Latest / Bloomberg Law / Pressure on SCOTUS Over Trump 'Emergency' Wins

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Pressure on SCOTUS Over Trump 'Emergency' Wins · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Since President Trump returned to office, his administration has made
0:13
Speaker 2: twenty seven emergency requests to the Supreme Court, and the
0:18
Speaker 2: Justices have granted those requests in full or in part.
0:22
Speaker 2: Are remarkable twenty seven times, but Trump ignored that extraordinary
0:28
Speaker 2: win loss record after the Court decried his signature tariffs
0:33
Speaker 2: berating the justices who ruled against him as fools, lapdogs, unpatriotic,
0:39
Speaker 2: and disloyal to the Constitution, and nearly a month later,
0:44
Speaker 2: he again complained about his Supreme Court nominees not following
0:48
Speaker 2: his wishes on Monday in the Oval Office. Republicans go
0:53
Speaker 2: the opposite way. If Donald Trump appointed.
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Speaker 1: Me, I'm going to show the world that I can
0:59
Speaker 1: be totally just, that I can be independent of that Trump.
1:06
Speaker 2: He's not controlling me. Despite what the President may think
1:10
Speaker 2: about how the Supreme Court is treating him, pressure is
1:13
Speaker 2: growing on the justices over all those Trump emergency wins.
1:19
Speaker 2: Joining me is Bloomberg Legal reporter Zoe Tillman. Zoe tell
1:22
Speaker 2: us about the criticism of the Supreme Court's handling of
1:26
Speaker 2: the emergency docket, and you know, President Trump's extraordinary record
1:31
Speaker 2: of wins.
1:33
Speaker 3: Right, So in the past, you know this, this option
1:37
Speaker 3: of pursuing emergency relief from the justices has existed for
1:41
Speaker 3: a long time. This predates this administration, It predates the
1:44
Speaker 3: first Trump administration. In the past, there were instances where
1:49
Speaker 3: on a you know, underscore emergency basis, issues would go
1:53
Speaker 3: up while they were still pending in lower courts because
1:56
Speaker 3: parties felt that there was this need for a sort
1:58
Speaker 3: of immediate resolution of the.
2:01
Speaker 1: Status quo by the justices.
2:04
Speaker 3: But it was it was rare, and I think that
2:06
Speaker 3: seemed to reflect what the intent was of calling something
2:11
Speaker 3: an emergency. So during the first Trump administration, there was
2:14
Speaker 3: this uptick in instances when the government, after losing repeatedly
2:20
Speaker 3: in lower courts, would turn to the justices to say,
2:23
Speaker 3: you know, this case is still pending, but there are
2:26
Speaker 3: reasons why we're going to be irreparably harmed if you
2:30
Speaker 3: don't step in now, and you know, let things continue
2:33
Speaker 3: as we want them to while this is going forward.
2:36
Speaker 1: Under the Biden administration, it went down a.
2:39
Speaker 3: Bit from Trump one, but we still see sort of
2:42
Speaker 3: more use of the docket. I think Trump one really
2:45
Speaker 3: opened the door to this becoming a more commonplace part
2:49
Speaker 3: of legal strategy. And then since Trump came back to office,
2:54
Speaker 3: and you know, there's been a wave of unprecedented novel
2:59
Speaker 3: excit ex bandsive uses of executive power that have faced
3:03
Speaker 3: a wave of flood of lawsuits. There's been then another
3:08
Speaker 3: flood wave whatever metaphor you want to use to describe
3:12
Speaker 3: injunctions and orders against the government, and they've been taking
3:15
Speaker 3: those up at a much higher rate.
3:17
Speaker 1: Again back to the justices.
3:19
Speaker 3: Now, the criticism is that increasingly it's becoming a more
3:24
Speaker 3: commonplace part of the legal process in a way that
3:27
Speaker 3: many critics say it's not supposed to be that you're
3:31
Speaker 3: sort of skipping, leap frogging what's supposed to happen in
3:35
Speaker 3: the lower courts. There's supposed to be a full airing
3:37
Speaker 3: of the facts. Judges are supposed to get some time
3:40
Speaker 3: to really think about the full record, analyze the law,
3:43
Speaker 3: hand down fully reasoned decisions, and then parties can ask
3:48
Speaker 3: the Supreme Court to come in and do their own
3:50
Speaker 3: review of this.
3:51
Speaker 1: But by going to the justices.
3:54
Speaker 3: Early, the ideas that you're sort of short circuiting all
3:57
Speaker 3: of this and there's no longer a full airing for
4:00
Speaker 3: the justices put this sort of thumb on the scale
4:02
Speaker 3: and say, yes, you can fire all these people even
4:05
Speaker 3: though the case isn't over yet, or you know, yes,
4:07
Speaker 3: you can refuse to pay out all this money, or
4:10
Speaker 3: you can try to deport a lot of people even
4:13
Speaker 3: though the case isn't over yet.
