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Musk’s Third Party—Plus, the Birthright Citizenship Class Action | Start Making Sense · The Nation Podcasts

0:08
[SPEAKER_02]: From the nation magazine, this is Start Making Sense.
0:11
[SPEAKER_02]: I'm John Weiner.
0:13
[SPEAKER_02]: Later in the show, if the Supreme Court won't overrule Trump on abolishing birthright citizenship, it's hard to imagine them saying no to anything he wants.
0:25
[SPEAKER_02]: We'll talk about that with David Cole, former legal director of the ACLU, he'll explain why the Supreme's will say no to him when they get the new birthright citizenship class action case.
0:38
[SPEAKER_02]: But first, Elon Musk is starting his own political party to challenge Trump.
0:44
[SPEAKER_02]: Will that work?
0:52
[SPEAKER_02]: There's trouble in Trump world.
0:54
[SPEAKER_02]: Elon Musk, the world's richest man, is launching a third party to challenge Trump's Republicans in the midterms and maybe in twenty twenty eight.
1:03
[SPEAKER_02]: He says the Republicans passing Trump's budget, he called it this insane spending bill.
1:09
[SPEAKER_02]: Convinced him that, quote, our country needs an alternative to the Democrat Republican Uniparty so that the people actually have a voice in all caps.
1:20
[SPEAKER_02]: He's calling it the American Party.
1:22
[SPEAKER_02]: The polls show a lot of support, at least in the abstract for a new third party, last October.
1:28
[SPEAKER_02]: Fifty-eight percent said the two parties, quote, do such a poor job representing people that a third party was needed.
1:37
[SPEAKER_02]: And for years, most independence have said third party is needed.
1:41
[SPEAKER_02]: Last year it was sixty-nine percent of independence.
1:45
[SPEAKER_02]: For comment we turn to Maurice Mitchell, he's national director of the working family's party.
1:51
[SPEAKER_02]: We saw him recently with Amy Goodman on Democracy Now, talking about mom Donnie's victory in the Democratic primary for Mayor of New York City.
1:59
[SPEAKER_02]: Maurice Mitchell, welcome to the program.
2:02
[SPEAKER_02]: It's good to be here.
2:04
[SPEAKER_02]: Well, is the working family's party a third party?
2:08
[SPEAKER_03]: Yes, we are.
2:09
[SPEAKER_03]: We're a nationwide bottom-up third party movement.
2:14
[SPEAKER_03]: We started twenty-six years ago in New York leveraging fusion voting so that we could have ballot access as a third party.
2:21
[SPEAKER_02]: And it's explained fusion voting for those of us who live in states like California where fusion voting is banned.
2:28
[SPEAKER_03]: Sure.
2:29
[SPEAKER_03]: I mean, it used to be the law of the land.
2:30
[SPEAKER_03]: It was very, very popular in the United States.
2:33
[SPEAKER_03]: Usually voting allows parties to cross and doors the candidates of others.
2:37
[SPEAKER_03]: So in twenty twenty, Joe Biden wasn't our first choice or our second choice.
2:41
[SPEAKER_03]: It was our third choice.
2:42
[SPEAKER_03]: And we endorsed him against against Donald Trump in twenty twenty four.
2:47
[SPEAKER_03]: We endorsed Kamala Harris against Donald Trump.
2:50
[SPEAKER_03]: And our voters in New York and Connecticut were able to vote on the working families party line for those candidates.
2:57
[SPEAKER_03]: And what it allows us to do is to be able to signal a very specific message.
3:03
[SPEAKER_03]: Yes, in this binary between Donald Trump and Kamla Harris, no question.
3:09
[SPEAKER_03]: We'll be alignment Harris.
3:11
[SPEAKER_03]: And we have some notes.
3:13
[SPEAKER_03]: We disagree with her on her.
3:15
[SPEAKER_03]: policies around Gaza, and her relationship to unions, we wanted to be stronger, and we're able to say all those things through the working family's party, battle lines, so hundreds of thousands of people in those states are able to vote their conscience while being strategic voters against the right wing in the general election.
3:36
[SPEAKER_03]: And also, we as a party are able to cycle our cycle year after year.
3:40
[SPEAKER_03]: Build our strength, build our name recognition, build our party brand and organize on the local level so that more and more voters are able to come together and use their voter power to signal that.
3:53
[SPEAKER_03]: And then up and down the ballot, it has a real impact.
3:55
[SPEAKER_03]: So post election.
3:58
[SPEAKER_03]: when our candidates, but prefer candidates when, all the way from president down to city council, we're able to say this specific amount of voters voted for you.
4:09
[SPEAKER_03]: And oftentimes, we're the difference maker.
4:12
[SPEAKER_03]: There are congressional races where the working family's party voters were the difference makers.
4:17
[SPEAKER_03]: There are city council elections where the working family's party voters were the difference maker.
4:24
[SPEAKER_03]: And that absolutely allows us to leverage that when it comes time to govern.
4:29
[SPEAKER_02]: Now what Musk has in mind is what most people think of as a third party running separate candidates, not endorsing candidates on a separate line.
4:41
[SPEAKER_02]: And it did happen once before that a single rich person launched a third party campaign
4:47
[SPEAKER_02]: against deficit spending, same issue, got on the ballot in all fifty states, took votes from the incumbent Republican.
4:54
[SPEAKER_02]: That was Ross Perro in nineteen ninety two, ran as an independent against George H.W.
