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NYC Suing Trump & Fixing the Shadow Docket · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: New York City Mayor Zoran Mamdani said the Trump administration
0:12
Speaker 2: is exceeding its statutory authority by passing an arbitrary and
0:17
Speaker 2: capricious rule that goes against 140 years of legal precedent.
0:23
Speaker 3: The new federal public charge rule not only sweeps aside
0:26
Speaker 3: more than a century of established law, it is intentionally vague.
0:31
Speaker 3: as a means of creating uncertainty and fear, to isolate
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Speaker 3: immigrant New Yorkers, to force them to make an impossible
0:37
Speaker 3: choice between meeting their own basic needs and continuing to
0:42
Speaker 3: live in the city that they love.
0:44
Speaker 2: New York City and state are leading a coalition of
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Speaker 2: cities and 22 states filing lawsuits against the Department of
0:52
Speaker 2: Homeland Security's revocation of 2022 guidelines of the public charge
0:58
Speaker 2: rule in a way that gives immigration officers unprecedented sweeping
1:03
Speaker 2: discretion to deny green cards or visas to lawful immigrants.
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Speaker 2: Joining me is an expert in immigration law, Leon Fresco,
1:12
Speaker 2: a partner at Holland & Knight. Leon, first tell us
1:15
Speaker 2: what the public charge rule is.
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Speaker 4: Well, so the public charge rule actually comes from a
1:20
Speaker 4: statute that was passed in the 1800s. So this is
1:23
Speaker 4: not a new provision of law, so to speak. But
1:27
Speaker 4: it's a provision that's existed since the 1800s, which says
1:31
Speaker 4: that if a person is believed by the U.S. government
1:36
Speaker 4: to be likely to need public benefits, what the actual
1:39
Speaker 4: statute says is if the attorney general believes at the
1:43
Speaker 4: time of your application for admission into the United States
1:47
Speaker 4: that you are likely to be a public charge, you
1:51
Speaker 4: shall be deemed inadmissible. And so now it's not the
1:54
Speaker 4: attorney general who makes that decision. Now it's the Secretary
1:57
Speaker 4: of Homeland Security. And it's not just at the time
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Speaker 4: of the admission, but also at the time of if
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Speaker 4: you try to change from one status to another or
2:06
Speaker 4: try to move from a non-immigrant status to a green
2:08
Speaker 4: card status, there is an adjudication that has to be
2:11
Speaker 4: made each and every time. about all of the grounds
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Speaker 4: of inadmissibility, meaning are you a drug dealer, are you
2:19
Speaker 4: a terrorist, are you a illegal gambler, etc. And one
2:24
Speaker 4: of the grounds of inadmissibility is that you are likely
2:28
Speaker 4: to be a public charge. So what has happened is
2:32
Speaker 4: over the course of many decades, the rules keep changing
2:36
Speaker 4: as to what the government wishes to define as as
2:39
Speaker 4: a public charge. And the most recent rule was a
2:42
Speaker 4: Biden administration rule from 2022, which said that you are
2:48
Speaker 4: not a public charge unless you had obtained very specific
2:54
Speaker 4: government benefits that are very, very hard to obtain. So
2:57
Speaker 4: almost no one was a public charge. But what the
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Speaker 4: Trump administration has done is they've replaced that Biden administration
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Speaker 4: guidance with a rescission of that rule, but not with
3:10
Speaker 4: a new rule of their own. Instead, they said, go
3:13
Speaker 4: look at this sub-regulatory guidance in our USCIS policy manual.
3:19
Speaker 4: And what that policy manual basically says is any particular
3:24
Speaker 4: adjudicator can look at pretty much anything they want and
3:28
Speaker 4: make an unfettered discretionary determination on as to whether the
3:32
Speaker 4: person in front of them with their application is a
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Speaker 4: public charge or not, which again, the theory is, is
3:38
Speaker 4: this person going to be dependent on the U.S. taxpayers
3:41
Speaker 4: for their life in the United States, in which case
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Speaker 4: the answer is they don't get the immigration benefit they
3:46
Speaker 4: are supposed to get. Or if you think that they
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Speaker 4: will be self-sufficient, then you can continue and give them
3:52
Speaker 4: the benefit that they're supposed to get.
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Speaker 2: Mayor Mamdani said that the change is going to disproportionately
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Speaker 2: affect cities like New York City, with large immigrant populations
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Speaker 2: because they rely on federal funding. And there's a concern
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Speaker 2: that people are not going to request these benefits because
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Speaker 2: they're afraid of what may happen in their immigration cases.
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Speaker 4: Well, the cities have two problems, which is, number one,
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Speaker 4: they have to have some sort of standing basis in
4:22
Speaker 4: order to file the lawsuit. So they have to show
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Speaker 4: what they are going to suffer in order to be
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Speaker 4: able to file this lawsuit on behalf of the foreign
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Speaker 4: nationals that would themselves otherwise have to file this lawsuit
4:36
Speaker 4: about the public charge. So they have to have some
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Speaker 4: theory of how they as states are harmed. And what
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Speaker 4: they're saying is that as these federal rules and calculations
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Speaker 4: get placed for how many people need benefits, etc., many
4:51
Speaker 4: of them are calculated based on how many people have
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Speaker 4: green cards and how many people are lawfully in.
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Speaker 5: The state, etc., etc.
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Speaker 4: And so when you lower those numbers, then those states
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Speaker 4: lose those benefits. And the idea is that money gets
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Speaker 4: spent in the state and then it has circulation effects
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Speaker 4: where that money then gets spent again, etc., etc., And
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Speaker 4: all of that economic damage then occurs because that federal
5:20
Speaker 4: money never gets to that state in the first place
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Speaker 4: because these people don't acquire the status that allows them
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Speaker 4: to be included in these calculations.