4:14
Speaker 1: So that's how we got here.
4:17
Speaker 2: One of the major criticisms is that in many of
4:20
Speaker 2: these emergency orders, the justices have given little or no
4:25
Speaker 2: explanation for their actions, and that's led district court judges
4:30
Speaker 2: and even appellate court judges to reach different outcomes from
4:35
Speaker 2: the Supreme courts, saying there's a lack of guidance from
4:38
Speaker 2: the justices.
4:39
Speaker 1: That's right.
4:40
Speaker 3: And there's been this sort of extraordinary dialogue at times, disagreement,
4:45
Speaker 3: open disagreement unfolding between lower court judges and the justices,
4:51
Speaker 3: with the justice departments sort of serving as the intermediary
4:54
Speaker 3: where you know, courts, district judges, circuit judges will hand down,
4:58
Speaker 3: you know, opinions of pages fully analyzed, the Justice Department
5:04
Speaker 3: gets an order from the Supreme Court. We've done analysis before,
5:07
Speaker 3: you know. Some of these are a couple of sentences,
5:09
Speaker 3: a couple of paragraphs, sometimes they offer a reason in
5:14
Speaker 3: some summarized way, but sometimes they don't. And then the
5:17
Speaker 3: Justice Department is taking these and going back to lower
5:19
Speaker 3: courts and saying, see, we one, this means the court
5:23
Speaker 3: is going to side with us.
5:24
Speaker 1: Generally, you need to.
5:26
Speaker 3: Back off, and lower court judges are saying that is
5:28
Speaker 3: not at all how this works. It is not our
5:30
Speaker 3: job to read tea leaves. That was a phrase one
5:32
Speaker 3: judge actually used. That it's really not supposed to happen
5:35
Speaker 3: that way, and it's not appropriate. Judges are saying for
5:38
Speaker 3: it to happen that way. We're not supposed to infer
5:41
Speaker 3: what the Supreme Court wants. They're supposed to give us
5:44
Speaker 3: precedent that we can clearly apply. You know, last year
5:47
Speaker 3: there was sort of open disagreement that broke out where
5:51
Speaker 3: in another round of cases, judges were sort of not
5:55
Speaker 3: taking the approach the Justice Department wanted, and Justice Neil
5:58
Speaker 3: Gorsicch you know, wrote openly that they're not doing what
6:01
Speaker 3: they're supposed to do, and then lower court judges pushed
6:04
Speaker 3: back and bristled at Justice course such as comments in
6:07
Speaker 3: an opinion. I mean, there's sort of this open disagreement,
6:10
Speaker 3: which is extraordinary to see, and that kind of died
6:13
Speaker 3: down a bit, and now again.
6:15
Speaker 1: There's been this uptick in courts saying they just haven't
6:19
Speaker 1: given us enough to work with.
6:21
Speaker 2: Yeah, that was extraordinary. So the TPS program, temporary Protected
6:26
Speaker 2: status is designed to protect immigrants whose home countries are
6:30
Speaker 2: in crisis and let them temporarily live and work here
6:34
Speaker 2: in the United States. So explain how lawsuits challenging the
6:39
Speaker 2: administration's efforts to roll back TPS have become a flashpoint
6:46
Speaker 2: in this debate about emergency orders at the Supreme Court.
6:51
Speaker 3: So last year, the Homeland Security Secretary Christino began rolling
6:57
Speaker 3: out announcements that they were terminating temper i protected status
7:01
Speaker 3: for a number of countries. I think it's something like
7:04
Speaker 3: seventeen at the start of twenty twenty five had TPS,
7:08
Speaker 3: and to date, I think it's thirteen where GNOME has
7:11
Speaker 3: announced they're terminating the status before it was supposed to expire,
7:17
Speaker 3: or allowing it to expire in a way that is
7:20
Speaker 3: being contested. And the issue that challengers say is that, yes,
7:23
Speaker 3: you know, this is a discretion that the Secretary has
7:26
Speaker 3: to designate a country is so dangerous, so unstable that
7:30
Speaker 3: its citizens are able to come to the US and
7:33
Speaker 3: get authorization to work and live here some temporary basis.
7:37
Speaker 3: But the concern is that a she's doing it in
7:40
Speaker 3: a way that goes far beyond the process that's supposed
7:44
Speaker 3: to happen here, that there's administrative steps that she's not following.
