Tatel apparently accepts that the Executive would suffer “irreparable injury” if a stay were not granted, he does not explain why that would be the case. The Executive’s argument with regard to irreparable injury was simply that Judge Bates’s order “negates” Miers’s asserted absolute immunity by requiring Miers to appear and testify before the Committee. But how could Judge Tatel find that to be irreparable injury if the absolute immunity is meritless?
The real point of Judge Tatel’s concurrence, though, was to state that he was “perplexed” by the majority’s willingness to grant a stay without definitively rejecting the possibility that “the expiration of the 110th Congress would moot the case before it is heard on the merits.” “Never before have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court.” Nonetheless, because Judge Tatel believes that the case would not be moot (and therefore that a stay will not greatly harm the Committee), he concurred in the court’s judgment.
The one thing that seems clear from both the majority and concurring opinions is that the panel hopes that a new President and new Congress will find a way to resolve this dispute without the need for further judicial intervention. I think that the court would have been better served if it had simply expressed this view directly, rather than reaching the result through dubious (or entirely absent) legal reasoning.