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Musk's Role Ruled Unconstitutional & Birthright Citizenship · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: The Trump administration is facing more than one hundred and
0:12
Speaker 2: fifty cases across the country challenging its actions, and many
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Speaker 2: of the cases involve actions by Elon Musk and DOGE,
0:20
Speaker 2: which has moved swiftly to fire tens of thousands of
0:24
Speaker 2: federal workers, cancel Granson contracts, and generally dismantle the federal government.
0:29
Speaker 2: The administration has contended in court that Musk isn't the
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Speaker 2: head of DOGE and doesn't have authority to make decisions
0:37
Speaker 2: at agencies. But remember when President Trump gave a shout
0:41
Speaker 2: out to Musk during his joint address to Congress this month, I.
0:46
Speaker 1: Have created the brand new Department of Government Efficiency Dog.
0:52
Speaker 1: Perhaps you've heard of it. Perhaps Rich is headed by
1:00
Speaker 1: Elon must poison the gallery.
1:02
Speaker 2: Tonight, Well, Federal Judge Theodore Schwanng remembers and cited that
1:07
Speaker 2: in the first major ruling to find that Musk likely
1:11
Speaker 2: exercised unconstitutional power in orchestrating the Trump administration's efforts to
1:17
Speaker 2: shutter the US Agency for International Development. Joining me is
1:22
Speaker 2: constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike.
1:27
Speaker 2: USAID was the first agency that Musk took his chainsaw
1:31
Speaker 2: to remind us what happened.
1:34
Speaker 1: Musk and the Dose people went into USAID and they
1:40
Speaker 1: canceled a very large percentage of the contracts that USAID
1:47
Speaker 1: had with partner organizations throughout the world. They also displaced
1:53
Speaker 1: the existing leadership and Secretary of State Marco Rubio assumed
1:58
Speaker 1: control of USAID, and they gutted the staff so that
2:03
Speaker 1: a great many people were placed either on leave or
2:06
Speaker 1: outright fired with very little time to adjust. Us also
2:10
Speaker 1: actually tweeted that USAID was effectively dead right, So this
2:16
Speaker 1: was an effort by those who essentially kill an agency
2:20
Speaker 1: created by Congress.
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Speaker 2: The judge found that Musk and his team likely violate
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Speaker 2: the Constitution in multiple ways. Let's talk first about the
2:29
Speaker 2: appointment's clause issue. Explaining the appointments clause issue.
2:33
Speaker 1: The Constitution sets out how officers of the United States
2:38
Speaker 1: are appointed, so called principal officers, who are people who
2:42
Speaker 1: have a whole lot of responsibility. So think about a
2:45
Speaker 1: cabinet level secretary must be nominated by the President and
2:49
Speaker 1: it's confirmed by the Senate. There are also what the
2:53
Speaker 1: Constitution calls inferior officers who exercise considerable power, but under
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Speaker 1: the supervision of a prince officer, and they can also
3:02
Speaker 1: be appointed via that same mechanism of presidential nomination and
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Speaker 1: Senate confirmation. But the Constitution says that alternatively, for an
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Speaker 1: inferior officer, Congress confessed the authority to make appointments either
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Speaker 1: in the president alone the first of law, or in
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Speaker 1: the heads of departments essentially cabinet secretaries. What the judge
3:23
Speaker 1: said was that Musk is exercising at least the power
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Speaker 1: of inferior officer, probably the power of a principal officer.
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Speaker 1: But it doesn't matter which he is, because he wasn't
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Speaker 1: appointed in conformity with either procedures. He was not nominated
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Speaker 1: by the President and confirmed by the Senate. He was
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Speaker 1: apparently appointed by the president. But remember the appointment's cause
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Speaker 1: says that can only be a mechanism for inferior officers
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Speaker 1: if Congress authorizes it, and Congress did not authorize this.
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Speaker 1: Congress didn't even create those dose as a creation solely
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Speaker 1: of President Trump.
4:00
Speaker 2: Administration had said that Musk isn't the real head of
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Speaker 2: DOZE and doesn't have the power to make these kinds
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Speaker 2: of decisions. But the judge cited Trump's statements about Musk
4:12
Speaker 2: and Musk's comments and social media posts to demonstrate that
4:17
Speaker 2: quote he has firm control over DOGE.
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Speaker 1: That's right. It's essentially holding that. Even though at one
4:24
Speaker 1: point or another the administration has tried to claim that
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Speaker 1: Musk is just an advisor, he was in fact exercising
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Speaker 1: the power of the head of DOGE. Musk has claimed
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Speaker 1: that he is the President in his address to the
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Speaker 1: Joint Session of Congress referred to him that way. He's
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Speaker 1: referred to him that way in other statements. And so
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Speaker 1: you can't just evade the appointment's clause by having somebody
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Speaker 1: the de facto principle or imperial officer without triggering the
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Speaker 1: requirements of the clause.
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Speaker 2: So the judge also found that this push to dismantle USAID,
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Speaker 2: which was created by Congress, likely violated the separation of
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Speaker 2: powers principles.
