WEBVTT - Judges Block Trump Agenda Despite SCOTUS Ruling 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.440 --> 0:00:11.920 At the end of June, President Trump celebrated the Supreme 0:00:12.000 --> 0:00:16.120 Court's decision limiting the ability of federal judges to issue 0:00:16.200 --> 0:00:17.560 nationwide injunctions. 0:00:17.960 --> 0:00:21.920 Thanks to this decision, we can now promptly file to 0:00:22.000 --> 0:00:25.360 proceed with numerous policies that have been wrongly enjoined on 0:00:25.720 --> 0:00:29.480 a nationwide basis. And some of the cases we're talking 0:00:29.520 --> 0:00:34.639 about would be ending birthright citizenship, which now comes to the. 0:00:34.600 --> 0:00:38.920 Fore but a federal judge stop that from happening. And 0:00:39.000 --> 0:00:41.280 though it's clear the decision was a win for the 0:00:41.320 --> 0:00:45.600 Trump administration, how big a win has yet to be determined. 0:00:45.920 --> 0:00:49.000 In the last few weeks, federal judges have been using 0:00:49.040 --> 0:00:53.000 the alternative options offered by the justices to block the 0:00:53.040 --> 0:00:58.600 Trump agenda nationwide. For example, judges have blocked the enforcement 0:00:58.640 --> 0:01:02.880 of Trump's birthright CIS citizenship order, restored public health data 0:01:03.000 --> 0:01:08.039 to government websites, and struck down Trump's ban on asylum claims. 0:01:08.640 --> 0:01:11.680 Joining me to discuss just how much that Supreme Court 0:01:11.760 --> 0:01:16.000 decision will benefit the Trump administration is Carrie Kolonisi, a 0:01:16.040 --> 0:01:19.920 professor at the University of Pennsylvania. Carrie, Law School and 0:01:19.959 --> 0:01:23.600 director of the Penn Program on Regulation. Carrie, what did 0:01:23.600 --> 0:01:28.399 the majority suggest in the KASA decision as alternative paths 0:01:28.440 --> 0:01:30.800 to getting nationwide injunctions? 0:01:31.280 --> 0:01:34.600 Well, first of all, you still can get nationwide or 0:01:34.800 --> 0:01:38.160 universal injunctions. I mean that people use different language but 0:01:38.840 --> 0:01:42.240 basically the same thing, and you still under KASA can't 0:01:42.319 --> 0:01:48.880 get it when just an injunction confined to the parties 0:01:49.000 --> 0:01:53.680 would not provide the parties with complete relief. So we 0:01:53.800 --> 0:01:58.880 might see, and in fact, the court suggests even that 0:01:58.920 --> 0:02:04.640 the states that were challenging the Birthright Citizenship Order could 0:02:04.960 --> 0:02:09.800 well have a basis for getting a nationwide injunction because 0:02:10.560 --> 0:02:14.320 they need it for complete relief. People move from one 0:02:14.360 --> 0:02:16.360 part of the country to the other, from one state 0:02:16.400 --> 0:02:23.280 to the other states, and without some national uniformity in 0:02:23.320 --> 0:02:28.880 this litigation, states will not know whether they should be 0:02:28.919 --> 0:02:33.640 giving certain people federally funded benefits that apply only for citizens. 0:02:33.680 --> 0:02:37.040 For example, you know, they'll need to probably redo a 0:02:37.080 --> 0:02:40.600 lot of their administrative paperwork or hire more workers to 0:02:40.680 --> 0:02:42.200 handle applications. 