5:01
[SPEAKER_02]: Bush, got almost twenty percent
5:03
[SPEAKER_02]: That's the most any third party candidate has gotten since Theodore Roosevelt in nineteen twelve.
5:09
[SPEAKER_02]: Parode did not run any candidates for House or Senate.
5:14
[SPEAKER_02]: It was just a presidential campaign.
5:16
[SPEAKER_02]: Now Elon Musk can't do that.
5:18
[SPEAKER_02]: He can't run for president.
5:19
[SPEAKER_02]: He wasn't born in the United States.
5:21
[SPEAKER_02]: But do you think a Musk third party effort focused on some House and Senate seats could have some success starting with the midterms next year?
5:32
[SPEAKER_03]: You might be surprised at my skepticism.
5:36
[SPEAKER_03]: And so he's doing, you know, what we call the Ross Pro play right at the working family's party.
5:41
[SPEAKER_03]: It's a top down billionaire backed strategy.
5:45
[SPEAKER_03]: We've seen it fail.
5:47
[SPEAKER_03]: Ross, like you, right, Ross Pro didn't break twenty percent.
5:50
[SPEAKER_03]: You got to run nineteen percent.
5:52
[SPEAKER_03]: And then
5:53
[SPEAKER_03]: He ran again and he got less votes.
5:55
[SPEAKER_03]: He got eleven million less votes in nineteen ninety six.
5:59
[SPEAKER_03]: And so to me, it's a strategy that is kind of like a spectacle.
6:03
[SPEAKER_03]: It's like a, it's more of a communication strategy versus a mysterious organizing strategy.
6:10
[SPEAKER_03]: If you're going to build a third party in America, we believe you have to work from the bottom up.
6:16
[SPEAKER_03]: And then also when you think about who Elon Musk is, right?
6:21
[SPEAKER_03]: You know, he, you know, he has this track record of making really bold promises and predictions and he tends not to deliver on them.
6:28
[SPEAKER_03]: They tend to kind of, you know, fall through.
6:30
[SPEAKER_03]: I mean, I don't know, like he said that humans will be on Mars by twenty twenty six.
6:36
[SPEAKER_03]: Now granted, it's not twenty twenty six yet.
6:39
[SPEAKER_03]: So he has a few months, right?
6:42
[SPEAKER_03]: I mean, he also said that there'll be a hundred million robot taxis, you know, by twenty twenty and maybe
6:50
[SPEAKER_03]: Maybe they are, and I would see them.
6:53
[SPEAKER_03]: But you know, the other thing about Musk, like what do we know about Musk?
6:59
[SPEAKER_03]: He has a hard time, you know, with his attention span.
7:02
[SPEAKER_03]: And so this is something that's fascinating him today.
7:06
[SPEAKER_03]: What we've learned over twenty six years is that the way to build third party politics
7:11
[SPEAKER_03]: In our very rigid two party system is it's a generational process and you have to really look at the long haul and we have no problem with third party candidacies on the in the general election.
7:22
[SPEAKER_03]: I mean, just James famously got her entrance into politics as running as a WP only candidate for city council in Brooklyn, right?
7:31
[SPEAKER_03]: It can be done.
7:32
[SPEAKER_03]: but not on the presidential level and not through a billionaire and his money.
7:36
[SPEAKER_03]: It's like billionaire plus money plus crazy idea.
7:39
[SPEAKER_03]: It does not equal a third party.
7:41
[SPEAKER_03]: So I would just, I'm highly skeptical.
7:43
[SPEAKER_03]: I'm also billionaires have their choice of two of the parties already.
7:48
[SPEAKER_03]: We don't need a third billionaire party.
7:50
[SPEAKER_02]: You know, okay, must, however, seems to have thought about the Paro campaign, or at least somebody is told them about it.
7:57
[SPEAKER_02]: And this has a plan
7:59
[SPEAKER_02]: that is different from the Paro player that's not completely crazy.
8:05
[SPEAKER_02]: He does not want to run candidates everywhere.
8:07
[SPEAKER_02]: He's aiming for what he calls surgical disruption of the two parties system by targeting just a handful of key races.
8:16
[SPEAKER_02]: Two or three Senate seats, eight or ten house districts, his goal is to flip just enough seats to hold the balance of power in the next Congress so that there could be a swing block in a closely divided Senate in house.
8:32
[SPEAKER_02]: And they could be the deciding force in passing legislation, especially on spending in taxes.
8:39
[SPEAKER_02]: We even know what state he's thinking about.
8:42
[SPEAKER_02]: The Senate seat in Michigan has been being vacated by a Democrat, Gary Peters.
8:49
[SPEAKER_02]: It's kind of a fifty-fifty state.
8:51
[SPEAKER_02]: In Georgia, Democrat John Ossoff is up for reelection and the Republicans don't have a strong candidate to challenge him.
8:59
[SPEAKER_02]: In North Carolina, famously, Tom Tillis Republican is stepping down after clashing with Trump overspending.
9:06
[SPEAKER_02]: And in the House,
9:08
[SPEAKER_02]: Just to run this down briefly, the Cook Political Report lists, eighteen toss-ups eats, Musk is looking just at eight supposedly.
9:16
[SPEAKER_02]: My favorite is, he says he wants to target at least the phonic in that corner of New York state up there by Vermont and Canada.
9:24
[SPEAKER_02]: Would be great to see her defeated.