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Speaker 1: Yeah, so this is the other key point of the
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Speaker 1: constitutional ruling. The Constitution refers to agencies, but leads to
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Speaker 1: Congress the prerogative to create and destroy agencies, and the
5:22
Speaker 1: administration seems to have recognized this in another context. So
5:26
Speaker 1: with respect to the Department of Education, which President Trump
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Speaker 1: has said he'd like to close. Secretary McMahon has been
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Speaker 1: taking efforts to reduce its footprint, but even she acknowledges
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Speaker 1: that she can't dismantle the Department of Education on her own.
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Speaker 1: That would require an Act of Congress. Here, by contrasts,
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Speaker 1: Musk and to some extent, Trump have effectively said they
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Speaker 1: are dismantling USAID and they can't do that, right. It's
5:53
Speaker 1: up to Congress to destroy the agencies it creates. They
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Speaker 1: haven't literally white out USAID. But if Congress creates an
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Speaker 1: agency and then the executive branch essentially guts it, that's
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Speaker 1: the equivalent. That's how the judge ruled. In any event,
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Speaker 1: what is.
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Speaker 2: The practical effect of the judge's order when you know,
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Speaker 2: as you said, as he said, the USAID has effectively
6:20
Speaker 2: been eliminated.
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Speaker 1: Well, I want to distinguish between the appointment's clause issue
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Speaker 1: and the separation of powers issue. With respect to the
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Speaker 1: appointment's clause, the judge stayed his ruling for a brief
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Speaker 1: period because he acknowledged that if the decisions that were
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Speaker 1: effectively taken by Musk are now ratified by actual USAID officials,
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Speaker 1: then that would render must the facto and de Joor
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Speaker 1: a mere advisor, in which case there would not be
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Speaker 1: an appointment's clause violation, or at least not one that
6:59
Speaker 1: leads to invalidation of the underlying actions with respect to
7:03
Speaker 1: the separation of powers argument. However, the effect is to basically,
7:09
Speaker 1: on a going forward basis, they can't dismiss anybody else.
7:14
Speaker 1: The judge didn't give the plaintiffs everything they wanted, but
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Speaker 1: one thing he crucially did do was making an order
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Speaker 1: that it has an impact agency wide. The government had said, well,
7:26
Speaker 1: whatever you do, limit your remedy to the specific plaintiffs
7:31
Speaker 1: who filed, and the judge of well, I can't do
7:34
Speaker 1: that because if you look at the caption, the plaintiffs
7:37
Speaker 1: who filed are so called dough plaintiffs. That is there,
7:40
Speaker 1: you know, pseudonymized John Doe's one through I don't remember
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Speaker 1: exactly how many there are. And the risk would be
7:46
Speaker 1: that if you gave relief just to these particular plaintiffs,
7:49
Speaker 1: some of whom have been suspended, some of whom have
7:51
Speaker 1: been fired, then you're going to reveal their identities and
7:56
Speaker 1: they'll be subject to reprisalm So the short of it
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Speaker 1: is that the administration can't make further cuts to USAID.
8:04
Speaker 1: Some of the personnel will be put back in their jobs,
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Speaker 1: but all of this, of course, is going to be
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Speaker 1: subject to an appeal, which the administration has said.
8:13
Speaker 2: It will take, even if they're put back in their jobs.
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Speaker 2: The judge gave Rubio what fourteen days to decide whether
8:21
Speaker 2: to permanently close the agency's headquarters.
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Speaker 1: Right, so, the President and the Secretary of State, where
8:29
Speaker 1: it's agency lodge within the State Department, do have considerable
8:33
Speaker 1: discretion about how to run and even structure an agency
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Speaker 1: where Congress doesn't say exactly what you have to do.
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Speaker 1: And so that's part of what the judge is doing here.
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Speaker 1: He's saying that you can't completely close it, but you
8:50
Speaker 1: do have some considerable discretion, and I'm going to wait
8:53
Speaker 1: until you exercise that discretion and see, you know, whether
8:56
Speaker 1: you've done so in a way that at least preserves
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Speaker 1: the core of what Congress set up this agency to do.
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Speaker 2: This decision, obviously is limited to USAID. It's the first
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Speaker 2: time that or it's the most direct ruling to date
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Speaker 2: that Musk's roll violates the Constitution. Does this decision have
9:15
Speaker 2: any impact outside of USAID?
9:20
Speaker 1: Yes, the principle that the judge applied would apply to
9:26
Speaker 1: all of the things that Musk is doing with respect
9:28
Speaker 1: to the entire federal government. Right, So there's no difference
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Speaker 1: in principle between Musk's unlawful appointment with respect to USAID
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Speaker 1: on the one hand, versus all the other agencies that
9:42
Speaker 1: he's been going around and making decisions with respect to.
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Speaker 1: But of course other judges might reach a different conclusion
9:51
Speaker 1: on the appointment's clause question. And even if they reach
9:55
Speaker 1: the same conclusion, there is this pretty big loophole that
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Speaker 1: the judge allows for cabinet level officials or other personnel
10:05
Speaker 1: within the agencies who are actually properly appointed to ratify
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Speaker 1: the decisions that Musk has made, so that they can
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Speaker 1: render him advisory in the way that the administration has
10:18
Speaker 1: sometimes claimed he is after the fact and thereby avoid
10:24
Speaker 1: you know, the judicial and validation of everything that Musk
10:29
Speaker 1: and DOGE have done.