0:02:42.680 --> 0:02:43.200 It'd be a. 0:02:43.200 --> 0:02:46.200 Quagmire for a lot of states. So, first of all, 0:02:46.240 --> 0:02:49.400 that's one key thing is that Trump BECAUSA doesn't say, 0:02:49.480 --> 0:02:54.280 like absolutely never a nationwide injunction, but probably you know, 0:02:54.400 --> 0:02:58.360 most cases that won't be possible. But in this case, 0:02:58.560 --> 0:03:02.280 with birthright citizenship and the states that are suing, it 0:03:02.680 --> 0:03:06.720 might be obtainable because anything short of that would not 0:03:06.880 --> 0:03:10.200 give the litigans complete relief. So that's one thing to know. 0:03:10.520 --> 0:03:14.160 But then the court, as you suggest, also says, gee, 0:03:14.160 --> 0:03:18.399 there can be other ways of getting what is essentially 0:03:19.080 --> 0:03:23.679 nationwide injunctive relief. We wouldn't call it a nationwide injunction, 0:03:23.840 --> 0:03:26.880 but it's essentially going to be the same thing, and 0:03:26.960 --> 0:03:32.440 that would be through certifying a class action. So litigants 0:03:32.480 --> 0:03:34.640 come forward all the time, We have the class actions 0:03:34.639 --> 0:03:38.640 all the time, where the court is making a decision 0:03:38.680 --> 0:03:43.240 that applies to anybody within a certified class nationwide, and 0:03:43.360 --> 0:03:47.400 in this birthright citizenship context, that would seem also to 0:03:47.560 --> 0:03:50.360 easily apply. There are some standards for what it takes 0:03:50.400 --> 0:03:54.040 to qualify for a class, but once that's met, then 0:03:54.080 --> 0:03:58.360 you could get nationwide relief. And a third option here 0:03:58.720 --> 0:04:02.440 is something under the Administrative Procedure Act, which is a 0:04:02.480 --> 0:04:06.880 statute that applies to any of the federal government agencies 0:04:07.120 --> 0:04:11.680 actions and there's a provision in the APA as it's 0:04:11.760 --> 0:04:17.520 known that allows courts to set aside unlawful actions. It's 0:04:17.520 --> 0:04:19.880 not just even allows it, but it says the court 0:04:20.000 --> 0:04:24.320 shall set aside unlawful actions, and that's a possibility. The 0:04:24.360 --> 0:04:28.760 Court in the cost case doesn't say much about this 0:04:29.000 --> 0:04:32.400 set aside option under the Administrative Procedure Act, but it 0:04:32.400 --> 0:04:35.280 does acknowledge in a footnote that it's not saying that 0:04:35.480 --> 0:04:40.280 it can't apply, and in fact, in various other contexts 0:04:40.279 --> 0:04:43.680 and Supreme Court oral arguments and the like, for example, 0:04:44.320 --> 0:04:50.000 and actually a longstanding tradition since at least the nineteen sixties, 0:04:50.240 --> 0:04:53.480 the federal courts have used this set aside language to 0:04:53.839 --> 0:04:59.279 hold unlawful a government policy, regulation, guidance that applies nationwide. 0:04:59.320 --> 0:05:02.800 If it's not lawful, it's hard to say how a 0:05:02.880 --> 0:05:08.280 government policy could still apply to folks who just don't 0:05:08.360 --> 0:05:10.599 happen to have the ability to go into court to 0:05:10.720 --> 0:05:14.520 challenge it. If it's unlawful, it's unlawful. And so anyway, 0:05:14.960 --> 0:05:19.400 there's a real possibility that both in the birthright citizenship 0:05:19.440 --> 0:05:22.600 case and in a lot of other cases, litigants are 0:05:22.600 --> 0:05:25.720 going to be able to still get what is essentially 0:05:25.880 --> 0:05:30.880 nationwide relief. Shutting down unlawful policies or at least potentially 0:05:30.920 --> 0:05:33.320 unlawful policies on a preliminary basis. 0:05:33.440 --> 0:05:36.440 On a national level, the New Hampshire Judge and the 0:05:36.440 --> 0:05:41.599 birthright Citizenship case certified a class action lawsuit on behalf 0:05:41.640 --> 0:05:46.960 of US born children or future children whose automatic citizenship 0:05:47.000 --> 0:05:51.599 could be jeopardized by President Trump's executive order, so wherever 0:05:51.640 --> 0:05:55.200 those children may be across the country, So in effect 0:05:55.240 --> 0:05:59.480 it's a nationwide injunction. Was he working within the confines 0:05:59.520 --> 0:06:02.599 of the S'preme Court's decision or was this sort of 0:06:03.040 --> 0:06:03.839 a workaround. 