9:27
[SPEAKER_02]: He also wants to run somebody in, uh, he wants to challenge, uh, Marcie Kepter, the Democrat in Toledo and longest serving woman in congressional history, seventy nine years old to serve forty two years.
9:42
[SPEAKER_02]: So he's got some ideas that aren't completely crazy about how to get power.
9:48
[SPEAKER_02]: in a closely divided Congress.
9:51
[SPEAKER_02]: So it's not like parole.
9:53
[SPEAKER_03]: Sure, those are all they're interesting theoretical ideas, but when you bring it into the world as it is, and you imagine if the medium voter in any of these districts have an appetite for a holy billionaire bat, race scientist bat, Elon Musk,
10:15
[SPEAKER_03]: sort of fever-dream play, right?
10:18
[SPEAKER_03]: You know, like, look, the voters of Wisconsin didn't just reject maga and the Republicans and the prospect of a conservative majority in their Supreme Court.
10:33
[SPEAKER_03]: They also rounded roundly rejected Elon Musk and the idea that our politics should be completely and wholly captured by all of our
10:42
[SPEAKER_02]: That's a great example.
10:43
[SPEAKER_02]: The Wisconsin Supreme Court case where Musk put in what?
10:49
[SPEAKER_02]: Twenty or twenty five million dollars.
10:51
[SPEAKER_02]: No one had ever done anything like that before in any state Supreme Court race.
10:55
[SPEAKER_02]: And campaigned personally himself.
10:58
[SPEAKER_02]: There was that rally in Green Bay where he ended up speaking for two hours and barely mentioned the candidate.
11:05
[SPEAKER_02]: And the candidate had lost by ten points.
11:07
[SPEAKER_02]: The Republican lost by ten points in the state that
11:11
[SPEAKER_02]: It is basically a fifty fifty state.
11:12
[SPEAKER_02]: So you're absolutely right.
11:14
[SPEAKER_02]: What's constant shows that must himself is a terrible political leader in candidate.
11:22
[SPEAKER_02]: Plan seems to be though to get quote better candidates than himself.
11:28
[SPEAKER_03]: I feel like that's like this.
11:29
[SPEAKER_03]: distinction with that a difference because ultimately they will be candidates for the holy Elon Musk backed quote when American party and they will immediately be drawn down by all of the baggage that comes with Elon Musk.
11:46
[SPEAKER_03]: I think most voters
11:49
[SPEAKER_03]: including the Republican Party primary voter are not likely drawn to the very bizarre politics of Elon Musk.
12:00
[SPEAKER_03]: And what we've seen, and we've been a third party for twenty-six years.
12:04
[SPEAKER_03]: And we've grown in every one of those twenty-six years.
12:07
[SPEAKER_03]: We started in New York.
12:09
[SPEAKER_03]: We now do politics all across the country.
12:11
[SPEAKER_03]: We endorse close to a thousand candidates up and down the ballot everywhere.
12:16
[SPEAKER_03]: That voters aren't stupid.
12:18
[SPEAKER_03]: There are some basic core American values, and I think we saw them in Wisconsin.
12:25
[SPEAKER_03]: Most voters, when they understand that their votes are being bought, reject that.
12:32
[SPEAKER_03]: So I could already imagine the ads that will be played against his candidates.
12:38
[SPEAKER_03]: I could picture two or three really good ones.
12:41
[SPEAKER_03]: You know, apparently, according to the Supreme Court, he's entitled to do anything he wants to do politically with his money.
12:46
[SPEAKER_03]: But, you know, there's a ceiling on that.
12:48
[SPEAKER_03]: We saw that also in New York City.
12:51
[SPEAKER_03]: And this is another example of where billionaires and their hubris come up against the will of everyday working people.
13:00
[SPEAKER_03]: They spent twenty five million dollars against the working families party.
13:05
[SPEAKER_03]: Our ideals against directly against the Romandani in order to ramp through a form of victory in the New York City primary for mayor and ultimately, you know, the people of New York rejected the big money politics.
13:19
[SPEAKER_03]: I mean, if you were a voter in New York, I mean, you couldn't watch
13:24
[SPEAKER_03]: TV, you couldn't stream on any of the platforms without getting all of the scary imagery about Zoram, I'm Donnie, people rejected it.
13:33
[SPEAKER_03]: And so there's a point where big money can't Trump the power of organizing and good ideas, and just like the basic decency of everyday American voters.
13:45
[SPEAKER_02]: And there's one other issue.
13:47
[SPEAKER_02]: Musk seems to be a kind of a single issue campaign that he has in mind here.
13:52
[SPEAKER_02]: Deficit spending reduced the deficit, which means.
13:56
[SPEAKER_02]: Cut spending or raise taxes.
13:58
[SPEAKER_02]: Is that a winning issue in swing districts in America?
14:02
[SPEAKER_03]: Look, I mean, you're laughing.
14:06
[SPEAKER_03]: There are certain issues and platforms that are really powerful, debated, really popular in two places, corporate sea streets, and in the halls of Congress.
14:21
[SPEAKER_03]: One of them is this obsession with deficit spending.
14:24
[SPEAKER_03]: There is no constituency in America that is electrically significant, let's say, that votes on this abstract idea around deficit spending.
14:35
[SPEAKER_03]: What we've done is we've gone on, we've talked to working people.
14:38
[SPEAKER_03]: What they care about is affordability.