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Speaker 2: This is an example of how DOGE is moving so
10:34
Speaker 2: fast that by the time these go through the courts,
10:39
Speaker 2: the damage has been done.
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Speaker 1: Yeah, I think that's right. I mean, you know, Musk
10:44
Speaker 1: comes from the move fast and break things worldview, and
10:50
Speaker 1: you know that works in the business world, and you know,
10:54
Speaker 1: apparently it works pretty well with respect to government. Also,
10:57
Speaker 1: it's always easier to just destroy than to create. And
11:02
Speaker 1: even if a court says after the fact what you've
11:04
Speaker 1: done is illegal, if a lot of the people who
11:07
Speaker 1: were unlawfully fired have in the meantime taken new jobs
11:12
Speaker 1: or decided that they don't want to work in an
11:14
Speaker 1: environment in which they could be fired again, but this
11:17
Speaker 1: time lawfully, then you have effectively gotten most of what
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Speaker 1: you wanted, even though you broke the law in doing so.
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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
11:28
Speaker 2: this conversation with Professor Michael Dorf of Cornell Law School.
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Speaker 2: Is the Trump administration defying court orders and what can
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Speaker 2: judges do about it? I'm June Grosso. When you're listening
11:40
Speaker 2: to Bloomberg, there are more than one hundred and fifty
11:44
Speaker 2: cases pending against the Trump administration from Maryland to California,
11:49
Speaker 2: setting up multiple tests of executive power that may ultimately
11:54
Speaker 2: land in the Supreme Court. Some judges have already called
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Speaker 2: out the Trump administration for not following their orders. President
12:02
Speaker 2: Trump has not yet openly defined a court order and
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Speaker 2: says he won't, but he continues to complain about judges.
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Speaker 2: Listen to how he answered the question in an interview
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Speaker 2: on Fox yesterday.
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Speaker 1: I never did defy a court order, and you wouldn't
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Speaker 1: in the feud. No, you can't do that. However, we
12:19
Speaker 1: have bad judges. We have very bad judges, and these
12:22
Speaker 1: are judges that shouldn't be allowed. I think at a
12:25
Speaker 1: certain point you have to start looking at what do
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Speaker 1: you do when you have a rogue judge.
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Speaker 2: That was just hours after the Chief Justice rebuked Trump
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Speaker 2: for calling for the impeachment of a judge. I've been
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Speaker 2: talking to constitutional law professor Michael Dorf of Cornell Law School.
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Speaker 2: There are court fights before judges around the country overdoze
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Speaker 2: burrowing into federal agencies, you know, staff cuts and canceling contracts,
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Speaker 2: and some judges are finding that the administration might not
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Speaker 2: be complying with their orders. Judge also up in Sent
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Speaker 2: Francisco last week issued a preliminary injunction requiring the administration
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Speaker 2: to rehire probationary employees at six agencies, almost twenty five
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Speaker 2: thousand federal workers while the legal suit is pending, and
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Speaker 2: on Monday, he ordered the Justice Department to explain what
13:17
Speaker 2: was going on based on news reports that the probationary
13:20
Speaker 2: workers were being rehired and then placed on administrative leave.
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Speaker 2: This is not allowed by the preliminary injunction he wrote,
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Speaker 2: for it would not restore the services the preliminary injunction
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Speaker 2: intends to restore. That's just one example. The freezing funds
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Speaker 2: is another example that the administration is either ignoring or
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Speaker 2: skirting or delaying complying with judicial orders.
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Speaker 1: Yeah, and that is a very very serious issue. Another
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Speaker 1: example is the administration's apparent violation of the judges order
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Speaker 1: in the case involving over Twitter people who are sent
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Speaker 1: to El Salvador by a pretty clearly unlawful invocation of
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Speaker 1: the Alien Enemies Act. The administration, i think, is playing
14:12
Speaker 1: a little bit of a game. That is, in social
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Speaker 1: media posts and elsewhere, they are asserting essentially a power
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Speaker 1: to ignore judaical orders. But in actual court filings and
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Speaker 1: statements they have almost invariably claimed that they are complying,
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Speaker 1: but they do so with you know, somewhat flimsy reasons, right,
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Speaker 1: you know, just to give the example again from the
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Speaker 1: migrants case, right, they say, well, we complied with the
14:43
Speaker 1: written order, but not with the oral order because an
14:46
Speaker 1: oral order isn't really an order. In other cases they say, well,
14:49
Speaker 1: we need more time, and so to the extent that
14:52
Speaker 1: there's like a sliver of a silver lining, I guess
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Speaker 1: I'm glad that they're they at least feel the need
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Speaker 1: to pretend to be complying when speaking in open court,
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Speaker 1: because it strikes me that we would be in an
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Speaker 1: even worse constitutional crisis if a Department of Justice lawyer
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Speaker 1: stood up in open court and said to the judge,
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Speaker 1: make me you know, and then the President basically said, well,
15:20
Speaker 1: you know, even the US marshals who are supposed to
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Speaker 1: enforce judicial orders are part of the Justice Department, and
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Speaker 1: I've instructed my Attorney General not to have them enforce
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Speaker 1: the judicial orders.