7:48
Speaker 3: The other argument and allegation is that whatever reasons this
7:53
Speaker 3: administration is giving is actually pretextual, and that it is
7:57
Speaker 3: because these are people from parts of the world or
8:00
Speaker 3: people from ethnic backgrounds that this administration does not want
8:04
Speaker 3: in the United States, and that there is a discriminatory,
8:08
Speaker 3: a hostile purpose behind these cancelations that violates the rights
8:12
Speaker 3: of these migrants. And we've had some judges finding that
8:16
Speaker 3: they think the evidence does support those allegations, as well
8:20
Speaker 3: as finding that just process wise, they've gone about this
8:23
Speaker 3: in an unlawful way. So as terminations were announced, lawsuits
8:28
Speaker 3: hit the docket. We've had lower courts mostly although not exclusively,
8:33
Speaker 3: siding with challengers, granting preliminary injunctions stopping these terminations from
8:39
Speaker 3: taking effect. Going up on appeal appeals courts often affirming
8:44
Speaker 3: what the lower courts have done. But what's been sort
8:46
Speaker 3: of fascinating about these cases is. There's been two times
8:50
Speaker 3: the Supreme Court has weighed and it was in a
8:53
Speaker 3: case involving Venezuelan's and both times they sided with the
8:56
Speaker 3: government and said, yes, you can go ahead with what
8:59
Speaker 3: you're trying to do here in terminating their status. And
9:02
Speaker 3: after both of those orders, lower courts in large parts
9:05
Speaker 3: said like, this does not apply to me.
9:08
Speaker 1: There was no reasoning here.
9:10
Speaker 3: Venezuela is a different country from the country that I'm
9:13
Speaker 3: looking at, and without the justices telling me, you know,
9:17
Speaker 3: here's the reasoning that should apply more broadly beyond the
9:21
Speaker 3: case before us, we're not going to back off. And
9:24
Speaker 3: so the issue is now back before the Justices, with
9:28
Speaker 3: DOJ saying, you know, this is just a pattern of
9:31
Speaker 3: lower courts defying the Supreme Court and the challengers arguing no,
9:36
Speaker 3: this is the lower courts doing their job, that they're
9:38
Speaker 3: doing exactly what they're supposed to do.
9:40
Speaker 2: The administration asked the Court last week again an emergency
9:44
Speaker 2: basis to end temporary protected status for Haitians, as they'd
9:49
Speaker 2: ask the court about two weeks earlier to end temporary
9:52
Speaker 2: protected status for Syrians, and they made an unusual request
9:56
Speaker 2: to ask for a full court review we're doing this
10:00
Speaker 2: on the emergency docket, but we want you to handle
10:04
Speaker 2: this as if it was on the regular docket. Is
10:07
Speaker 2: that very unusual.
10:09
Speaker 3: It's quite unusual. Everything about this is quite unusual. And
10:13
Speaker 3: what we saw was the court, at least initially this time,
10:18
Speaker 3: saying we are not going to immediately intervene here. There
10:22
Speaker 3: was an ask by the Justice Department to lift the
10:25
Speaker 3: lower court rulings now while the case goes forward, which
10:30
Speaker 3: would effectively put the Haitians and Syrians on the table
10:34
Speaker 3: for potential detention and deportation or force them to leave
10:38
Speaker 3: because they would lose legal status to be here unless
10:42
Speaker 3: they had some other path that they were going to
10:45
Speaker 3: pursue that was going to come through really quickly.
10:48
Speaker 1: Tps' is not a path citizenship or green cards.
10:52
Speaker 3: They can pursue those separately, but those processes take years
10:55
Speaker 3: and the Trump administration has slowed a lot of those
10:58
Speaker 3: systems down.
11:00
Speaker 1: Assuming they don't have another.
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Speaker 3: Path, if they lose TPS, they could be deported, they could.
11:05
Speaker 1: Have to leave.
11:06
Speaker 3: So, just as has said this time, we're not going
11:09
Speaker 3: to take that approach. We're going to hold off here
11:11
Speaker 3: for now. But in a very unusual move, you know,
11:14
Speaker 3: they did say, yes, we will skip the rest of
11:17
Speaker 3: the proceedings in the Circuit court and we will take
11:20
Speaker 3: this up on the merits. They are going to have
11:23
Speaker 3: arguments in April. So the government got some of what
11:26
Speaker 3: it wanted here. This is certainly fast tracking it. This
11:29
Speaker 3: is not what the challengers wanted. They wanted to let
11:32
Speaker 3: the circuit courts complete their process, you know, give fully
11:36
Speaker 3: reasoned opinions.
11:37
Speaker 1: And then if the government wanted to take this up
11:39
Speaker 1: they could. But at a minimum, it does seem to
11:42
Speaker 1: be the.
11:43
Speaker 3: Court saying we are going to give you reasons here
11:46
Speaker 3: that even if they do end up siding with the government,
11:48
Speaker 3: they're going to do it in some ways at least
11:51
Speaker 3: that looks more like normal process that lower courts can
11:55
Speaker 3: then turn to to say, Okay, this is the precedent.
11:58
Speaker 1: This is what they're telling us to do.
12:00
Speaker 2: Coming up, two justices clash over the courts shadow docket.