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Speaker 2: So the grounds are that DHS is exceeding its authority
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Speaker 2: and the new rule is arbitrary and capricious.
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Speaker 4: Right. There's two different interesting... It's like a sandwich complaint,
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Speaker 4: which is they try to say, if you want to
5:47
Speaker 4: pick road number one, you will be losing in this route.
5:51
Speaker 4: If you want to pick road number two, you will
5:53
Speaker 4: be losing in this route. So you have to pick
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Speaker 4: one and then you lose. So there's three counts and
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Speaker 4: I'll go through them. So the first one is that
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Speaker 4: if what you're trying to say is that this sub-regulatory guidance...
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Speaker 4: is binding on the agency and they have to use
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Speaker 4: the guidance, which is the USCIS policy manual, which gives
6:17
Speaker 4: sort of a checklist for adjudicators to use to determine
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Speaker 4: whether someone is a public charge or not. Their first
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Speaker 4: group here is that that violates the statute because the
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Speaker 4: statute means that specific types of benefits period it doesn't
6:34
Speaker 4: mean anything you want it's not a broad sort of
6:39
Speaker 4: let's look at this entire person's life and make a
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Speaker 4: determination it means specific benefits and the reason they claim
6:45
Speaker 4: that is because there have been several congressional efforts to
6:50
Speaker 4: try to change the 1952 statute meaning of what a
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Speaker 4: public charge was And all of those congressional efforts have failed,
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Speaker 4: meaning that if you could already look at everything, you
7:03
Speaker 4: wouldn't have needed those congressional efforts to try to change
7:08
Speaker 4: this statute. And so in the Second Circuit, which is
7:12
Speaker 4: where the case was filed in New York, there's a
7:14
Speaker 4: case called New York v. DHS that came out in 2020,
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Speaker 4: which says that a public charge is someone who's unable
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Speaker 4: to support themselves through work, savings, or family ties, and
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Speaker 4: that mere receipts from the government of benefits is not dependency.
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Speaker 4: And so from that standpoint, that means that you can't
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Speaker 4: just unilaterally disqualify people for the bases that are in
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Speaker 4: these checklists. But then they say, but if you're saying
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Speaker 4: that these checklists are not binding, then it's a question of, well,
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Speaker 4: what are they there for? They're contrary. But they say
7:49
Speaker 4: if they are binding... Then the issue is then that
7:52
Speaker 4: that's really a regulation. You needed to do that using
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Speaker 4: notice and comment. And they didn't use notice and comment,
7:59
Speaker 4: which is whenever you do any new thing administratively, if
8:02
Speaker 4: it's of any substance, you have to give 60 days
8:07
Speaker 4: or 30 days or some amount of notice and you
8:09
Speaker 4: have to give the public a chance to comment on it.
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Speaker 4: And they didn't do that here. And then in addition,
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Speaker 4: the final claim is that to the extent also that
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Speaker 4: they say this does matter, then they didn't consider the
8:22
Speaker 4: reliance interest. This has been a thing since the time
8:24
Speaker 4: of the DACA decision, where Justice Roberts said that they
8:28
Speaker 4: didn't give sufficient scrutiny to the reliance interest that people
8:33
Speaker 4: had already done when they took DACA.
8:35
Speaker 5: This is the same thing.
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Speaker 4: They didn't consider alternatives or the reliance interest of what
8:40
Speaker 4: people did when they took benefits that are now going
8:42
Speaker 4: to be held against them when they thought it was legal.
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Speaker 4: And so from that standpoint, that that would also be
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Speaker 4: arbitrary and capricious. So all three of those are interesting.
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Speaker 4: But the point is, one way or another, the states
8:56
Speaker 4: are likely to prevail in the Second Circuit because they've
8:59
Speaker 4: already prevailed during an initial Trump administration rule in 2020.
9:03
Speaker 4: What will be more interesting will be what the Supreme
9:06
Speaker 4: Court does.
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Speaker 2: The Supreme Court has ruled for the Trump administration in
9:10
Speaker 2: almost every case. What do you think they'll do here?
9:14
Speaker 4: I do wonder if the Supreme Court will want to
9:17
Speaker 4: allow unfettered discretion to adjudicators without any kind of notice
9:24
Speaker 4: and comment. I do think that's going to be potentially
9:28
Speaker 4: something that might bother Five justices, maybe, to the Supreme Court.
9:33
Speaker 4: But we'll have to wait and see. Because they did
9:34
Speaker 4: give this unfettered discretion to the CBP to not let
9:39
Speaker 4: in lawful permanent residents if they thought there was a
9:41
Speaker 4: problem with their case. And they just assumed that the
9:44
Speaker 4: CBP would act in good faith. That was a decision
9:47
Speaker 4: this last term. So maybe they will assume this public
9:50
Speaker 4: charge power will always be used in good faith and
9:53
Speaker 4: nobody will ever be discriminated against.
9:56
Speaker 5: But maybe they won't.
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Speaker 4: Maybe they will say the government doesn't a check on
10:00
Speaker 4: this and you can't just have a sub-regulatory guidance that
10:04
Speaker 4: says whoever the specific person thinks that day is a
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Speaker 4: public charge now suddenly has to leave the country.
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Speaker 2: It does seem very vague. Manami said it was intentionally vague.
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Speaker 2: So what do you think the government's argument is?