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Speaker 2: Let's hope we never get to that point. And the
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Speaker 2: judge in the case involving the Venezuelans who were deported
15:41
Speaker 2: is still waiting for the same information that he asked
15:44
Speaker 2: the government for on Monday, the exact time the planes
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Speaker 2: took off, the exact time they landed, when the Venezuelans
15:52
Speaker 2: were out of US custody. I mean, it's been tooth
15:55
Speaker 2: and nail trying to get the information from the government
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Speaker 2: to see if they actually ignored his court order, which
16:02
Speaker 2: it appears they did.
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Speaker 1: Yeah. I mean the New York Times yesterday published their
16:06
Speaker 1: own analysis based I guess on you know, aviation records
16:11
Speaker 1: that made pretty clear that at least one of the
16:13
Speaker 1: flights didn't take off until after the written order was
16:17
Speaker 1: in effect, which, you know, if that's true, then even
16:21
Speaker 1: on the administration's account, they violated the order.
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Speaker 2: And they're also using on the third plane, they're using
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Speaker 2: this argument that it isn't covered by the Alien Enemies Act,
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Speaker 2: so it doesn't count. Have other administrations acted like this
16:37
Speaker 2: with court orders, you know, not openly defying them, but
16:41
Speaker 2: not really complying with them either.
16:43
Speaker 1: You can point to situations in which administrations have not
16:48
Speaker 1: exactly bent over backwards to comply with the letter of
16:52
Speaker 1: judicial orders. There are certainly cases in which administrations at
16:57
Speaker 1: least seem to try to comply but were on abo
17:00
Speaker 1: because of resource or time constraints. I can't think of
17:04
Speaker 1: an administration that was so uniformly hostile to judicial orders
17:12
Speaker 1: and at the same time was asserting that it had
17:15
Speaker 1: the power to disregard what the court's told to do.
17:20
Speaker 1: You know, the events that we think about in this
17:22
Speaker 1: context are pretty scary moments in American history. So there's
17:27
Speaker 1: a story that's told about President Andrew Jackson, who was
17:32
Speaker 1: unhappy with the ruling of the Supreme Court in one
17:36
Speaker 1: of the Cherokee removal cases and reportedly said John Marshall, meaning,
17:42
Speaker 1: the Chief Justice of the United States has made his decision.
17:45
Speaker 1: Now let's see him enforce it. By the way, he
17:47
Speaker 1: probably never actually said that, but it's a good story.
17:51
Speaker 1: There were this is not at the federal level, but
17:54
Speaker 1: at the state level during the desegregation era, after Brown
17:59
Speaker 1: against Portovichi, there was so called massive resistance. You see
18:04
Speaker 1: a similar phenomenon throughout much of the country in response
18:08
Speaker 1: to some of the Supreme Court's school prayer rulings. And
18:11
Speaker 1: then at the federal level, there was a genuine worry
18:15
Speaker 1: during the Nixon administration that when the Supreme Court ordered
18:20
Speaker 1: him to turn over the secret tapes that he had
18:24
Speaker 1: made in the White House to the special prosecutor, that
18:28
Speaker 1: he might not comply. Now in the end, he did comply,
18:31
Speaker 1: and that in short order, led to the end of
18:33
Speaker 1: his presidency. But this is a recurring theme in American constitutionalism,
18:40
Speaker 1: and it's because, as Alexander Hamilton wrote in Federalist number
18:46
Speaker 1: seventy eight. The judiciary is what he called the least
18:51
Speaker 1: dangerous branch, but it's also least powerful branch. Unlike Congress,
18:54
Speaker 1: it lacks the power of the purse, and unlike the presidency,
18:57
Speaker 1: it lacks the power of the sword. And so ultimately
19:02
Speaker 1: the law and compliance with the law depends on good
19:08
Speaker 1: faith efforts by those in government who do control believers
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Speaker 1: of power to actually accept that there is authority in
19:19
Speaker 1: other branches of government. I'm not convinced that President Trump
19:23
Speaker 1: or the people working for him have that kind of
19:26
Speaker 1: a commitment to the rule of law.
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Speaker 2: So while we're on this case before Judge Boseburg over
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Speaker 2: the Venezuelan deportees, President Trump yesterday on truth Social said
19:39
Speaker 2: that Judge Boseburg should be impeached, and then Chief Justice
19:44
Speaker 2: John Roberts before noontime came out with his statement two
19:47
Speaker 2: lines saying that this is not what impeachment is for.
19:51
Speaker 2: You know, the appellate process should be followed. What's your
19:54
Speaker 2: take on the Chief Justice at this moment. I mean,
19:57
Speaker 2: he doesn't often comment outside out of his opinions are
20:01
Speaker 2: outside of speeches that he makes even and doesn't say
20:04
Speaker 2: much in the speeches usually what do you make of
20:06
Speaker 2: him sort of stepping.