14:40
[SPEAKER_03]: What they're concerned with as a relates to their government is they want a government that works for them.
14:45
[SPEAKER_03]: And so what that means is they don't want government to do less.
14:49
[SPEAKER_03]: They want government to do more.
14:51
[SPEAKER_03]: Consistently, the American people, independence, Democrats, Republicans want government to do more for them.
14:59
[SPEAKER_03]: And they want a government that is effective.
15:02
[SPEAKER_03]: which means they're not interested in abstract ideas around efficiency.
15:08
[SPEAKER_03]: Sure, efficiency sounds good, but in practice, if it means that you're actually taking away the needed programs and the services of the government, the people reject that.
15:18
[SPEAKER_03]: And so if he plans on running on doge and more doge, I think he's going to find that there's not going to be an appetite by very many voters for that.
15:29
[SPEAKER_03]: What people have experienced that to be is chaos.
15:34
[SPEAKER_03]: The voters don't like chaos.
15:36
[SPEAKER_03]: It's hard working, government workers who provide services, losing their jobs.
15:41
[SPEAKER_03]: It turns out voters don't like that.
15:43
[SPEAKER_03]: It turns out people don't like that.
15:45
[SPEAKER_03]: So if he's going to run on his record and he's going to run on deficit spending and doing more of what Doge has done,
15:53
[SPEAKER_03]: And he attaches his candidates to that.
15:55
[SPEAKER_03]: They're going to run on with this albatross of Elon Musk, his horrible recording government, his obsession with deficit spending at a time when people are concerned with affordability.
16:07
[SPEAKER_03]: That seems like a very, or recipe for politics in this moment where
16:13
[SPEAKER_03]: People are frustrated with across the board with the oligarchs.
16:18
[SPEAKER_03]: They've had it with the billionaire class.
16:19
[SPEAKER_03]: People want the government to do more or not less and people want a politics that focuses like a laser on affordability, helping them to afford rent, childcare, healthcare, at a time where working people are struggling and feel like they're trying to overcome a mountain of medical debt and college debt.
16:41
[SPEAKER_03]: And just trying to get by right now in most cities, it's hard for even people who feel like they're solidly middle class and get by.
16:48
[SPEAKER_03]: And if you could imagine all the people who are struggling even to enter the middle class, but just like the majority of Americans, I just don't see there to be appetite.
16:58
[SPEAKER_03]: Yeah, abstract people do want more options.
17:01
[SPEAKER_03]: abstractly, people do want more choice.
17:04
[SPEAKER_03]: I think the particular choice, instead of the Democratic Party, which is partially all-of-gark inspired and the Republican Party, which is wholly all-of-gark inspired.
17:14
[SPEAKER_03]: This one is like, run by one all-of-gark.
17:17
[SPEAKER_03]: There you have, you have options.
17:20
[SPEAKER_02]: There is one more significant third party candidate on the scene right now Andrew Cuomo for mayor of New York City in November.
17:31
[SPEAKER_02]: I know that WFP was a big organizer for mom Donnie in the Democratic Party primary, of course, where he defeated
17:39
[SPEAKER_02]: Cuomo, the favorite of the party establishment, as you said, they spent twenty five million dollars trying to get a mom donnie defeated now Cuomo has declared he will remain in the race running on what's his line called the fight and deliver party and
17:58
[SPEAKER_02]: He's got a scheme here.
18:00
[SPEAKER_02]: I don't know if this will work, but there seems to be a pack shaping up between all the other challengers to block Momb Downey that the other challengers agree they will drop out if they are not the top anti-Momb Downey candidate.
18:15
[SPEAKER_02]: with the most support in the polls in mid-September.
18:18
[SPEAKER_02]: That's Mayor Eric Adams.
18:20
[SPEAKER_02]: He's running on the end anti-Semitism party line and the safe and affordable party line.
18:27
[SPEAKER_02]: This is ultimately in New York, a kind of a story.
18:30
[SPEAKER_02]: Cuomo himself is running as the candidate of the fight and deliver party
18:35
[SPEAKER_02]: Curtis Lee was running as a Republican, Jim Walden as an independent.
18:39
[SPEAKER_02]: What do you think of this pact shaping up to block a Mombani victory in November?
18:46
[SPEAKER_03]: Well, you know, vote blue and about a who, right?
18:52
[SPEAKER_03]: Remember that?
18:55
[SPEAKER_03]: Knowing Andrew Cuomo and knowing him to be singularly obsessed with power and being animated like few others by ambition, by his path to the presidency, I'm not surprised that he's found another path.
19:13
[SPEAKER_03]: Look, we are witnessing every single day, more and more labor unions.
19:19
[SPEAKER_03]: more and more elected officials from across the coalition, the pro-democracy coalition.
19:25
[SPEAKER_03]: Consolidate Iran-Zoram, I'm Dani.
19:27
[SPEAKER_03]: That's where the momentum is.
19:29
[SPEAKER_03]: He continues to campaign.
19:31
[SPEAKER_03]: We continue to campaign with him.
19:33
[SPEAKER_03]: Between now and November, we anticipate making clear to the people of New York.
19:39
[SPEAKER_03]: that there is an opportunity on the ballot to move forward.
19:43
[SPEAKER_03]: And we think that that's what most people want.
19:45
[SPEAKER_03]: There's an opportunity on the ballot to get away from the politics, the very downward politics of Andrew Cuomo and Mayor Adams and actually focus on their affordability.