0:06:04.560 --> 0:06:08.880 Well, the New Hampshire Judge just recently says that, you know, 0:06:08.960 --> 0:06:12.320 I'm going to recognize, at least on a putative basis, 0:06:12.400 --> 0:06:15.280 that there's a class here. It meets all the requirements 0:06:15.279 --> 0:06:18.760 for a class action. Rule twenty three are into the 0:06:18.839 --> 0:06:23.600 Federal Rules of Civil Procedure outline for criteria that have 0:06:23.680 --> 0:06:27.159 to be met, and it certainly makes a lot of 0:06:27.200 --> 0:06:30.719 sense that those would be met. In the birthright citizenship context. 0:06:30.760 --> 0:06:33.040 You need a lot of people that would be affected 0:06:33.160 --> 0:06:36.080 such that the courts just wouldn't be able to bring, 0:06:36.240 --> 0:06:38.280 you know, maybe two or three or four or five 0:06:38.480 --> 0:06:41.159 lawsuits and bring them together and try them together. Maybe 0:06:41.160 --> 0:06:44.400 they were talking about thousands and in this case tens 0:06:44.400 --> 0:06:49.000 of thousands maybe right away, perhaps possible lawsuits. So there's 0:06:49.120 --> 0:06:54.800 a numerosity, there's a common factual and legal predicate that. 0:06:55.360 --> 0:06:56.120 Has to be met. 0:06:56.160 --> 0:06:59.800 And again it seems like this is pretty much the 0:07:00.360 --> 0:07:03.520 everybody is going to have the same criteria. Either were 0:07:03.520 --> 0:07:07.200 born in the United States or you weren't. And third, 0:07:07.480 --> 0:07:12.600 there really is an ability to effectively pursue relief for 0:07:12.720 --> 0:07:16.080 everybody by just trying a few people, and that there's 0:07:16.360 --> 0:07:20.480 fourth effective representation for the full class. And the judge 0:07:20.480 --> 0:07:22.520 in New Hampshire says, I think we've got that. I 0:07:22.520 --> 0:07:25.680 think we've got a class action here. So in the 0:07:25.680 --> 0:07:29.240 birthright citizenship case, that seems to be an avenue. And 0:07:29.280 --> 0:07:32.320 we still may also see in some of the state 0:07:32.440 --> 0:07:35.600 challengers coming forward, and a judge is saying we need 0:07:35.640 --> 0:07:39.200 to put in place a nationwide injunction to provide complete relief. 0:07:39.280 --> 0:07:40.720 So that's also still out there. 0:07:41.040 --> 0:07:45.280 A Trump administration spokesperson said the judge was abusing the 0:07:45.320 --> 0:07:49.040 class certification process. What do you think their arguments will 0:07:49.080 --> 0:07:52.320 be against the certification of this class when they appeal. 0:07:53.040 --> 0:07:55.440 Well, I think It's one thing to attack it from 0:07:55.480 --> 0:07:58.720 the podium or on social media and another in a 0:07:58.800 --> 0:08:02.240 court of law. You know, they've put forward some kind 0:08:02.280 --> 0:08:05.760 of contrived argument, but it seems in this particular context 0:08:06.000 --> 0:08:10.080 pretty clear case that a class action would apply. That's 0:08:10.120 --> 0:08:12.920 I think why the Supreme Court in the Acosta case, 0:08:13.320 --> 0:08:15.160 you know, spends a good bit of time talking about 0:08:15.160 --> 0:08:19.320 the class action. I think this made a good vehicle 0:08:19.480 --> 0:08:23.720 for the Court to pamp down on nationwide injunctions because 0:08:23.760 --> 0:08:27.480 it seemed like, in my view, and the Court's recognizing 0:08:27.560 --> 0:08:29.960 that this would have been the proper way of going 0:08:30.000 --> 0:08:34.280 about preceding here in a class action format. There may 0:08:34.280 --> 0:08:37.640 be other situations where it might be stretching it, and 0:08:38.000 --> 0:08:39.480 we'll have to see. I mean, I do know that 0:08:39.520 --> 0:08:42.560 the Supreme Court has been a little bit reining in 0:08:42.679 --> 0:08:47.200 even on how frequently lower court judges are certifying classes. 