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Speaker 4: Well, the government's argument is going to be that the statute,
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Speaker 4: as it was passed in the 1800s, is the original statute,
10:27
Speaker 4: is the same basic version, and that was to give
10:31
Speaker 4: this unfettered guidance to the adjudicators. There's a very famous
10:35
Speaker 4: case from the late 1800s that I teach my immigration
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Speaker 4: law students called Eku versus United States. There's a Japanese
10:41
Speaker 4: woman who comes with the equivalent nowadays of $ 4, 800 in
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Speaker 4: her wallet, but because she doesn't speak English, there's sort
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Speaker 4: of this miscommunication. They're asking her what she's going to
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Speaker 4: do here, and she can't explain, and they say, you're
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Speaker 4: a public charge. You're not allowed to be here. And
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Speaker 4: then that case goes to the Supreme Court of all
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Speaker 4: places over this one person's public charge issue in the 1800s.
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Speaker 4: So it's interesting that they had this kind of advocacy
11:09
Speaker 4: litigation even back then in the 1800s. And The Supreme
11:14
Speaker 4: Court says, look, the statute says what it says. It
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Speaker 4: says that the individual adjudicator can make this adjudication, and
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Speaker 4: who are we, the Supreme Court, to interfere with this?
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Speaker 4: At the end of the day, this is what the
11:26
Speaker 4: Congress wrote. The Congress said who had to make the adjudication,
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Speaker 4: and we're not going to create any kind of federal
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Speaker 4: court interference with this statute that was otherwise passed by
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Speaker 4: Congress and signed by the president.
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Speaker 2: So.
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Speaker 4: If they can get the Supreme Court to say all
11:43
Speaker 4: that is old is new again, then they can bring
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Speaker 4: us back to the 1800s and restore that understanding of
11:50
Speaker 4: the immigration law.
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Speaker 2: Leon, the mayor of New York and the attorney general
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Speaker 2: of New York said that because of this, people won't
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Speaker 2: use the safety nets that are available to them. I mean,
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Speaker 2: do you think that that's true, that they'll stop for
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Speaker 2: fear of what may happen?
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Speaker 4: I think it becomes complicated because... you would have to
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Speaker 4: make two adjudications in your own mind. Number one, do
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Speaker 4: I really need the benefits? And then number two, when
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Speaker 4: do I think I'm going to be in front of immigration?
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Speaker 4: So if you think you could wait until there's an
12:24
Speaker 4: administration that would remove said public charge rule, then you
12:29
Speaker 4: would take the benefits because you would say, well, whenever
12:31
Speaker 4: I apply one day, It won't be a problem because
12:34
Speaker 4: that rule will be gone by then. But if you
12:37
Speaker 4: think this rule would be in place forever, then the
12:41
Speaker 4: rational move would be not to accept any public benefits
12:44
Speaker 4: because you could be denied for accepting any public benefits.
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Speaker 4: And the real trick is this. The individual that's the
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Speaker 4: foreign national themselves... rarely can get any benefits. The only
12:54
Speaker 4: one they can get is something called emergency Medicaid, which
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Speaker 4: is basically you're dying and they got to let you
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Speaker 4: in the hospital and somebody's got to cover it. So
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Speaker 4: that's that. That's emergency Medicaid. But now what they're talking
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Speaker 4: about is, OK, you are here as a foreign national.
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Speaker 4: You have a U.S. citizen child. your U.S. citizen child
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Speaker 4: is poor because you're poor, and they get food stamps.
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Speaker 4: So before, that wasn't held against the foreign national applicant
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Speaker 4: because it was the child who was getting the food stamps.
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Speaker 4: It wasn't the foreign national. Now that's being held against
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Speaker 4: the foreign national under this guidance where they would say, well,
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Speaker 4: it's your fault. You had this child, and now the U.S.
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Speaker 4: taxpayers are paying for this child's food. Why would we
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Speaker 4: reward you with a green card today? in exchange for
13:43
Speaker 4: what you've done here. But the problem is, at the
13:46
Speaker 4: end of the day, this person is not technically the
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Speaker 4: public charge.
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Speaker 5: It's the citizen.
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Speaker 4: And even if you were to deport the foreign national,
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Speaker 4: the citizen still might stay and still might be getting
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Speaker 4: food stamps. So it might not even change anything from
14:02
Speaker 4: that perspective. So there's a lot there. And I can
14:06
Speaker 4: understand a lot of the thinking on all the sides here.
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Speaker 4: But the point is, now that parent may not get
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Speaker 4: those food stamps for that child. And so then, yes,
14:18
Speaker 4: that might happen now because of this rule.
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Speaker 2: First stop, though, district court. Thanks so much, Leon. That's
14:24
Speaker 2: Leon Fresco of Holland and Knight. Coming up next, is
14:27
Speaker 2: there a way to fix the shadow docket? This is Bloomberg.
14:33
Speaker 2: The Supreme Court's emergency or shadow docket has grown in
14:37
Speaker 2: size and importance. Rulings that are often issued without a
14:41
Speaker 2: detailed explanation yet are binding on lower courts. Justice Katonji
14:46
Speaker 2: Brown-Jackson is one of the justices who've criticized the shadow
14:51
Speaker 2: docket for its lack of transparency and accountability.
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Speaker 6: So the court has left confusion. in its wake. And
14:59
Speaker 6: it offers little guidance because it ordinarily does not spell
15:02
Speaker 6: out the circumstances, giving rise to its own equities evaluation,
15:07
Speaker 6: making it incredibly difficult for lower courts to understand which
15:12
Speaker 6: facts were important to the state determination and thus identify
15:17
Speaker 6: like cases.