12:04
Speaker 2: This is Bloomberg. Twice last year, the Supreme Court cleared
12:10
Speaker 2: the Trump administration to end protections for hundreds of thousands
12:14
Speaker 2: of Venezuelan migrants fleeing violence and instability. In the months
12:19
Speaker 2: that followed, current and former judges repeatedly called out the
12:23
Speaker 2: justices for failing to explain their reasoning. The issue is
12:27
Speaker 2: before the High Court again, and this time there are
12:30
Speaker 2: signs that justices heard the criticism. They declined to immediately
12:35
Speaker 2: intervene in two other cases involving temporary protected status, this
12:41
Speaker 2: time for Haitians and Syrians, but the court did grant
12:45
Speaker 2: the administration's request to leapfrog over appellate courts and fast
12:50
Speaker 2: track arguments next month on the merits of the fight,
12:53
Speaker 2: potentially ruling by July. I've been douking to Bloomberg Legal
12:58
Speaker 2: reporter Zoey Tillman. Zoe, there was an unusual amikus brief
13:03
Speaker 2: or a friend of the court brief, signed by former
13:06
Speaker 2: state and federal judges that urged the justices to allow
13:11
Speaker 2: the full legal process to play out in the case
13:14
Speaker 2: involving the Syrian migrants. Do you think that influenced the justices.
13:19
Speaker 3: The order that they handed down doesn't explain the serting
13:23
Speaker 3: keeping with the surprize surprise, It didn't explain why they decided.
13:28
Speaker 1: To take the approach that they did this time.
13:30
Speaker 3: So you know, they didn't say, we heard your complaints
13:33
Speaker 3: and so we're going to go to the merits instead
13:35
Speaker 3: of ruling on the emergency docket. They didn't say that,
13:38
Speaker 3: you know, so we don't know what was in their
13:40
Speaker 3: heads that said.
13:41
Speaker 1: What we know is what's happened.
13:43
Speaker 3: Which is they have a record of lower courts really
13:46
Speaker 3: talking to them through opinions saying, you need to give
13:49
Speaker 3: us more. You know, if you want us to let
13:51
Speaker 3: the government terminate TPS, you need to tell us why
13:55
Speaker 3: in a way that we can apply. So there's a
13:57
Speaker 3: record of that, and you have this friend of Court
14:01
Speaker 3: brief signed by I think it's like more than one
14:03
Speaker 3: hundred and seventy five former federal and state judges coming
14:08
Speaker 3: to the defense of lower courts here and saying, you know,
14:12
Speaker 3: it's really not fair to accuse them of doing something wrong.
14:16
Speaker 3: You know, this is about the legitimacy of the Supreme Court.
14:19
Speaker 3: More broadly, that if you want the public and the
14:22
Speaker 3: rest of the courts to take seriously and respect the
14:25
Speaker 3: work that the Supreme Court is doing, that they need
14:27
Speaker 3: to slow down and show their work. And this past year,
14:31
Speaker 3: I think because there's been this escalation of attacks coming
14:35
Speaker 3: from the President directly, coming from other officials, coming from
14:40
Speaker 3: you know, conservative allies really attacking sometimes judges by name
14:44
Speaker 3: who have ruled against this administration making comments that question
14:48
Speaker 3: the integrity of what the lower courts do and the
14:51
Speaker 3: work of judges. There's been this outpouring of support coming
14:55
Speaker 3: from former judges. Occasionally we have sitting judges speaking up,
14:59
Speaker 3: which is, you know, one of the most extraordinary, if
15:02
Speaker 3: we're going to make a list of extraordinary things here,
15:04
Speaker 3: one of the most extraordinary things that we've seen. You know,
15:07
Speaker 3: the consequences for TPS holders, for them, the stakes are
15:11
Speaker 3: extremely high. Lawyers have talked about the dangers that they
15:14
Speaker 3: face if they are forced to go home. So there's,
15:17
Speaker 3: on the one hand, you know, the high human stakes
15:19
Speaker 3: for the people involved here. I think also a lot
15:22
Speaker 3: of people see these types of cases as high stakes
15:26
Speaker 3: for the role the judiciary plays and the credibility and
15:31
Speaker 3: legitimacy of the work that the courts do, and whether
15:33
Speaker 3: they can function as a robust check on the other branches.
15:39
Speaker 2: The challenge in the TPS case is it based on
15:43
Speaker 2: that the Trump administration failed to follow the steps they
15:47
Speaker 2: were supposed to, which is something that the Trump administration
15:50
Speaker 2: is accused of in lawsuit after lawsuit, not following the
15:54
Speaker 2: procedures right.
15:56
Speaker 3: That is a big part of the cases that under
15:59
Speaker 3: the Administration Procedure Act, the way that these terminations were
16:03
Speaker 3: carried out sort of skipped over a lot of steps basically.