0:08:47.240 --> 0:08:51.520 But the factual and legal issues here really are the same. 0:08:51.880 --> 0:08:54.800 You know, you have parents that meet the criteria in 0:08:54.840 --> 0:08:58.640 the Executive Order and a child that's born in the 0:08:58.760 --> 0:09:02.360 United States. That's paradigmatic, and that's not a whole lot 0:09:02.440 --> 0:09:05.080 that's going to vary from one person to the next. 0:09:05.400 --> 0:09:10.400 In his concurring opinion, Justice Brett Kavanaugh mentioned the Administrative 0:09:10.559 --> 0:09:15.439 Procedure Act as providing the equivalent of a universal injunction, 0:09:16.040 --> 0:09:18.880 and so a federal judge in New York cited the 0:09:18.920 --> 0:09:22.800 APA when he set aside the administration's decisions to end 0:09:22.920 --> 0:09:26.920 legal protections for Haitian migrants. A Washington judge did the 0:09:26.960 --> 0:09:31.160 same in the case reviving asylum. Would these cases normally 0:09:31.240 --> 0:09:35.160 have been brought under the APA or is this happening 0:09:35.280 --> 0:09:37.960 because of the Supreme Court's cost A decision. 0:09:38.559 --> 0:09:42.240 There's an important difference in what we can say about 0:09:42.360 --> 0:09:46.480 whether these are being brought under the APA, whether the 0:09:46.640 --> 0:09:50.400 relief comes from and is authorized by the APA. So 0:09:51.080 --> 0:09:53.720 it may be that, you know, these are being brought 0:09:53.800 --> 0:09:58.160 under immigration statutes, or they're being brought, you know, in 0:09:58.200 --> 0:10:02.840 the birthright citizenship under a of constitutional law, the fourteenth Amendment. 0:10:03.240 --> 0:10:06.600 But these all are revolving around the questions of what 0:10:06.920 --> 0:10:10.360 the relief is that can be provided. And you're right, 0:10:10.480 --> 0:10:14.160 you're exactly right to say that. You know, these judges 0:10:14.240 --> 0:10:17.040 now are saying, well, there's relief that can be granted, 0:10:17.120 --> 0:10:22.439 not through a preliminary injunction, which is grounded in the 0:10:22.559 --> 0:10:26.280 law of equity. That goes back to even the founding 0:10:26.360 --> 0:10:30.560 of our country and to some of the early statutes 0:10:30.600 --> 0:10:34.880 giving courts authority, like the Judiciary Act of seventeen eighty nine. 0:10:35.720 --> 0:10:39.600 That's what the Costa Court said, Well, no, that doesn't 0:10:39.640 --> 0:10:42.920 give you the ability. Now they're saying, well, we have 0:10:42.960 --> 0:10:46.480 another pathway, and I think you're right to say that 0:10:46.760 --> 0:10:50.440 this is maybe a workaround. One might look at it 0:10:50.480 --> 0:10:54.320 that way, but it's also just another alternative pathway, the 0:10:54.400 --> 0:10:57.960 same way that you know, we all know that if 0:10:58.000 --> 0:11:02.880 someone take a completly different context, if somebody is accused 0:11:02.880 --> 0:11:06.839 of a crime and is found to be, you know, 0:11:06.920 --> 0:11:10.160 not guilty, it just means that the prosecutors haven't met 0:11:10.240 --> 0:11:13.320 the burden of proof beyond a reasonable doubt that the 0:11:13.320 --> 0:11:18.000 person's guilty. It doesn't name that you can't then proceed 0:11:18.880 --> 0:11:22.679 with civil actions against that person. In law, we often 0:11:22.840 --> 0:11:27.000 have these multiple pathways, and as long as you have 0:11:27.480 --> 0:11:30.920 one that's met, well, you know, maybe you don't need 0:11:30.960 --> 0:11:35.760 to use the others. So, yes, the federal courts haven't 0:11:35.800 --> 0:11:40.319 always invoked the Administrative Procedure Act, perhaps in the same 0:11:41.400 --> 0:11:45.120 way that these judges are now right after Costa. But 0:11:45.240 --> 0:11:48.240 you know, they and the litigants who are making arguments 0:11:48.240 --> 0:11:51.320 before them are just doing what lawyers and judges do 0:11:51.400 --> 0:11:54.320 all the time. If you know one pathway or one 0:11:54.559 --> 0:11:59.920 possible means of getting some relief is not permissible, well 0:12:00.160 --> 0:12:01.920 then go with what is permissible. 