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Speaker 2: In a new paper, Columbia Law School professors Thomas Schmidt
15:23
Speaker 2: and Kellen Funk say that over the past 15 years,
15:27
Speaker 2: the Supreme Court has confronted a growing number of its
15:30
Speaker 2: most consequential public law disputes through the shadow docket, and
15:35
Speaker 2: that the rising number of such rulings and the hasty
15:38
Speaker 2: way they're decided may lead to charges of arbitrariness and
15:43
Speaker 2: lack of transparency. Professor Schmidt joins me now. Can you
15:48
Speaker 2: explain why the shadow docket has grown so much in
15:51
Speaker 2: size and significance?
15:54
Speaker 5: Well, it's a difficult question.
15:55
Speaker 1: And let me just begin with some numbers, June, just
15:58
Speaker 1: to remind everybody how dramatically this has grown in the
16:02
Speaker 1: last decade or so. So during the eight years of
16:06
Speaker 1: the Obama administration, plus the eight years of the Bush administration,
16:09
Speaker 1: so six years total, the court got, I believe, six
16:12
Speaker 1: or eight applications from the government to intervene and lift
16:18
Speaker 1: the lower court's injunction with respect to a federal policy.
16:21
Speaker 1: that has exploded in recent years. So the latest number
16:25
Speaker 1: that I saw was about 37 applications from the second
16:28
Speaker 1: Trump administration in the first, what, year and a half,
16:31
Speaker 1: almost two years of the administration. So there's just been
16:34
Speaker 1: a dramatic increase. And I think that's due to a
16:38
Speaker 1: number of different reasons. I think one is that the
16:41
Speaker 1: executive branch and the president in particular has gotten a
16:44
Speaker 1: little bit more aggressive over time in invoking legal authorities
16:48
Speaker 1: to implement its preferred policies, right, without Congress. And that's
16:53
Speaker 1: led to some litigation that has created a series of
16:56
Speaker 1: injunctions in lower courts. And the Supreme Court itself has
16:59
Speaker 1: felt pressure to intervene and has intervened in a lot
17:02
Speaker 1: of cases.
17:03
Speaker 5: So that's one piece of the story.
17:04
Speaker 1: But I think another piece of the story, unquestionably, is
17:07
Speaker 1: that the court has been more open to these sorts
17:10
Speaker 1: of applications. And it's applied its own stay and injunction
17:14
Speaker 1: standards in a way that invite these applications.
17:17
Speaker 5: So to a certain extent, litigants are pushing on an
17:20
Speaker 5: open door.
17:20
Speaker 1: And that's another reason that there's been so much of
17:23
Speaker 1: a growth in this side of the court's business.
17:25
Speaker 2: Is it also because the court is taking so many
17:28
Speaker 2: fewer cases than it did years ago on the regular docket?
17:32
Speaker 2: It seems to go down all the time.
17:35
Speaker 1: That may be part of it, although there's a little
17:37
Speaker 1: bit of a chicken and egg problem here. So in
17:40
Speaker 1: other words, one thing that could be happening is the
17:42
Speaker 1: court has just decided for its own internal reasons to
17:46
Speaker 1: take fewer cases that has led to having more time
17:49
Speaker 1: to deal with more emergency applications, and therefore they've adjusted
17:52
Speaker 1: the relevant standards to make that possible. Another version of
17:55
Speaker 1: the story, and this is the version that I happen
17:58
Speaker 1: to believe, June, is that the court has gotten much
18:01
Speaker 1: more active on the shadow or what my co-author Kellen
18:05
Speaker 1: and I call the equity docket. And as a result,
18:08
Speaker 1: it just says less time for the merits cases, right?
18:11
Speaker 1: So in other words, I think partly at least the
18:14
Speaker 1: shrinking of the merits docket is due to the fact
18:16
Speaker 1: that the court anticipates term after term that it's going
18:20
Speaker 1: to be doing so much in a shadow interim emergency
18:24
Speaker 1: or equity posture, whatever phrase you want to use.
18:27
Speaker 2: Explain why you think it'd be better to call this
18:29
Speaker 2: the equity docket.
18:31
Speaker 1: I think it's better because that fundamentally describes what the
18:34
Speaker 1: court is doing, right? I mean, what litigants are doing.
18:38
Speaker 1: when they come to the court in this posture, is
18:40
Speaker 1: asking the court to set the status of a legal
18:42
Speaker 1: policy or to set the status between the parties while
18:46
Speaker 1: a lawsuit is pending. And traditionally, historically, that was one
18:50
Speaker 1: of the core functions of courts of equity. And so
18:53
Speaker 1: what we're trying to do by using this phrase is
18:56
Speaker 1: just connecting the court's activities in recent years on the
19:02
Speaker 1: equity or shadow docket to a long tradition of adjudication
19:06
Speaker 1: because we think there are actually some useful lessons to
19:08
Speaker 1: be drawn in that connection.
19:10
Speaker 2: There's a four-part test for equitable intervention that courts use.
19:15
Speaker 2: Does the Supreme Court take into account and decide on
19:19
Speaker 2: each of those four factors?
19:22
Speaker 1: So the four-factor test that the court has given is
19:25
Speaker 1: irreparable harm, the likelihood of success on the merits, the
19:28
Speaker 1: balance of the equities, and the public interest. Now, it's
19:33
Speaker 1: a little bit difficult to answer your question for a
19:35
Speaker 1: couple of reasons, right? So first of all, so often
19:39
Speaker 1: these rulings on what we call the equity docket are unexplained.