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Speaker 1: In so what you said is true. Although he has
20:11
Speaker 1: in the past, once during the first Trump administration, another
20:15
Speaker 1: time in response to something that Chuck Schumer said, made
20:18
Speaker 1: statements like this. He also in his end of year
20:21
Speaker 1: report decried personal attacks on judges as undermining the integrity
20:28
Speaker 1: of the legal process. So this is something that he
20:29
Speaker 1: has cared about. I think there's no question that the
20:32
Speaker 1: timing here is not coincidental. You know, there are a
20:36
Speaker 1: number of ways to read this. I mean I read
20:38
Speaker 1: this rather straightforwardly as a chief Justice trying to tamp
20:42
Speaker 1: down this kind of talk. I don't think it's really
20:46
Speaker 1: necessary because although there have been articles of impeachment introduced
20:51
Speaker 1: in Congress against some of the judges who ruled against
20:54
Speaker 1: the Trump administration, those aren't going anywhere. Right. That is
20:57
Speaker 1: to say, you need super majority in the Senate actually
21:01
Speaker 1: to remove a judge, and you're not going to get
21:03
Speaker 1: that with the number of seats Democrats hold. But I
21:07
Speaker 1: do think that this was an attempt to push back
21:10
Speaker 1: not just on the talk of impeachment, but also on
21:13
Speaker 1: some of the personalization that you see from Trump and
21:17
Speaker 1: some of his allies. You know, another way who read
21:20
Speaker 1: it this is more cynical. It's not my view, but
21:22
Speaker 1: I've seen this is that this is John Roberts sending
21:25
Speaker 1: a signal to Donald Trump saying, Hey, you don't need
21:27
Speaker 1: to get all excited about the individual judges. You could
21:31
Speaker 1: win in the courts of appeals or maybe at the
21:33
Speaker 1: Supreme Court. So calm down, and you know, come here,
21:35
Speaker 1: maybe we'll take care of you again. I don't think
21:38
Speaker 1: that's what's going on here, but you know, if you
21:41
Speaker 1: recall at the President's speech before the Joint Session of Congress, right,
21:45
Speaker 1: he actually goes up to Roberts and, you know, basically
21:48
Speaker 1: thanks him for the decision and the immunity case last year.
21:53
Speaker 1: I don't think Roberts was happy about that, but a
21:55
Speaker 1: cynic might say, oh, sure, yeah, this is a kind
21:58
Speaker 1: of two way relationship.
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Speaker 2: When I saw that, I thought, I bet Roberts is
22:03
Speaker 2: cringing inwardly, you know, having a president thank you for
22:07
Speaker 2: a decision.
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Speaker 1: Well, I mean there was that brief flash of Amy
22:12
Speaker 1: Conny Barrett's face when he did that. She was standing
22:15
Speaker 1: right next to Roberts, and she did seem to be cringing.
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Speaker 2: This could end up being a really tough time for
22:21
Speaker 2: the judiciary.
22:23
Speaker 1: There's a fire hose of illegality coming out of the
22:26
Speaker 1: White House. But I do think that the fundamental issue
22:29
Speaker 1: in all of these cases is the extent to which
22:32
Speaker 1: the administration is going to comply with the judicial orders.
22:35
Speaker 2: Well, we'll keep our eye on the case involving Judge Boseburg.
22:40
Speaker 2: He's given the government one more day to give him
22:44
Speaker 2: the information about the plane flights. Thanks so much for
22:47
Speaker 2: joining me today, Mike. That's Professor Michael Dorf of Cornell
22:50
Speaker 2: Law School coming up next on the Bloomberg Law Show.
22:54
Speaker 2: Trump is making an emergency appeal to the Supreme Court
22:57
Speaker 2: over his executive order seeking to restrict automatic birthright citizenship.
23:03
Speaker 2: But what's the emergency. I'm June Grosso and this is Bloomberg.
23:08
Speaker 2: President Donald Trump is asking the Supreme Court to intervene
23:12
Speaker 2: on an emergency basis for the third time in his
23:16
Speaker 2: second administration. Trump is asking the court to let him
23:19
Speaker 2: partially enforce his executive order seeking to restrict automatic birthright citizenship,
23:26
Speaker 2: a longstanding constitutional right. But the administration is not asking
23:30
Speaker 2: the court to directly consider the constitutionality of his executive order,
23:36
Speaker 2: instead focusing on the power of judges to issue nationwide injunctions.
23:41
Speaker 2: Joining me is an expert in federal courts and jurisdiction,
23:44
Speaker 2: Amanda Frost, a professor at the University of Virginia Law School.
23:49
Speaker 2: Trump is asking the Supreme Court to let him partially
23:53
Speaker 2: enforce his executive order to restrict automatic birthright citizenship. What
23:58
Speaker 2: is he asking for.
23:59
Speaker 3: Yes, that's fascinating. What he's asking for is for the
24:03
Speaker 3: court to limit the injunctive release in the cases to
24:07
Speaker 3: just the parties in the cases. So, these cases have
24:10
Speaker 3: been brought by various different groups on behalf of their members.
24:12
Speaker 3: I brought on behalf of individuals who are expecting a
24:15
Speaker 3: child in the coming months and fit within the group
24:18
Speaker 3: of people that would be arguably denied citizenship under the order.