19:58
[SPEAKER_03]: And so those contrasts
20:00
[SPEAKER_03]: If it's two contrasts with three contrasts with five contrasts, politics has often about contrast.
20:05
[SPEAKER_03]: Those contrasts aren't necessarily that for us.
20:08
[SPEAKER_03]: And we plan to engage in a very rigorous set of conversations with New Yorkers, including the ones that voted for Zoran in the primary.
20:18
[SPEAKER_03]: And all the others that are now waking up to a new set of politics, because it's been seismic and are very, very curious about the values of Zoran's campaign.
20:28
[SPEAKER_03]: how we plan to govern the city of New York and the coalition that he's going to build around around him.
20:33
[SPEAKER_03]: So look, in most normal politics, you would imagine that people would consolidate around the candidate.
20:41
[SPEAKER_03]: But again, the clown car that they want to assemble inside of, they're more than happy to.
20:48
[SPEAKER_03]: And I think we're feeling pretty bullish about the argument that we're going to make in November.
20:52
[SPEAKER_02]: Maurice Mitchell, he's national director of the working family's party.
20:57
[SPEAKER_02]: Mo, thanks for talking with us today.
20:59
[SPEAKER_03]: Good to be with you.
21:13
[SPEAKER_02]: It's been a bad week for Donald Trump.
21:16
[SPEAKER_02]: His mega base is in an uproar over his denials about a Jeffrey Epstein client list.
21:22
[SPEAKER_02]: His tariffs are increasingly chaotic and unpopular.
21:26
[SPEAKER_02]: His bromance with Putin seems to be over
21:29
[SPEAKER_02]: And in the courts, we have a new nationwide injunction blocking his efforts to abolish birthright citizenship and an injunction against ICE in Los Angeles, Trump's ground zero for attacking immigrants.
21:44
[SPEAKER_02]: For comment on the court rulings, we turned to David Cole.
21:47
[SPEAKER_02]: He recently stepped down after eight years as National Legal Director of the ACLU to return to teaching law at Georgetown.
21:55
[SPEAKER_02]: He writes for The New York Times, The Washington Post, and The New York Review in his legal affairs correspondent for The Nation.
22:02
[SPEAKER_02]: David, welcome back.
22:04
[SPEAKER_00]: Thanks for having me, John.
22:05
[SPEAKER_02]: Well, Trump's executive order, abolishing birthright citizenship, is unconstitutional.
22:12
[SPEAKER_02]: Pretty much everybody agrees about that, including even the Wall Street Journal editorial page.
22:17
[SPEAKER_02]: And maybe, maybe even the Supreme Court.
22:20
[SPEAKER_02]: It's the simplest case where the court should say no to Trump.
22:24
[SPEAKER_02]: And if they don't do that, it's hard to imagine they would say no to do anything.
22:30
[SPEAKER_02]: The court this term had a chance to say no to Trump on abolishing birthright citizenship.
22:36
[SPEAKER_02]: His order had been blocked temporarily by a nationwide injunction issued by a district court, which cited the Fourteenth Amendment, which explicitly says if you're born in the United States, you're a citizen of the United States.
22:52
[SPEAKER_02]: But instead of settling the case at that point, the Supreme Court left it open and instead issued a sweeping ruling on a related issue, striking down nationwide injunctions issued by district courts, including this one.
23:10
[SPEAKER_02]: But the court did point to one alternative they said would be acceptable for nationwide injunctions, class action suits.
23:19
[SPEAKER_02]: So the ACLU filed one the same day and then a district court, as they say, certified the class.
23:28
[SPEAKER_02]: Please explain what that means and where we stand today.
23:32
[SPEAKER_00]: Sure, so the previous cases that had been filed against the birthright citizenship executive order were not class actions.
23:41
[SPEAKER_00]: They were suits on behalf of one of them was on behalf of an organization that had a number of immigrants who were members and they sued on their behalf.
23:51
[SPEAKER_00]: Some states sued saying they had obligations to citizens and they had to determine who is a citizen and this sort of upended that.
24:00
[SPEAKER_00]: And in those cases, the courts found the order on constitutional and enjoyed it.
24:06
[SPEAKER_00]: nationally, not just as to the parties before the court.
24:11
[SPEAKER_00]: And what the Supreme Court said was, you can't do that.
24:14
[SPEAKER_00]: The court has the power to issue injunctive relief for the parties before it and not to parties that are not before it, but if it has the proper parties before it, it can issue a nationwide
24:31
[SPEAKER_00]: injunction and in particular if there was a nationwide class if the suit was brought essentially on behalf of all people in the country who would be subject to this order and that's an appropriate class then the court can issue relief to that entire class and so actually that decision came out on a I don't know Thursday or Friday I can't remember now
24:58
[SPEAKER_00]: But within hours, the ACLU had filed a class action in New Hampshire, and that has now been certified, and the judge has now granted a nationwide injunction to that class.
25:12
[SPEAKER_00]: So that's very likely to go back up to the Supreme Court, but nothing in the decision that the court rendered earlier this summer would bar relief in that case.
25:24
[SPEAKER_02]: The response of the Trump administration was that the New Hampshire judge was wrong because, quote, the American people voted for this agenda, close quote.
25:34
[SPEAKER_02]: Is that the basis on which judges make decisions?
25:38
[SPEAKER_00]: I don't think so.