19:43
Speaker 1: So when a ruling is unexplained, there's just no way
19:45
Speaker 1: to assess which of the factors the court considered. Second,
19:49
Speaker 1: sometimes when they are explained, they only focus in on
19:51
Speaker 1: one factor and don't really address the other factors. So again,
19:54
Speaker 1: it's not really clear in that circumstance what was an
19:56
Speaker 1: ingredient in the court's decision making. And then in other cases,
20:00
Speaker 1: the court kind of recites the factors in a rote
20:03
Speaker 1: sort of way, but doesn't really.
20:04
Speaker 5: Address all of them.
20:05
Speaker 1: So One thing that Kellen, Professor Funk, and I argue
20:09
Speaker 1: for in this paper is a little bit more transparency
20:11
Speaker 1: in the rationale for rulings and just a little bit
20:14
Speaker 1: more sensitivity, a little bit more attention to the traditional
20:19
Speaker 1: inputs of equitable decision-making when the court takes a case
20:22
Speaker 1: on the equity docket.
20:23
Speaker 2: Will you explain what you mean by paying more attention
20:27
Speaker 2: to the traditional inputs of equitable decision-making?
20:32
Speaker 1: Yeah, so maybe it'd be helpful to talk about this
20:34
Speaker 1: in the context of a case that's currently pending in
20:38
Speaker 1: the Supreme Court on its equity docket. So I'm thinking
20:42
Speaker 1: of the mail-in voting case.
20:44
Speaker 2: We're all thinking about that and waiting for that.
20:47
Speaker 5: Yes. So that's pending right now.
20:49
Speaker 1: We're all waiting with bated breath for the Supreme Court's
20:52
Speaker 1: ruling in that case. And let me explain what I
20:55
Speaker 1: mean about focusing on the equities, right?
20:57
Speaker 5: So one way that.
20:59
Speaker 1: You could answer the government's petition in the mail-in voting
21:02
Speaker 1: case is to.
21:03
Speaker 5: Say, the government is right on the merits.
21:07
Speaker 1: The United States Postal Service has the statutory authority to
21:10
Speaker 1: promulgate this rule. And as a result, we're going to
21:13
Speaker 1: grant the government's application and allow it to implement this
21:16
Speaker 1: rule before the new election, right? That would be a
21:19
Speaker 1: very merits-focused way of resolving the case. Another way of
21:22
Speaker 1: resolving the case would be to say, well, what's the
21:24
Speaker 1: balance of the equities here? And has the government really
21:27
Speaker 1: shown that it can prevail on that factor of the
21:30
Speaker 1: equitable test. And if you look at it from that
21:32
Speaker 1: point of view, I don't think this is a particularly
21:34
Speaker 1: close case at all, right? Because we think about the
21:37
Speaker 1: equities on one side, we have tremendous possible harm in
21:42
Speaker 1: the form of voter disenfranchisement and just chaos in election administration, right?
21:48
Speaker 5: Stemming from the fact that the U.S.
21:50
Speaker 1: Postal Service rule conflicts with state law in some ways,
21:53
Speaker 1: And this is all happening so soon before the election,
21:56
Speaker 1: it's not even clear the federal government will be able
21:57
Speaker 1: to get this up and running, right? So we have
21:59
Speaker 1: all of those harms on one side of the ledger.
22:01
Speaker 1: And it's very difficult to identify what the harm on
22:04
Speaker 1: the other side of the ledger is if you look
22:06
Speaker 1: at the government's briefing, right? One thing the government says is, well,
22:09
Speaker 1: our goals would be thwarted, but that's kind of an abstraction, right?
22:12
Speaker 1: That's not really focusing in on the facts on the
22:15
Speaker 1: ground as we would want a court of equity The
22:18
Speaker 1: other thing the government gestures towards is voter fraud. That could,
22:21
Speaker 1: of course, be relevant to the equities. But the problem
22:24
Speaker 1: is the government doesn't really, in its briefing, give any
22:27
Speaker 1: evidence for what that problem is and how this rule
22:30
Speaker 1: in particular could help.
22:31
Speaker 4: Right.
22:32
Speaker 1: So this is all to say, I think this would
22:34
Speaker 1: be a very straightforward case for the court to resolve
22:38
Speaker 1: on the equities without having to get into the thorny
22:41
Speaker 1: merits issues about the USPS's statutory authority.
22:46
Speaker 2: Then why do you think the court didn't resolve it
22:48
Speaker 2: the first time it came around and instead, you know,
22:51
Speaker 2: said that the case wasn't right because the post office
22:55
Speaker 2: hadn't passed regulations? I mean, I wonder about that because
22:59
Speaker 2: every legal expert says it's clear that it's not for
23:02
Speaker 2: the administration, it's not for the executive branch, for the
23:06
Speaker 2: postal service, for federal agencies to be making rules about elections.
23:10
Speaker 2: So why did they do that? It seemed bizarre.
23:14
Speaker 1: Yeah, I mean, I think one way to look at
23:17
Speaker 1: it is to say it was so clear that all
23:20
Speaker 1: of this chaos and uncertainty was coming and the Supreme
23:23
Speaker 1: Court should have got involved. I suspect the way the
23:26
Speaker 1: court majority looked at it was that whatever chaos we
23:29
Speaker 1: find to be coming down the road, if an application
23:32
Speaker 1: to us or a motion in a lower court for
23:35
Speaker 1: a preliminary injunction is premature, that is to say it's
23:38
Speaker 1: filed before the relevant rule challenge is even promulgated.