16:06
Speaker 3: And there's also a constitutional due process component to these
16:10
Speaker 3: cases in terms of just the treatment of the people
16:14
Speaker 3: who have relied on the status and the way that
16:17
Speaker 3: this affects their rights. This ties into some of the
16:21
Speaker 3: like discriminatory motives that have come up as allegations in
16:25
Speaker 3: at least some of the cases. In the Haiti case,
16:28
Speaker 3: the judge in Washington who ruled against the government said
16:32
Speaker 3: that the evidence seemed likely that there was this other
16:37
Speaker 3: intent coming from Secretary Gnome in the administration. You know,
16:42
Speaker 3: we know there was a record of President Trump making
16:46
Speaker 3: derogatory comments about Haitians back I think during the campaign.
16:51
Speaker 3: So I think this ties into, you know, is this
16:54
Speaker 3: part of a sort of broader anti migrant stance by
16:59
Speaker 3: the administration that undermines the legal discretion that they do
17:04
Speaker 3: have to make decisions about immigration more broadly.
17:08
Speaker 2: As you point out in your story, disagreements over these
17:12
Speaker 2: emergency decisions by the Supreme Court have come up in
17:16
Speaker 2: other lawsuits during this second term.
17:20
Speaker 3: Right, you know, there have been a number of cases
17:23
Speaker 3: now where judges have pushed back on how broadly the
17:29
Speaker 3: Justice Department wants them to apply these emergency docket orders.
17:34
Speaker 3: It's come up in funding cases, and the Court has
17:37
Speaker 3: sort of had back and forth about you know, what
17:40
Speaker 3: it means when it has sided with the administration during
17:43
Speaker 3: the sort of wave of doge cuts early on how
17:46
Speaker 3: much to read into that. There was back and forth
17:49
Speaker 3: about this issue of third country deportations and the administration's
17:54
Speaker 3: ability to send people to countries that are not their
17:58
Speaker 3: home countries, and there's been an immigration court order saying
18:02
Speaker 3: you know, it's too dangerous to send this person to
18:05
Speaker 3: their home country. The government's ability to say, okay, well,
18:08
Speaker 3: this other country they have.
18:10
Speaker 1: No connection to is willing to take them.
18:12
Speaker 3: And there was some back and forth about how judges
18:15
Speaker 3: were continuing to block the administration after the Supreme Court
18:20
Speaker 3: handed down sort of early wins for the government. So
18:24
Speaker 3: I think, you know, it's to the extent that lower
18:27
Speaker 3: courts continue to block this administration on whatever the issue is.
18:32
Speaker 3: They're not taking everything up to the justices. But I
18:35
Speaker 3: think what we've seen as a pattern of if it's
18:37
Speaker 3: about you know, money that has to go out the door,
18:41
Speaker 3: people officials, employees that they want to immediately fire, migrants
18:46
Speaker 3: that they want to put on planes. Now, those are
18:50
Speaker 3: the types of cases where they have opted to try
18:53
Speaker 3: and take this emergency path.
18:55
Speaker 2: And so we should also point out that the emergency
18:58
Speaker 2: orders are designed to be in place while the litigation
19:01
Speaker 2: plays out. But as you know, it can take years
19:06
Speaker 2: for litigation to play out, So that means that these
19:09
Speaker 2: orders are in place for years. And sometimes that's determinative.
19:15
Speaker 1: Right, you know.
19:16
Speaker 3: I think to the extent it means, you know, a
19:20
Speaker 3: person can be fired even if they win down the
19:24
Speaker 3: road in some lower court proceeding. You know, the harm
19:27
Speaker 3: when we talk about a reparable harm, it's been done.
19:30
Speaker 3: If someone's been deported, even if they prevail later on,
19:33
Speaker 3: it's not clear you know that they have to be
19:36
Speaker 3: brought back to the United States. That there are sort
19:38
Speaker 3: of consequences, real world consequences of these emergency orders, even
19:43
Speaker 3: if within the context of the judiciary everyone says, you know,
19:47
Speaker 3: this is not a final determination of the merits. So,
19:51
Speaker 3: you know, I think courts have moved really quickly since
19:55
Speaker 3: Trump came back to office, and we've seen I think
19:58
Speaker 3: the GPS cases are also really interest because things moved
20:02
Speaker 3: fast after the Supreme Court sent back the Venezuela case,
20:07
Speaker 3: and the lower court, even in that case, looked at
20:10
Speaker 3: the Supreme Court's emergency order the first time and said,
20:14
Speaker 3: we're going to give it a merits analysis now, and
20:16
Speaker 3: we still think that what the government is doing is unlawful,
20:19
Speaker 3: so we're going to essentially block it again, and that's
20:21
Speaker 3: why it went back up to the Supreme Court. So
20:24
Speaker 3: things are unfolding on a pretty fast basis. But it's
20:29
Speaker 3: a reminder that you know, when something happens on an
20:32
Speaker 3: emergency docket or we get so called, you know, shadow
20:35
Speaker 3: docket order, it doesn't always end the proceedings and there
20:40
Speaker 3: can be these future rounds. It's just a question of
20:43
Speaker 3: how much can the toothpaste be put back in the
20:45
Speaker 3: tube weeks or months or years later.