0:12:02.200 --> 0:12:05.520 Coming up the drawbacks to using the APA, this is 0:12:05.520 --> 0:12:09.560 bloomberg in a lot of a Supreme Court's decision at 0:12:09.600 --> 0:12:13.080 the end of June limiting the ability of federal judges 0:12:13.120 --> 0:12:17.200 to issue nationwide injunctions. Some judges have been blocking the 0:12:17.240 --> 0:12:21.600 Trump agenda by using the alternative pass suggested by the justices. 0:12:21.880 --> 0:12:24.880 I've been talking to Professor Carrie Coliniesi of the University 0:12:24.920 --> 0:12:28.880 of Pennsylvania Carrie Law School. Are there drawbacks to using 0:12:28.920 --> 0:12:33.559 the Administrative Procedure Act Because it has to be used 0:12:33.679 --> 0:12:36.800 to vacate an agency's action, so it can't be used 0:12:36.840 --> 0:12:38.640 to attack an executive order. 0:12:38.840 --> 0:12:42.600 It's a weaker tool. Since a Supreme Court decision in 0:12:42.679 --> 0:12:47.080 nineteen ninety two Franklin versus Massachusetts, it's generally thought that 0:12:47.559 --> 0:12:52.280 the Administrative Procedure Act doesn't really apply to the president. 0:12:52.760 --> 0:12:56.040 You know that we can probably debate how Franklin Vief 0:12:56.200 --> 0:13:00.000 Massachusetts is, But yeah, I think that you would ordinately 0:13:00.400 --> 0:13:05.640 not see these apa set asides against anything other than agencies. 0:13:05.960 --> 0:13:12.479 But you know, executive orders themselves rarely are self implementing, 0:13:13.320 --> 0:13:17.640 so all that executive orders, almost all executive orders are 0:13:17.760 --> 0:13:22.720 just that they're ordering administrative agencies at the federal level 0:13:22.760 --> 0:13:27.079 to do something, and when they do it, they're subject 0:13:27.160 --> 0:13:30.040 to the Administrative Procedure Act. So you know, I think 0:13:30.080 --> 0:13:34.400 it's still quite a feasible pathway to address something that's 0:13:34.440 --> 0:13:37.320 objectionable about an executive order, just you have to wait 0:13:37.400 --> 0:13:41.400 until some agency actually follows that executive order for it 0:13:41.440 --> 0:13:41.880 to apply. 0:13:42.320 --> 0:13:46.480 Some government lawyers in cases are asking judges to pair 0:13:46.559 --> 0:13:50.840 back their injunctions because of the Supreme Court's ruling. Is 0:13:50.840 --> 0:13:52.040 that likely to happen? 0:13:52.760 --> 0:13:57.640 Well, I mean, I think it's probably likely that we'll 0:13:57.679 --> 0:14:02.240 have to have a reassessment of some of these nationwide injunctions, 0:14:02.880 --> 0:14:08.280 but that reassessment is in many cases likely still to 0:14:09.240 --> 0:14:14.600 result in what is effectively some nationwide relief when any 0:14:14.640 --> 0:14:19.720 of the three available still available pathways exist. One is 0:14:20.200 --> 0:14:25.680 an equitable nationwide injunction, when complete relief it can only 0:14:25.720 --> 0:14:29.600 be provided that way. Two is through a class action, 0:14:29.800 --> 0:14:33.520 and three is through the administrative Procedure Act, and it's 0:14:34.000 --> 0:14:37.640 set aside provisions in section seven six. 0:14:38.200 --> 0:14:41.000 Considering all this that, as far as we've seen, a 0:14:41.040 --> 0:14:46.760 lot of plaintiffs are succeeding with these alternative paths. How 0:14:46.840 --> 0:14:49.280 much do you think the Supreme Court ruling is really 0:14:49.320 --> 0:14:52.520 going to help the Trump administration? How big a win 0:14:52.640 --> 0:14:54.000 was this for the Trump administration? 