25:39
[SPEAKER_00]: It's the Constitution, Mr. President, and the Constitution says, if you are born here, you are a citizen, as long as your parents are subject to the jurisdiction of the United States.
25:50
[SPEAKER_00]: And pretty much everybody except for diplomats are subject to the jurisdiction of the United States.
25:58
[SPEAKER_00]: And I have no doubt you suggest that you thought maybe this Supreme Court would rule the birthright citizenship
26:05
[SPEAKER_00]: order on Constitution.
26:06
[SPEAKER_00]: I actually have no doubt.
26:07
[SPEAKER_00]: This court will strike it down as unconstitutional when it comes before.
26:12
[SPEAKER_00]: In a proper case, and I think one of the reasons that the Trump administration only appealed to the Supreme Court on the scope of relief question, the nationwide injunction question, and not on the
26:24
[SPEAKER_00]: You know, the merits of the birthright citizenship was because they realized they're very likely to lose on that ground that didn't want to go up on the first, you know, first major case and lose.
26:35
[SPEAKER_02]: The Trump spokesman.
26:37
[SPEAKER_02]: Also said the judge who certified the class for birthright citizenship was quote not paying attention to the Supreme Court ruling in this case close quote do agree with that I think whoever made that statement was not paying attention to the Supreme Court ruling in this case because the Supreme Court expressly said
26:58
[SPEAKER_00]: that if there's a proper class action, you can have nationwide relief.
27:01
[SPEAKER_00]: And they also left open other avenues for nationwide relief.
27:05
[SPEAKER_00]: And particular, they said if the states can show that in order to get complete relief for the states, a nationwide injunction is necessary, it's appropriate.
27:14
[SPEAKER_02]: So what are the next steps now with the birthright citizenship class action?
27:21
[SPEAKER_02]: Does this just go to the Supreme Court next term and they'll decide?
27:25
[SPEAKER_00]: Well, I think it's sort of up to the Trump administration.
27:28
[SPEAKER_00]: They have the right to seek an emergency stay of this district court injunction first from the court of appeals and then from the Supreme Court.
27:37
[SPEAKER_00]: And that could all be done this summer.
27:40
[SPEAKER_02]: Now that the rules about what a class action suit has to be are very well established.
27:47
[SPEAKER_02]: It's a very familiar part of litigation.
27:50
[SPEAKER_02]: if the Trump administration challenges the certification of a class in this case has the court met the requirements for what makes for a class action case.
28:02
[SPEAKER_00]: That's a great question.
28:03
[SPEAKER_00]: That will be the issue I think going up is this is appropriate class.
28:08
[SPEAKER_00]: I think it's a pretty clear example of an appropriate class where basically everybody who's subject to the law
28:18
[SPEAKER_00]: is subject to the law in the same way and for the same reason and therefore the claims are all identical and in that context where you're seeking an injunction against a national policy and that national policy affects
28:35
[SPEAKER_00]: all the people subject to it in the same way a class action is appropriate.
28:39
[SPEAKER_00]: The Supreme Court has made it much more difficult to pursue class actions where you might have differing factual circumstances, employment actions, for example, where different people could be fired for various different reasons, very difficult to get class actions there.
28:56
[SPEAKER_00]: But on this kind of a case where it's a
28:59
[SPEAKER_00]: challenge to a rule that applies the same way to every person to whom it is applied.
29:03
[SPEAKER_00]: I think this is a strong case.
29:05
[SPEAKER_00]: I think the injunction will be affirmed when it goes up.
29:08
[SPEAKER_02]: Let's go back to the ban on nationwide injunctions issued by district courts.
29:14
[SPEAKER_02]: And a lot of our friends said this ruling was a total disaster.
29:19
[SPEAKER_02]: It's a tremendous help to Trump and a blow to all the rest of us.
29:24
[SPEAKER_02]: But there are a few things people need to know about that.
29:28
[SPEAKER_02]: I just want to clarify.
29:30
[SPEAKER_02]: This band does not apply retroactively to the existing nationwide injunctions blocking Trump.
29:37
[SPEAKER_02]: Isn't that right?
29:37
[SPEAKER_02]: They're over a hundred of them and they stay in in force.
29:41
[SPEAKER_02]: Those injunctions blocking Trump's executive orders remain in effect till they are litigated if the Trump administration brings them back to court.
29:51
[SPEAKER_02]: Isn't that right?
29:52
[SPEAKER_00]: Yes, and it is a Supreme Court precedent on the appropriate
29:57
[SPEAKER_00]: circumstances in which district courts can issue nationwide relief.
30:02
[SPEAKER_00]: And so, yes, there are a number of other nationwide injunctions against Trump.
30:07
[SPEAKER_00]: Trump can now go back in, he will have to go back in in those cases to raise those claims.
30:13
[SPEAKER_00]: But if he goes in and raises those claims in many circumstances, he'll have a decent argument that can be made.
30:20
[SPEAKER_00]: But what the court, again, what the court said was, the court's power to issue injunctions is limited to the parties before it.
30:28
[SPEAKER_00]: And so there's two ways in which you can get a nationwide injunction.
30:31
[SPEAKER_00]: If the parties before you are a nationwide class, that is, it's a class of people across the country,
30:37
[SPEAKER_00]: then you can the court can afford relief to those parties.