24:22
Speaker 3: States as well have food on behalf of their citizens,
24:25
Speaker 3: and these courts, I think three of them have issued
24:27
Speaker 3: what's called nationwide or universal injunctions to tell the government
24:30
Speaker 3: you can't enforce this executive order against anyone, not against
24:34
Speaker 3: the parties to the case, but also not against anyone
24:36
Speaker 3: else in the United States. So in bringing the case
24:38
Speaker 3: to the Supreme Court, the government's not conceding that the
24:41
Speaker 3: injunction is appropriate us to the parties. It's not like
24:44
Speaker 3: giving away that issue. But it's also not really fighting
24:46
Speaker 3: that issue. It's asking the Supreme Court in its emergency
24:49
Speaker 3: docket to narrow the injunction so that it applies just
24:53
Speaker 3: to the parties. And they argue that states shouldn't be
24:55
Speaker 3: allowed to sue on behalf of their citizens, So they're
24:57
Speaker 3: trying to make it the only people who would get
24:59
Speaker 3: relief and who wouldn't be subject to the order are
25:01
Speaker 3: the named plaintiffs individuals in the case, and everyone else
25:04
Speaker 3: in America whout a child would be subject to the order.
25:06
Speaker 2: So does that make sense to have it apply to
25:09
Speaker 2: just the name plaintiffs, one rule for this plaintiff and
25:13
Speaker 2: another rule for the rest of the country.
25:15
Speaker 3: No, it doesn't, And here's my explanation for why it doesn't.
25:19
Speaker 3: So universal or nationwide injunctions can be issued in a
25:22
Speaker 3: variety of cases. I think at times they're not appropriate.
25:25
Speaker 3: I think they should be a remedy that's used sparingly. Often,
25:28
Speaker 3: Relief just to the name parties to the suit the
25:30
Speaker 3: plaintiffs is perfectly appropriate. There are, however, exceptions, and this
25:33
Speaker 3: case is a good example of a case that should
25:35
Speaker 3: be an exception. It should be an exception one because
25:38
Speaker 3: of a chaos it would create, two because it's not administrable,
25:42
Speaker 3: that is, who would be covered and who isn't would
25:44
Speaker 3: be very difficult to determine. And three because we should
25:46
Speaker 3: not ask each and every person who's having a child
25:48
Speaker 3: in the United States, and it would be everyone this
25:50
Speaker 3: would apply to have to prove their lineage in order
25:52
Speaker 3: for their child to be recognized as a citizen and
25:54
Speaker 3: something other than an undocumented immigrant.
25:57
Speaker 2: Tell us more about the chaos it would create.
26:00
Speaker 3: You can imagine, of course, if people were to have
26:03
Speaker 3: children or risk of having children that wouldn't be citizens
26:06
Speaker 3: or deemed a citizens by the government for some period
26:08
Speaker 3: of time until the Supreme Court resolved the issue. You
26:11
Speaker 3: can imagine how difficult that would be for those families.
26:14
Speaker 3: US citizenship is essential for getting certain benefits like healthcare
26:18
Speaker 3: of Medicaid type benefits, as well as qualifying for other
26:20
Speaker 3: welfare benefits at the state or federal level. The citizenship
26:23
Speaker 3: is essential for getting a passport for the child and
26:25
Speaker 3: other identity documents. You can imagine parents who are here legally,
26:28
Speaker 3: because the order applies to parents who are in the
26:30
Speaker 3: United States legally but temporarily, which can mean for years.
26:33
Speaker 3: On student visas or work visas. Those parents might want
26:35
Speaker 3: to leave the country with their two or three month
26:37
Speaker 3: old child and visit grandparents, for example, and yet they
26:40
Speaker 3: couldn't do so. The child would have no ability to
26:42
Speaker 3: get a passport that would allow them to enter at
26:44
Speaker 3: the US again, and even though the parents are legally
26:46
Speaker 3: free to come and go, their child wouldn't be. Their
26:48
Speaker 3: child would be born undocumented, which means at risk of
26:50
Speaker 3: being deported when we have a president who says to
26:52
Speaker 3: port them all, So why not a newborn baby? And
26:54
Speaker 3: then you can imagine couples who are in this situation again,
26:57
Speaker 3: maybe perfectly legally present here for years, applying for Green
26:59
Speaker 3: cars cards, able to stay. They might have a real
27:02
Speaker 3: incentive now to flee to a state across a border
27:05
Speaker 3: which this rule doesn't apply to, or to try to
27:07
Speaker 3: find some other way of getting status for their child. Finally,
27:10
Speaker 3: the federal government's not prepared to administer this. The federal
27:13
Speaker 3: immigration laws all assume a child born on US soil
27:15
Speaker 3: as a citizen, so there's no visa status for these children.
27:18
Speaker 3: And yet the US government wants to impose this rule
27:20
Speaker 3: without being ready, So that's the chaos. The administrability point
27:24
Speaker 3: comes from. These are associations suing on behalf of the
27:26
Speaker 3: association and its members. The administration is trying to limit
27:29
Speaker 3: it just to like certain individuals in the association, but
27:31
Speaker 3: that's not how the law works. The associations the party,
27:33
Speaker 3: so all of their members should be covered. Who are members,
27:36
Speaker 3: you know, that would be a difficult determination to make,
27:38
Speaker 3: and so who would actually get the benefit of this
27:40
Speaker 3: order wouldn't be clear if the government were to win.