20:49
Speaker 2: And not only is this being mentioned in lower court
20:52
Speaker 2: orders appellate court decisions, but also two justices to Donjie
20:57
Speaker 2: Brown Jackson and Brett Havanaw discussed their very different views
21:03
Speaker 2: on these emergency orders at a public event last week.
21:07
Speaker 3: Yes, and I mean in writing, the liberal justices have really,
21:13
Speaker 3: in very strong language, denounced the extent to which the
21:17
Speaker 3: conservative majority has sided with the government in these emergency cases.
21:22
Speaker 1: And yeah, there was.
21:23
Speaker 3: This sort of incredible timing of an event where Justice
21:26
Speaker 3: Cavanaugh and Justice Jackson were appearing for a talk in
21:31
Speaker 3: Washington and had some back and forth about this, where
21:35
Speaker 3: Justice Jackson said, you know that this was creating. I
21:38
Speaker 3: think the quote was a warped kind of proceeding by
21:43
Speaker 3: acting really fast based on a preliminary assessment of the issues.
21:47
Speaker 3: You know, no one is thinking that they've given it
21:50
Speaker 3: all the thought they could when.
21:51
Speaker 1: They're ruling in a matter of days or even weeks.
21:54
Speaker 3: And then Justice Kavanaugh came back and said, you know,
21:56
Speaker 3: I think there's a short memory here where folks making
21:59
Speaker 3: these critiques forget that we also intervened for the Biden administration.
22:05
Speaker 3: You know, it's not a partisan issue, but certainly numerically,
22:10
Speaker 3: this court and this conservative majority has sided with this
22:15
Speaker 3: conservative administration many times over, and these orders have been
22:20
Speaker 3: ideologically split. I think the other sort of dynamic to
22:24
Speaker 3: note here is that there are instances where what the
22:28
Speaker 3: Court is intervening to do is to endorse a change
22:33
Speaker 3: that the Trump administration has made to.
22:36
Speaker 1: The status quo, as opposed.
22:38
Speaker 3: To acting on an emergency basis to preserve what was
22:42
Speaker 3: the status quo before whatever the challenged action was.
22:46
Speaker 1: So the question of like, is their.
22:48
Speaker 3: Job to you know, put a thumb on the scale
22:52
Speaker 3: for the status quo before whatever you know, contested action happened,
22:58
Speaker 3: or you know, when they do it to a doors
23:00
Speaker 3: the change is that sort of weighing in more heavily
23:03
Speaker 3: on the merits than they're supposed to at this stage.
23:07
Speaker 2: And also, I mean, the number of emergency requests in
23:10
Speaker 2: just this beginning of the Trump administration exceeds, far exceeds
23:15
Speaker 2: all those in the four years of the Biden administration.
23:19
Speaker 3: Yes, and I mean they're on track to outpace Trump
23:22
Speaker 3: one in Trump two at this rate. I think it
23:27
Speaker 3: was what if you have forty one emergency requests that
23:31
Speaker 3: the Justice Department in the first Trump administration filed in
23:34
Speaker 3: the entirety of those four years, and we're at thirty
23:38
Speaker 3: three in year one. So if the pace keeps up
23:41
Speaker 3: like this, that total number at the end of four
23:44
Speaker 3: years will be much higher than what it was.
23:47
Speaker 2: Not to mention there were only three emergency requests during
23:51
Speaker 2: the eight years of the Barack Obama administration and only
23:55
Speaker 2: five during the eight years of the George W. Bush administration,
24:00
Speaker 2: So exponential growth in the shadow docket. Thanks so much, Zoe.
24:05
Speaker 2: That's Bloomberg Legal reporter Zoe Tillman coming up next on
24:09
Speaker 2: the Bloomberg Law Show. The Trump administration has been pushing
24:14
Speaker 2: the unitary executive theory, but now federal trial judges are
24:19
Speaker 2: using the theory against the administration in immigration cases. I'm
24:24
Speaker 2: June Grosso and you're listening to Bloomberg. The Trump administration
24:30
Speaker 2: has been testing the boundaries of the unitary executive theory,
24:34
Speaker 2: pushing the Supreme Court to embrace the theory as it
24:38
Speaker 2: tries to expand President Trump's powers. The theory argues that
24:42
Speaker 2: the Constitution vests all executive power in the president. However,
24:48
Speaker 2: some federal judges have been using the unitary executive theory
24:53
Speaker 2: against the administration in its immigration crackdown. Joining me is
24:57
Speaker 2: Bloomberg Law. Supreme Court reporter Justin Wise. Justin tell us
25:02
Speaker 2: about the unitary executive theory.
25:05
Speaker 4: So, the unitary executive theory is rooted in the vesting
25:09
Speaker 4: clause of Article two of the Constitution, which says the
25:13
Speaker 4: executive power shall be vested in the president of the
25:16
Speaker 4: United States. This theory essentially takes that and says that
25:19
Speaker 4: those working in the executive branch are accountable to the president.