30:40
[SPEAKER_00]: And the second way is if providing relief to the parties before the court requires nationwide relief in order to afford the parties before the court complete relief
30:51
[SPEAKER_00]: It's appropriate to issue a nationwide injunction.
30:54
[SPEAKER_00]: And that issue was present in the Supreme Court case, and they sent it back down to the lower courts with respect to the states, saying the lower courts will have to decide in the first instance whether this in order to provide effective relief to the states that sued the court needs to, in effect, provide a national injunction.
31:17
[SPEAKER_00]: And if it's necessary to provide complete relief
31:20
[SPEAKER_00]: It's permissible.
31:21
[SPEAKER_00]: So yes, Trump can go back into any court where there's a nationwide injunction and challenge that injunction, but the Supreme Court and Trump versus Cossett laid out a number of avenues that permit lower courts to issue nationwide injunctions when
31:39
[SPEAKER_00]: the proper plaintiffs are before them or when the relief is necessary.
31:42
[SPEAKER_00]: So I don't think it's as outrageous a decision as many people have said.
31:48
[SPEAKER_00]: I don't think there's still plenty of ways to get nationwide relief.
31:53
[SPEAKER_02]: But for example, there has been a nationwide injunction blocking Trump's executive order cutting federal funding to sanctuary cities, cities that refuse to cooperate with ICE.
32:05
[SPEAKER_02]: And Trump's legal team is now, I understand, trying to narrow those injunctions to apply only
32:13
[SPEAKER_02]: to the plaintiff cities.
32:14
[SPEAKER_02]: It was, that was a case that was brought by San Francisco in some Bay Area cities and suburbs.
32:21
[SPEAKER_02]: Now, thirty four more cities and counties have joined that case, including Los Angeles, Chicago, Boston, Denver.
32:31
[SPEAKER_02]: Seems like that courts are likely to say, well, that's appropriate, don't you think?
32:35
[SPEAKER_00]: Exactly.
32:36
[SPEAKER_00]: So that's right.
32:37
[SPEAKER_00]: So it's essentially those who need the relief can just join the case.
32:43
[SPEAKER_00]: as co-plaintives and then they are before the court and the court can
32:47
[SPEAKER_00]: afford them the same relief it is already afforded to San Francisco.
32:51
[SPEAKER_00]: So again, that's another way in which you can extend the relief as you just join other plaintiffs.
32:58
[SPEAKER_00]: So it does put greater burdens on plaintiffs and courts to justify nationwide relief, but it does not block nationwide relief where it is necessary.
33:09
[SPEAKER_00]: And oftentimes, when it is a federal policy that has been
33:15
[SPEAKER_00]: Called into question and the court has found that that federal policy is just across the board Unconstitutional that is a situation which it's appropriate to provide nationwide relief as long as you have a class that represents that the people who would be affected
33:32
[SPEAKER_02]: And hasn't our side complained in the past about nationwide injunctions issued by right wing district court judges.
33:41
[SPEAKER_02]: There's that judge and Texas I remember blocked a vaccination mandate for federal employees.
33:48
[SPEAKER_02]: And we were outraged and said this is misuse of the law.
33:53
[SPEAKER_02]: So this has cuts both ways.
33:56
[SPEAKER_00]: Yeah, absolutely.
33:58
[SPEAKER_00]: When Biden was the president, the right wing legal apparatus used nationwide injunctions to block many of his actions.
34:09
[SPEAKER_00]: The courts today have issued nationwide injunctions to block many of Trump's actions.
34:15
[SPEAKER_00]: And again, what the Supreme Court said was, you just have to have the right parties before you.
34:21
[SPEAKER_00]: And that's sometimes that's actually really hard getting the right parties all together on the same page in the same case.
34:30
[SPEAKER_00]: But where it's appropriate, you can still get nationwide relief.
34:37
[SPEAKER_02]: And I want to talk just briefly about one big immigration case that federal court in Los Angeles that found late Friday afternoon that the federal government's ongoing immigration raids in Los Angeles and around Southern California likely violated the Constitution by singling out Latinos for arrest and detention
35:04
[SPEAKER_02]: on the basis of their race or ethnicity and the federal court prohibited ice from continuing this kind of raid throughout southern California.
35:17
[SPEAKER_02]: This was a case brought by the ACLU of Southern California, along with public council, MDF, and Cheerla, and some other immigrants' rights groups.
35:26
[SPEAKER_02]: And then it was joined later by the city of L.A.
35:28
[SPEAKER_02]: and seven other cities, and L.A.
35:31
[SPEAKER_02]: County.
35:32
[SPEAKER_02]: They argued ICE was arresting people based on their ethnicity and race Latinos, picking up people at car washes, swap meats, day laborers gathered outside home depot,
35:45
[SPEAKER_02]: farm workers in the strawberry fields in Ventura County, just because they looked like Latinos.
35:52
[SPEAKER_02]: And then denied them contact with attorneys, seems like a pretty strong case to me.
35:58
[SPEAKER_00]: Yeah, I think very strong case.
36:01
[SPEAKER_00]: What the way that ice has been carrying out hits enforcement authority is outrageous.
36:07
[SPEAKER_00]: And to treat a looking Latino as illegally in the country,
36:15
[SPEAKER_00]: is just, you know, as basis and particularly in a place like Los Angeles where you have a massive Latino population, many of them citizens, many of them permanent residents, many of them legally here to treat someone as suspect simply because of their ethnicity is
36:33
[SPEAKER_00]: unconstitutional and unethical.