23:41
Speaker 5: A court shouldn't get involved.
23:43
Speaker 1: And you could even associate that with certain equitable traditions, too,
23:47
Speaker 1: about requiring plaintiffs to show irreparable harm. So they may
23:50
Speaker 1: have had their own equitable reasons initially to grant it,
23:53
Speaker 1: even if in retrospect that decision might look imprudent.
23:56
Speaker 2: To the Trump administration, everything is an emergency, whether it's
24:00
Speaker 2: an immigration law or something else. It's always an emergency
24:03
Speaker 2: that they're going to the Supreme Court on. I mean,
24:06
Speaker 2: should the court at some point say this isn't an
24:08
Speaker 2: emergency anymore? They do put some of these on the
24:11
Speaker 2: regular docket rarely, but they do that. I mean, should
24:15
Speaker 2: they stop taking every single case that the Trump administration
24:19
Speaker 2: says is an emergency?
24:21
Speaker 1: Yeah, I think there's a lot to that, June. And
24:24
Speaker 1: I would think about it in a couple of different ways.
24:25
Speaker 1: First of all, one of the most important requirements for
24:29
Speaker 1: getting on the equity docket and historically to get into
24:32
Speaker 1: a court of equity was that you had to show
24:33
Speaker 1: irreparable harm. And the reason you had to show irreparable
24:36
Speaker 1: harm is that the courts of law, in the case
24:39
Speaker 1: of the Supreme Court, right, the merits docket, are open
24:42
Speaker 1: for adjudication of the case in this non-expedited posture, right?
24:46
Speaker 1: So one way that the court could respond to this
24:49
Speaker 1: circumstance is to just insist on government showing of irreparable
24:54
Speaker 1: harm in every case when they come to the court, right?
24:57
Speaker 1: And I think the pattern so far is that the
24:59
Speaker 1: court has been taking the administration at its word when
25:02
Speaker 1: it claims harm. And the result has been that, as
25:05
Speaker 1: we talked about before, the door to the equity docket
25:08
Speaker 1: has swung open. So I think one way to deal
25:11
Speaker 1: with this problem is for the court to insist in
25:14
Speaker 1: a more granular factual sense on what exactly the emergency
25:19
Speaker 1: is and why the government is going to suffer irreparable harm.
25:22
Speaker 1: But the second part of my answer to your question, June,
25:25
Speaker 1: is that you're right, that not all of these cases
25:27
Speaker 1: present genuine emergencies. And this is one reason that Kellen
25:31
Speaker 1: and I are skeptical about of the emergency docket label, right?
25:36
Speaker 1: Because while it may be true that some of these
25:38
Speaker 1: cases present emergencies, right? A petition from non-citizens hours before
25:44
Speaker 1: deportation would be an obvious case, right? If you think
25:46
Speaker 1: about the AARP case, for example, that's an emergency. Other cases,
25:51
Speaker 1: it's much less clear that these are emergencies, right? If
25:53
Speaker 1: you think about the Lisa Cook case, that was technically
25:56
Speaker 1: resolved on the equity docket, right? The court never granted
25:59
Speaker 1: certiorari in the case. But it was pending for several months.
26:03
Speaker 1: It was pending at least as long as the typical
26:06
Speaker 1: merits case, right? So in that circumstance, we think there's
26:10
Speaker 1: no danger in slowing down a little bit and issuing
26:13
Speaker 1: an opinion that explains kind of point by point why
26:16
Speaker 1: the equitable standard is met.
26:17
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
26:20
Speaker 2: this conversation with Professor Thomas Schmidt. Those many cases where
26:24
Speaker 2: the government says there are national security concerns, whether it's immigration...
26:30
Speaker 2: or Trump's White House ballroom. I'm June Grosso, and you're
26:34
Speaker 2: listening to Bloomberg. The Supreme Court's emergency, or shadow docket,
26:41
Speaker 2: has grown in size and importance. Rulings that are often
26:44
Speaker 2: issued without a detailed explanation yet are binding on lower courts.
26:50
Speaker 2: I've been talking to Columbia Law School professor Thomas Schmidt
26:53
Speaker 2: about his paper, The Equity Docket, written with Columbia Law
26:57
Speaker 2: School professor Kellen Funk. whether it's ICE protesters or offshore
27:03
Speaker 2: wind farms or the White House ballroom, the Trump administration
27:08
Speaker 2: seems to continually invoke national security as a justification for
27:15
Speaker 2: its actions, a justification it often uses in its applications
27:20
Speaker 2: on the shadow docket. Do you think the court almost
27:24
Speaker 2: always falls in line with the administration when it makes
27:27
Speaker 2: those national security arguments?
27:29
Speaker 1: There's no question that historically courts have been reluctant to
27:34
Speaker 1: involve themselves in cases where the executive branch is making
27:39
Speaker 1: strong claims of national security. On the other hand, the
27:42
Speaker 1: court has said again and again that the invocation of
27:44
Speaker 1: national security is not a talisman, right? It doesn't ward
27:47
Speaker 1: off judicial review sort of automatically. And I think the
27:50
Speaker 1: broader pattern of litigation in the Trump administration, not just
27:54
Speaker 1: in the Supreme Court, but in the lower courts, is
27:56
Speaker 1: a certain amount of skepticism to claims that the Justice
28:01
Speaker 1: Department is making, right? This is sometimes couched in terms
28:04
Speaker 1: of the erosion of the presumption of regularity. The idea
28:08
Speaker 1: being we can't necessarily take the Justice Department at its
28:12
Speaker 1: word and all of the claims that it makes in
28:14
Speaker 1: its various briefs. So I think the Trump administration is
28:17
Speaker 1: trying to tap into a history or a tradition of
28:21
Speaker 1: judicial reticence, but I'm not sure that it's always working.