25:24
Speaker 4: The issue is most apparent in Trump's wave of firings
25:27
Speaker 4: of federal government officials, including leaders at agencies who Congress
25:31
Speaker 4: insulated by law in an effort to keep it free
25:34
Speaker 4: of political influence. But as you can see, the logic
25:37
Speaker 4: of this theory goes further, and it can perhaps undercut
25:41
Speaker 4: the notion of us spread out bureaucracy with various responsibilities
25:45
Speaker 4: and structures. By the logic of this theory, it would
25:49
Speaker 4: say that every official is accountable to the president.
25:53
Speaker 2: And has the Trump administration specifically been pushing this theory
25:58
Speaker 2: at the Supreme Court?
26:00
Speaker 4: Yes, they have. In the instance of the firing of
26:04
Speaker 4: certain leaders of independent agencies, they have argued that some
26:08
Speaker 4: of these leaders, such as that the Federal Trade Commission,
26:11
Speaker 4: who by law are proticted from at will removal by
26:14
Speaker 4: the president, that those protections are unconstitutional because they exercise
26:20
Speaker 4: executive responsibilities and therefore must be accountable to the president,
26:24
Speaker 4: and the president therefore should have the legal authority to
26:27
Speaker 4: fire them as he pleases.
26:29
Speaker 2: Tell us what's been happening in the lower courts. You know,
26:34
Speaker 2: when the Justice Department lawyers are arguing in courts, specifically
26:39
Speaker 2: in immigration cases.
26:42
Speaker 4: We're kind of seeing how this logic plays out beyond
26:45
Speaker 4: the presidential firing cases, like as we've seen, the administration
26:48
Speaker 4: has made some of these arguments at the Supreme Court,
26:51
Speaker 4: but we're also seeing that this logic goes a lot further.
26:54
Speaker 4: It can perhaps, you know, sort of eliminate this notion
26:57
Speaker 4: of a spread out bureaucracy with a lot of different
26:59
Speaker 4: respect possibilities and various communications systems, you know. In one instance,
27:04
Speaker 4: a DOJ lawyer in Minneapolis told a judge that it
27:07
Speaker 4: was like quote pulling teeth to get instities within the
27:10
Speaker 4: Department of Homeland Security to comply with court orders. But
27:14
Speaker 4: that judge had a really interesting response. They had said,
27:17
Speaker 4: and quote, I wholeheartedly embraced the notion of a unitary
27:21
Speaker 4: executive as in DHS ice, the DOJ all are a
27:25
Speaker 4: part of the executive branch, and if there's a problem
27:28
Speaker 4: in the restaurant, I don't intend to go in the
27:30
Speaker 4: kitchen to try to figure out who makes the thread.
27:33
Speaker 4: And he was kind of getting at this idea that
27:35
Speaker 4: it's not an excuse to tell me you contacted an agency,
27:39
Speaker 4: because that agency is also a part of this unitary
27:42
Speaker 4: executive and that's not enough when I'm looking at who
27:46
Speaker 4: needs to be held accountable, and.
27:48
Speaker 2: It's the judges who are bringing up the unitary executive theory.
27:52
Speaker 2: It's not being suggested by the opposition.
27:57
Speaker 4: No, it's being raised by these judges in response to
28:00
Speaker 4: some of these representations that have been made by the
28:03
Speaker 4: Justice Department in some of these cases that are tied
28:06
Speaker 4: to the administration's immigration crackdown. Another example is in which
28:11
Speaker 4: the Justice Department had made this argument that the DHS
28:15
Speaker 4: in a particular case was not their client, that we
28:18
Speaker 4: can't tell DHS what to do and they can't tell
28:21
Speaker 4: us what to do. A judge had responded to that
28:23
Speaker 4: by basically saying, you know, I'm not going to really
28:25
Speaker 4: dive into that representation, but what I will note is
28:28
Speaker 4: this unitary executive theory, kind of pointing out that the
28:32
Speaker 4: assertion they were making actually could be undercut by this
28:35
Speaker 4: by this theory the administration is making. At the same.
28:38
Speaker 2: Time, particularly in this Trump administration, we've seen so many
28:43
Speaker 2: cases of lawyers Justice Department lawyers going to hearings and
28:49
Speaker 2: not being properly informed about the facts, and you know,
28:53
Speaker 2: as you mentioned, not being able to get agencies to
28:58
Speaker 2: do what the courts say. And there was that famous
29:01
Speaker 2: incident of a government lawyer saying, the system sucks, This
29:05
Speaker 2: job sucks. The government lawyer is actually arguing these cases
29:11
Speaker 2: before judges in the federal courts are really being put
29:15
Speaker 2: in a difficult position.
29:17
Speaker 1: Yeah.