36:36
[SPEAKER_00]: And then to deny the access to counsel, everyone has the right to consult with counsel once they're arrested.
36:43
[SPEAKER_00]: So you had a situation in which ICE was just running rough shot over the rights of these people.
36:49
[SPEAKER_00]: And the courts have said, no, you got to respect their rights.
36:55
[SPEAKER_00]: The Constitution
36:56
[SPEAKER_00]: protects all of us in the United States it protects those who are citizens and those who are not it protects those who are legally here and those who are illegally here the whole idea of due process and of right to counsel is so that we just make the right decisions about who is properly subject to the authority of the state and who is not so a great decision and I hope you know ice will will
37:23
[SPEAKER_00]: will transform and reform its practices.
37:26
[SPEAKER_00]: My guess is that they'll instead appeal and keep engaging in what they're doing, but we'll see.
37:32
[SPEAKER_02]: One last thing what Trump and I started doing is massively unpopular.
37:38
[SPEAKER_02]: People really don't like these raids in LA on residents who've been here for a decade.
37:44
[SPEAKER_02]: We have jobs and families.
37:47
[SPEAKER_02]: The most recent polling on this comes from Gallup where the findings are worse than any poll in Trump's second term.
37:54
[SPEAKER_02]: This is a month-long survey in June.
37:58
[SPEAKER_02]: Americans were asked whether they approve or disapprove of Trump's handling of immigration.
38:03
[SPEAKER_02]: Disapproved, sixty-two percent, approve, thirty-five percent.
38:09
[SPEAKER_02]: And as for strongly approved and strongly disapproved more than twice as many American strongly disapproved, strongly approved.
38:18
[SPEAKER_02]: Forty-five percent strongly disapproved only twenty-one percent strongly approved.
38:24
[SPEAKER_02]: This is especially the case for independence, nearly seventy percent of people who call themselves independent voters.
38:30
[SPEAKER_02]: said they disapproved of what Trump's been doing on immigration.
38:35
[SPEAKER_02]: These are the worst numbers Trump has ever gotten on polls on immigration.
38:40
[SPEAKER_02]: The trend has been clearly a downward.
38:42
[SPEAKER_02]: Another fascinating finding.
38:44
[SPEAKER_02]: A record number of adults say immigration is good for the country.
38:48
[SPEAKER_02]: Seventy nine percent say immigration is good.
38:52
[SPEAKER_02]: Seventy percent say immigration is bad.
38:55
[SPEAKER_02]: And the big change in the last few months has been among Republicans.
38:59
[SPEAKER_02]: Now, sixty-four percent of Republicans say immigrants are good for the country.
39:05
[SPEAKER_02]: The percentage of Americans who say immigration should be reduced has dropped down to thirty percent, the lowest it's been in recent decades.
39:13
[SPEAKER_02]: So the ACLU often does not represent the majority.
39:18
[SPEAKER_02]: Usually they're defending minority rights.
39:21
[SPEAKER_02]: It seems like right now on immigration, the ACLU represents a great majority of Americans.
39:28
[SPEAKER_00]: Well, you know, in some sense, Trump has performed a miracle because for a long time, it seemed like, you know, there was no good politics around immigration, other than being tough on immigration.
39:40
[SPEAKER_00]: And this was a real weakness for the Democrats and one that Trump exploited.
39:45
[SPEAKER_00]: But he clearly has overred his mandate.
39:48
[SPEAKER_00]: He's overreached.
39:50
[SPEAKER_00]: And when you see people, people see people that they know getting caught up in this, they see it on the news, they see ice agents wearing masks, resting college students for writing op-eds in the newspaper.
40:04
[SPEAKER_00]: That kind of overplaying of one's hand.
40:08
[SPEAKER_00]: is precisely the kind of thing that gets Americans, gets their back up and says, wait a minute, we may not have liked the quote unquote chaos at the border, but we didn't want you to be coming into our schools and our churches and into courts and picking up people who are not illegally here, you have gone way too far.
40:29
[SPEAKER_00]: And if it leads to a fundamental restructuring of our politics around immigration,
40:38
[SPEAKER_00]: That would be a great thing.
40:40
[SPEAKER_01]: David Cole, you can read enough to New York Review.
40:43
[SPEAKER_01]: Thank you, David.
40:44
[SPEAKER_01]: This is great.
40:44
[SPEAKER_01]: Thanks John.
40:52
[SPEAKER_02]: You've been listening to start making sense of podcast from the nation magazine, recorded in Los Angeles at our Blight Avenue Studios.
41:00
[SPEAKER_02]: Renee Reynolds is our associate producer, Alan Minski is our producer.
41:05
[SPEAKER_02]: Ludwig Hurtado is executive producer.
41:08
[SPEAKER_02]: D.D.
41:08
[SPEAKER_02]: Gutton playing as editor of the nation, Bosca Shunkara is president of the nation, and Katrina Vandenhuvul is publisher and editorial director of the nation.
41:18
[SPEAKER_02]: Our theme music is from Barcelona, Afro-Beep, licensed by Creative Commons.
41:23
[SPEAKER_02]: You can find out more about start making sense at TheNation.com.
41:28
[SPEAKER_02]: And you can subscribe to start making sense on Apple podcasts or wherever you get your podcasts.
41:35
[SPEAKER_02]: I'm John Weener.
41:37
[SPEAKER_02]: Thanks for listening.