28:26
Speaker 2: So a lot of times the Decisions on the shadow
28:30
Speaker 2: docket are not accompanied by long decisions, sometimes not accompanied
28:36
Speaker 2: by any decision, just an order. So you don't know
28:38
Speaker 2: who voted which way and why. You think that it
28:42
Speaker 2: would be helpful to have written opinions. I'm wondering if
28:46
Speaker 2: the reason that they don't do written opinions is because
28:49
Speaker 2: it takes longer, it would slow down the process because
28:52
Speaker 2: all the justices have to look at the opinions and
28:55
Speaker 2: some may want to dissent or concur.
28:59
Speaker 5: I think that's quite possible.
29:01
Speaker 1: And whether to write an opinion and how long an
29:03
Speaker 1: opinion to issue, those are inevitably sort of prudential judgments
29:07
Speaker 1: that are going to be happening within the court. But
29:09
Speaker 1: I don't necessarily think that issuing opinions slows things down.
29:14
Speaker 1: And the most important reason is that the court does
29:16
Speaker 1: not necessarily have to issue a full-fledged opinion at the
29:20
Speaker 1: moment that it rules, right? So for example, an individual
29:24
Speaker 1: justice alone can issue an administrative stay while an opinion
29:28
Speaker 1: is being worked out, right? So that would preserve the
29:31
Speaker 1: status quo or allow the court at least to set
29:33
Speaker 1: the status quo.
29:34
Speaker 5: While it's issuing an opinion.
29:36
Speaker 1: It can also issue an order as a majority and
29:38
Speaker 1: then issue an opinion afterwards. I mentioned the AARP case
29:42
Speaker 1: a moment ago. That's exactly what happened there. A very
29:45
Speaker 1: brief order on the night that the non-citizens first approached
29:48
Speaker 1: the court about their imminent deportation and then a much
29:51
Speaker 1: longer opinion a few days later.
29:53
Speaker 2: Along this line, district court judges have sometimes complained in
29:59
Speaker 2: various ways about following these orders on the emergency docket
30:05
Speaker 2: when there are no decisions explaining the facts or the reasoning.
30:11
Speaker 2: And Justice Gorsuch at one point wrote in an opinion that, yes,
30:16
Speaker 2: they have to follow the docket, taking to task one judge.
30:21
Speaker 2: I mean, is it clear that District court judges have
30:25
Speaker 2: to follow these decisions on the emergency docket?
30:29
Speaker 1: So last year, in a case called Boyle, the Supreme
30:33
Speaker 1: Court made clear that when it rules on the emergency docket,
30:37
Speaker 1: the lower court should follow it in like cases. That
30:40
Speaker 1: is to say, by ruling on the emergency docket or
30:42
Speaker 1: the equity docket, the court has shown how it regards
30:46
Speaker 1: the equities in the case to balance out, and lower
30:49
Speaker 1: courts should follow that lead. Now, having said that, following
30:53
Speaker 1: the Supreme Court is perhaps easier said than done, right?
30:56
Speaker 1: To the extent many of these orders are unreasoned, it's
30:59
Speaker 1: not clear what the basis was and therefore not clear
31:01
Speaker 1: exactly what it is that a lower court has to follow.
31:05
Speaker 1: The second thing is that often the court's rulings on
31:09
Speaker 1: the equity docket are foreshadowing changes in the law that
31:14
Speaker 1: make it very difficult for a lower court to understand
31:17
Speaker 1: what the law is right now. So one thing that
31:20
Speaker 1: Kellen and I talk about in the paper is the
31:22
Speaker 1: old equitable maxim that equity follows the law. And we
31:26
Speaker 1: think that's fundamentally sound. And when the court takes a
31:28
Speaker 1: case on the equity docket, it should be applying existing law, right?
31:33
Speaker 1: Not anticipating a change in law that might happen down
31:35
Speaker 1: the road. To make this a little less abstract, maybe
31:38
Speaker 1: I'll mention the slaughter case in which the Supreme Court
31:43
Speaker 1: overturned Humphrey's executor and the principle of independent agencies that
31:46
Speaker 1: have been embodied in that case. Now, if you're a
31:50
Speaker 1: lower court judge before slaughter, on the one hand, you're
31:53
Speaker 1: looking at a unanimous majority opinion in Humphrey's executor upholding
31:57
Speaker 1: the FTC. On the other hand, you're looking at a
32:00
Speaker 1: mostly unreasoned order by the Supreme Court just relying on
32:04
Speaker 1: harm to the executive branch while purporting not to disturb
32:07
Speaker 1: Humphrey's executor that allowed the Trump administration to move forward
32:11
Speaker 1: with firing a commissioner of the FTC.
32:13
Speaker 5: It's not clear to me that looking at that, it's
32:16
Speaker 5: plain what the duty of a lower court judge is.
32:18
Speaker 2: Let's talk about the ballroom case because the court there
32:21
Speaker 2: went off on standing. By doing that, the ballroom is
32:25
Speaker 2: going to get built. I mean, over the objection of
32:29
Speaker 2: the three liberals and the chief justice, it's basically allowing
32:33
Speaker 2: the event to happen. It's not preserving the status quo.
32:37
Speaker 2: So the ballroom will be a done deal. And that
32:40
Speaker 2: struck me as something that shouldn't have been handled in
32:43
Speaker 2: the way it was. I mean, it just struck me
32:45
Speaker 2: as very odd.