27:42
Speaker 3: And finally, the idea of everybody in the United States
27:45
Speaker 3: having this uncertain status for their child until the Supreme
27:48
Speaker 3: Court rules is violating constitutional rights, you know, potentially for
27:51
Speaker 3: a year plus or at least potentially also rushing the
27:53
Speaker 3: Supreme Court to decision. And this is not a case
27:57
Speaker 3: in which the government has a strong argument for the
27:59
Speaker 3: need for immediate ability to implement its own policy, which
28:03
Speaker 3: is a break from about a century of precedent, so
28:06
Speaker 3: it's asking to do something completely new. Also, in its
28:09
Speaker 3: executive order, it said we won't even implement this order
28:12
Speaker 3: for thirty days. It imposed to stay on itself. So
28:14
Speaker 3: it's hard to see why it's such an emergency, right
28:17
Speaker 3: now to immediately implement this absolutely brand new legal rule.
28:22
Speaker 2: The Solicitor General wrote the Acting Solicitor General that universal
28:26
Speaker 2: injunctions have reached epidemic proportions since the start of the
28:30
Speaker 2: current administration. District courts have issued more universal injunctions and
28:35
Speaker 2: tros during February twenty twenty five alone than through the
28:39
Speaker 2: first three years of the Biden administration. Yeah, there's a
28:42
Speaker 2: good reason for that.
28:43
Speaker 3: Well, I mean in my first response, and by the way,
28:45
Speaker 3: it was a response that I gave during the Obama
28:47
Speaker 3: administration and during the Biden administration as well, which is
28:50
Speaker 3: first that nationalide injunctions are not appropriate in every case,
28:53
Speaker 3: I would agree, but second that they are response to
28:56
Speaker 3: sweeping executive orders that attempt to rewrite massive areas of
29:00
Speaker 3: law without federal legislative involvement, without congressional involvement, and that's
29:04
Speaker 3: particularly been the case for immigration. Obama did it too,
29:07
Speaker 3: Biden did it too. But when these executives issue sweeping
29:10
Speaker 3: executive orders seeking to rewrite federal law for everyone, I
29:13
Speaker 3: think it is not inappropriate to think, at least some
29:15
Speaker 3: of the time, courts likewise have the power to enjoin
29:19
Speaker 3: the nationwide and it's not one court in joining them
29:21
Speaker 3: for the nation for all time. It can be immediately
29:23
Speaker 3: appealed and is up to a three judge pellate court
29:26
Speaker 3: and appealed again of the Supreme Court. And frankly, that's
29:28
Speaker 3: how our legal system has always worked, so it is
29:30
Speaker 3: not shocking to me to watch this happen. Should they
29:33
Speaker 3: be issued in every case now? And do courts sometimes
29:35
Speaker 3: overuse them? Certainly I would agree in fact with the
29:38
Speaker 3: Birthright Citizenship Order, I think my view, but I feel
29:41
Speaker 3: pretty confident that the nationwide injunction shouldn't apply to the
29:44
Speaker 3: provision of the executive Order asking agencies to promulgate or
29:47
Speaker 3: come up with rules and policies to implement it, as
29:49
Speaker 3: long as they don't actually start implementing those policies. I
29:51
Speaker 3: see no harm in having them work on those policies
29:54
Speaker 3: within the agency, And in fact, that might enlighten us
29:56
Speaker 3: as to how this would actually work in practice, which
29:58
Speaker 3: I think would be very harmfulotic for the American people.
30:01
Speaker 3: So it might be useful to see just how broadly
30:04
Speaker 3: the State Department would apply the rule to refuse passports
30:06
Speaker 3: to people's children. I'll repeat that everybody is going to
30:09
Speaker 3: have to prove their lineage in order to get their
30:11
Speaker 3: child to passport, and that might be harder than people realize.
30:14
Speaker 2: And looking at you know whether the Supreme Court will
30:16
Speaker 2: take it or not. In the past, there have been
30:19
Speaker 2: a couple of justices who have questioned the wisdom of
30:22
Speaker 2: these nationwide injunctions. Justice Neil Gorsich call them cosmic injunctions.
30:29
Speaker 2: He also said sometimes judges seek to govern the whole
30:32
Speaker 2: nation from their courtrooms. Justice Elena Kagan has said, it
30:36
Speaker 2: just can't be right that one district judge can stop
30:39
Speaker 2: a nationwide policy in its tracks and leave it stop
30:43
Speaker 2: for the years that it takes to go through the
30:45
Speaker 2: normal process. So they've questioned it several times, but they've
30:50
Speaker 2: never taken up the issue. Do you think they might
30:52
Speaker 2: take it up in this case?