29:17
Speaker 4: I think it speaks to kind of the capacity of
29:20
Speaker 4: the broader administration and whether some of the orders that
29:24
Speaker 4: have been implemented, you know that the structures in place
29:28
Speaker 4: are adequate enough to take on some of these massive
29:32
Speaker 4: undertakings that the administration wants to undertake. And then with
29:36
Speaker 4: respect to going into court, there are a number of orders.
29:40
Speaker 4: In the instance you mentioned that was actually in the
29:43
Speaker 4: same hearing where a judge had noted the unitary executive
29:48
Speaker 4: and kind of had noted to this lawyer who was
29:51
Speaker 4: kind of making an admission that the system was inadequate
29:54
Speaker 4: at this juncture to comply with court orders. That judge
29:58
Speaker 4: had responded in kind mentioning unitary executives, saying that it's
30:02
Speaker 4: the unitary executive's responsibility in this case. I think what
30:06
Speaker 4: we're seeing here too, is, as I talked to some
30:08
Speaker 4: legal experts, is that if the judges are feeling that
30:10
Speaker 4: they're not getting adequate responses from these Justice Department lawyers
30:14
Speaker 4: in their court, that they may start ordering high ranking
30:18
Speaker 4: immigration officials to appear in federal court. As what happens
30:22
Speaker 4: in a lot of these cases, the Justice Department sort
30:24
Speaker 4: of functions as the law firm of the federal government.
30:27
Speaker 4: If the DHS is facing an order or a lawsuit,
30:31
Speaker 4: the Justice Department is representing them in court and they
30:34
Speaker 4: are making appearances on their behalf. Well. If the judges
30:39
Speaker 4: feel like they're not getting adequate or sufficient answers to
30:42
Speaker 4: their questions, the next step could be ordering some of
30:45
Speaker 4: these officials from these agencies to appear in their court right.
30:49
Speaker 2: And there's been one instance of that already where a
30:52
Speaker 2: federal judge in Chicago ordered Border Patrol Commander Greg Beveno
30:59
Speaker 2: to heer in court regarding the use of force, including
31:04
Speaker 2: tear gas, during the Operation Midway Blitz in Chicago. So
31:10
Speaker 2: something like that might happen more often in the future. Also,
31:13
Speaker 2: in the past, the Justice Department has been seen as
31:18
Speaker 2: a separate entity from the White House. There's been a
31:21
Speaker 2: sort of independence, but with the Trump administration, that separation
31:27
Speaker 2: seems to be dissolving or completely gone right.
31:32
Speaker 4: And I think with respect to the conversation we're having
31:35
Speaker 4: about the unitary executive theory, I think it's completely gone
31:37
Speaker 4: under this theory that the Attorney General and the Justice
31:40
Speaker 4: Department is accountable to the president and that they are
31:43
Speaker 4: to implement the orders of the president. I think they
31:46
Speaker 4: have been the most explicit in terms of, you know,
31:49
Speaker 4: saying that they're the president's lawyers and making assertions such
31:53
Speaker 4: as that that really no other administration has.
31:56
Speaker 2: And you talk to someone who said, the next issue
31:59
Speaker 2: to come up might have to do with immigration judges.
32:03
Speaker 4: Yes, So that's really interesting because that's that's a similar
32:08
Speaker 4: sort of dynamic with the Justice Department. Immigration judges are
32:12
Speaker 4: within an office actually within the Justice Department, so they're
32:16
Speaker 4: under the executive branch, but they've traditionally been fairly insulated
32:21
Speaker 4: from presidential pressure. But the next issue to come up,
32:25
Speaker 4: as we see the administration pushed to overall the immigration
32:28
Speaker 4: court system and a point what they've termed deportation judges
32:32
Speaker 4: sort of might erase the idea that some of these
32:35
Speaker 4: judges are neutral arbiters, or at least, you know, give
32:38
Speaker 4: rise to the question of how neutral these judges are.
32:42
Speaker 4: And so The point that a lawyer had made to
32:45
Speaker 4: me is that defense advocates are likely to argue these
32:48
Speaker 4: judges are less independent than they've ever been and could
32:52
Speaker 4: put more scrutiny on maybe some of the warrants or
32:55
Speaker 4: decisions that they're issuing. If they are appealed, Y're challenged
32:59
Speaker 4: in the federal system.
33:01
Speaker 2: Yeah, calling them deportation judges is not exactly the look
33:04
Speaker 2: that you would expect from a judge who's supposed to
33:07
Speaker 2: be unbiased. Thanks so much for joining me, Justin. That's
33:11
Speaker 2: Bloomberg Law Supreme Court reporter Justin Wise, and that's it
33:15
Speaker 2: for this edition of the Bloomberg Law Show. Remember you
33:18
Speaker 2: can always get the latest legal news on our Bloomberg
33:21
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33:24
Speaker 2: and at www dot Bloomberg dot com, slash podcast slash Law,
33:30
Speaker 2: and remember to tune into The Bloomberg Law Show every
33:32
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,
33:36
Speaker 2: and you're listening to Bloomberg