32:47
Speaker 5: I agree with you, June.
32:48
Speaker 1: And I think the equity docket idea, our paper, is
32:52
Speaker 1: a helpful way to think this through, right? So one
32:55
Speaker 1: thing that courts of equity would do is to preserve
32:58
Speaker 1: the status quo while litigation is pending to enable.
33:02
Speaker 5: A court to rule on the merits of a case.
33:04
Speaker 1: And as you point out here, it is very possible
33:07
Speaker 1: that by the time a plaintiff withstanding under the court's
33:10
Speaker 1: new opinion comes along and is able to sue, the
33:13
Speaker 1: ballroom will be built and there will in fact be
33:16
Speaker 1: no way to adjudicate the merits of the case because
33:18
Speaker 1: it will be too late. So one way to think
33:20
Speaker 1: about this in equitable terms is just to say this
33:24
Speaker 1: looks illegal under the relevant authorities for the reasons that
33:28
Speaker 1: Chief Justice Robert gave in his dissent. I have not
33:32
Speaker 1: seen a plausible legal justification for moving ahead with this
33:36
Speaker 1: without other kinds of approvals. And essentially, what the administration
33:40
Speaker 1: was doing in coming to the Supreme Court was asking
33:43
Speaker 1: for its equitable intervention to allow it to get away
33:47
Speaker 1: with in a legal project, right? And that's a fundamentally
33:51
Speaker 1: inequitable use of a court of equity.
33:54
Speaker 5: The way you could put.
33:54
Speaker 1: That in more legal or litigation terms would be to
33:58
Speaker 1: say the administration came to the court with unclean hands.
34:02
Speaker 1: Or you might say that he who seeks equity must
34:04
Speaker 1: do equity. And essentially, enlisting the Supreme Court in this circumstance,
34:08
Speaker 1: I think violated those equitable maxims.
34:10
Speaker 2: Can you sum up what changes you suggest?
34:14
Speaker 1: So there are a lot of lessons that one could draw,
34:17
Speaker 1: and we kind of cluster our lessons around the various
34:21
Speaker 1: prongs of the stay or injunction tests that you and
34:24
Speaker 1: I were discussing before. So the first point is just
34:28
Speaker 1: that the court should explain itself, right? It's really important
34:33
Speaker 1: in these high-profile cases that People looking at the court
34:37
Speaker 1: believe it's deciding the case on the basis of principles
34:42
Speaker 1: that it would adhere to if the partisan shoe were
34:45
Speaker 1: on the other foot, right? And so one thing that's
34:48
Speaker 1: important is for the court to explain itself and to
34:51
Speaker 1: develop essentially a kind of law or precedent of the
34:54
Speaker 1: equity docket that can enable it to discharge its responsibilities
34:58
Speaker 1: there in a way that's transparent and that people can
35:01
Speaker 1: look at and appreciate. So that would be the first thing.
35:03
Speaker 1: The second is what you and I were talking about before,
35:06
Speaker 1: which is that equity follows the law. So when the
35:09
Speaker 1: court takes a case on the equity docket, it should
35:12
Speaker 1: not use that as an opportunity to overturn precedents of longstanding,
35:16
Speaker 1: but rather to apply the law as it exists to
35:19
Speaker 1: that case. A third thing, which again, we talked about briefly,
35:23
Speaker 1: is to insist on irreparable harm for any applicant that
35:27
Speaker 1: comes to the court. And one of the big reasons
35:30
Speaker 1: that the equity docket, in our view, has gotten so
35:33
Speaker 1: out of whack and has gotten so important relative to
35:36
Speaker 1: the merits docket is that the court has essentially adopted
35:40
Speaker 1: an automatic rule that if a policy is enjoined, the
35:44
Speaker 1: government is irreparably harmed because there's a kind of injury
35:48
Speaker 1: to the government's sovereign interest.
35:49
Speaker 5: In seeing its policies implemented. Right. If that's your rule.
35:54
Speaker 1: The equity docket is not going to be extraordinary relative
35:58
Speaker 1: to the merits docket as the courts of equity were
36:00
Speaker 1: relative to the courts of law, right? Because that is
36:03
Speaker 1: going to be the case in virtually every application that
36:06
Speaker 1: comes to the court. And so one important thing we
36:09
Speaker 1: think is to tighten the requirement of irreparable harm to
36:12
Speaker 1: make it not so automatic that the government can get
36:14
Speaker 1: in all of the time. And then the final point
36:17
Speaker 1: is just to remember that an important function of a
36:21
Speaker 1: court sitting in equity is to balance equity the equities, right?
36:24
Speaker 1: So in a case like the mail-in ballot case that
36:26
Speaker 1: we were just discussing, the court should not lose sight
36:29
Speaker 1: of the fact that an important part of its role
36:32
Speaker 1: is to think more broadly about the equities and the
36:34
Speaker 1: public interest and not just its preliminary instincts about the
36:38
Speaker 1: merits of the case.
36:39
Speaker 2: Seems like all that would make things easier for the
36:42
Speaker 2: lower courts. Thanks so much for joining me today. That's
36:46
Speaker 2: Professor Thomas Schmidt of Columbia Law School. And that's it
36:50
Speaker 2: for this edition of the Bloomberg Law Show. Remember, you
36:52
Speaker 2: can always get the latest legal news on our Bloomberg
36:55
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36:59
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37:05
Speaker 2: tune into the Bloomberg Law Show every weeknight at 10 p.m.
37:08
Speaker 2: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.