30:54
Speaker 3: Two or three justices have certainly criticized them. A couple
30:57
Speaker 3: things about this one. The Supreme Court itself is should
30:59
Speaker 3: a nationwide junction In the fairly recent past in the
31:01
Speaker 3: travel ban case one of the early iterations of the
31:04
Speaker 3: travel ban, and they left in place but after adjustment,
31:06
Speaker 3: a nationwide injunction. So if these are unconstitutional and wrong,
31:10
Speaker 3: the Supreme Court has been doing it until recently. They
31:12
Speaker 3: can rethink it, but they should acknowledge they seem to
31:14
Speaker 3: think it was fine within recent memory. The second point
31:18
Speaker 3: is that saying that maybe they're overused and we should
31:21
Speaker 3: have some criteria for how to use them, I think
31:23
Speaker 3: is appropriate. Saying they're unconstitutional and should never be used,
31:25
Speaker 3: I think is at odds with long standing equitable principles
31:29
Speaker 3: and the constitutional role of courts. And written an article
31:32
Speaker 3: on this where I talked about the factors that a
31:34
Speaker 3: court should take into account before it issues such an injunction,
31:36
Speaker 3: and that it should gather evidence on that and should
31:38
Speaker 3: be cautious. If the Supreme Court wanted to say something
31:40
Speaker 3: like that, I'd be all for it. If there's a
31:42
Speaker 3: suggestion that they're inappropriate in all cases, I would repeat
31:44
Speaker 3: my point that that's at odds with long standing equitable
31:47
Speaker 3: practices and would really undermine the role of courts. And
31:50
Speaker 3: I'll give an example imagining an executive branch official who
31:54
Speaker 3: issues an order that says, in order to vote, you
31:57
Speaker 3: must have a passport. That's the only ID document will
31:59
Speaker 3: accept for you to vote, because you've got to be
32:00
Speaker 3: a citizen, and so to vote you to have a passport. Well,
32:03
Speaker 3: of course, many Americans don't have a passport, and that
32:04
Speaker 3: would be illegal to limit voting to those people. But
32:07
Speaker 3: then imagine the views. Well, there's no nationwide injunctions, and
32:10
Speaker 3: we won't certify a class because that's hard to do.
32:12
Speaker 3: So the elections two weeks away. Those of you who
32:15
Speaker 3: can sue between now and then, you get to vote
32:16
Speaker 3: even if you don't have a passport. Everyone else, you know, well,
32:18
Speaker 3: you'll get justice eventually when the Supreme Court hears it.
32:21
Speaker 2: Right.
32:21
Speaker 3: That shows you, in that fairly extreme example, that sometimes
32:24
Speaker 3: the deprivation of constitutional rights for a short period itself
32:28
Speaker 3: can be accomplish the executive's goal, even if its actions are
32:31
Speaker 3: clearly unconstitutional and eventually struck down. That's what I believe
32:34
Speaker 3: birthright citizenship is right. It's a constitutional right, long recognized,
32:37
Speaker 3: lung assumed to exist by all the branches of government.
32:40
Speaker 3: And yet the government wants to start stripping citizenship of
32:42
Speaker 3: people until the Supreme Court addresses it a year from now.
32:45
Speaker 3: That year of citizenship lass is itself an enormous constitutional
32:49
Speaker 3: problem in violation.
32:50
Speaker 2: Chief Justice Roberts set April fourth as a deadline for
32:55
Speaker 2: responses from the states and the others that are challenging
32:58
Speaker 2: Trump's order on birthrights citizenship. Does that indicate that it's
33:02
Speaker 2: not considered an emergency since you know he's waiting till
33:05
Speaker 2: next month.
33:06
Speaker 3: Yes, that certainly because the court doesn't view it as
33:09
Speaker 3: an emergency. And it's hard for me to see how
33:11
Speaker 3: it's an emergency when, as I mentioned at the asset,
33:13
Speaker 3: the executive order itself didn't immediately put it into effect.
33:16
Speaker 2: We're two months into the administration and this is the
33:19
Speaker 2: third time they've been at the Supreme Court.
33:22
Speaker 3: Well, yeah, I mean that's their policy as a flood
33:24
Speaker 3: the zone policy right to like just bombard the world
33:27
Speaker 3: with their legal changes. I will say, I don't think
33:29
Speaker 3: they're handling it.
33:30
Speaker 1: Well.
33:30
Speaker 3: I agree, it's totally disruptive to the people that are affected,
33:33
Speaker 3: to the court system, to the lawyers and advocates on
33:37
Speaker 3: the other side. But the government is doing a terrible
33:39
Speaker 3: job of litigating these cases. They're sloppy, they've got typos,
33:43
Speaker 3: the quality is poor. The lawyers can't answer the judges questions.
33:46
Speaker 3: I mean, they're a limited shop, right like, they don't
33:49
Speaker 3: have endless numbers of employees, and they too seem to
33:52
Speaker 3: be adslee flailing under this, including making this questionable choice
33:56
Speaker 3: to bring this as their third case before the court.
33:59
Speaker 2: Well see if the court rejects this or if there
34:01
Speaker 2: are four justices who want to take the case. Thanks
34:05
Speaker 2: so much for being on the show. That's Professor Amanda
34:08
Speaker 2: Frost at the University of Virginia Law School. And that's
34:12
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
34:15
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