0:14:54.840 --> 0:14:56.960 Well, it's certainly not as big a win as they've 0:14:57.000 --> 0:15:01.760 laid out, you know, and claimed for themselves. That's hardly 0:15:01.880 --> 0:15:05.600 the first time, right, they are quite frankly other politicians 0:15:05.680 --> 0:15:09.360 right exaggerate what they have obtained. You know, I think 0:15:09.400 --> 0:15:14.680 in the birthright citizenship case it's probably not likely to 0:15:14.720 --> 0:15:17.520 be much of a win at all. And then the 0:15:17.640 --> 0:15:21.720 question is, will it, maybe at the margin, make it 0:15:21.800 --> 0:15:26.479 more difficult to obtain what is some kind of nationwide 0:15:26.600 --> 0:15:33.160 relief in other cases? And probably that's true because complete 0:15:33.200 --> 0:15:38.600 relief might not always be evident. It might be harder 0:15:38.640 --> 0:15:43.400 to meet the class certification standards, especially if the Supreme 0:15:43.440 --> 0:15:48.680 Court wants to scrutinize those even more rigorously. And this 0:15:48.840 --> 0:15:51.960 set aside will only apply and you know in some 0:15:52.280 --> 0:15:55.440 proportion of the cases where there might want to be 0:15:55.480 --> 0:15:59.440 some nationwide relief and the Cost Court. By the way, 0:15:59.600 --> 0:16:03.400 also with respect to the set aside under the Administrative 0:16:03.440 --> 0:16:06.840 Procedure Act, it says we're not deciding anything on that, 0:16:07.000 --> 0:16:13.680 so expect more litigation about really the extent to which 0:16:13.920 --> 0:16:19.240 courts can must rely on the set aside provision in 0:16:19.560 --> 0:16:24.040 five USC. Section seven oh six of the Administrative Procedure Act. 0:16:24.120 --> 0:16:26.160 Yeah, that was my next question. How fast do you 0:16:26.200 --> 0:16:29.200 think this is going to return to the Supreme Court? 0:16:29.440 --> 0:16:33.840 Well, Justice Kavanaugh seemed to think in his separate opinion 0:16:33.840 --> 0:16:36.840 in the cost Of case that you know, the Supreme 0:16:36.880 --> 0:16:41.720 Court is going to be at the ready to resolve 0:16:41.960 --> 0:16:46.720 a lot of these preliminary relief questions, and that we're 0:16:46.720 --> 0:16:49.480 going to start to see, you know, even more of 0:16:50.040 --> 0:16:53.920 what we've already been seeing, which is cases going right 0:16:53.960 --> 0:16:56.320 on up to the Supreme Court in a way that 0:16:56.760 --> 0:17:01.720 I think certainly ten years ago, years ago, the Supreme 0:17:01.720 --> 0:17:05.160 Court wouldn't have been weighing in as readily and frequently. 0:17:05.280 --> 0:17:09.440 But yes, definitely expect more Supreme Court action. In some ways, 0:17:09.520 --> 0:17:14.280 that's an important upshot of the Kasa decision is that 0:17:14.520 --> 0:17:17.800 the Supreme Court is still calling a lot of shots 0:17:18.280 --> 0:17:22.840 with respect to how and when the executive branch can 0:17:22.880 --> 0:17:27.080 be held to account for and be constrained by the 0:17:27.160 --> 0:17:27.720 rule of law. 0:17:28.320 --> 0:17:31.679 And why do you think so many people are paying attention, 0:17:32.480 --> 0:17:37.720 even some judges to Justice Alito's concurrence in Kasa, where 0:17:37.760 --> 0:17:41.919 he warns about the court strictly adhering to the requirements 0:17:41.960 --> 0:17:44.080 for class certification, etc. 0:17:44.960 --> 0:17:49.119 Well, this is a Supreme Court that is remaking a 0:17:49.200 --> 0:17:52.240 good bit of what was for a long time fairly 0:17:52.320 --> 0:17:57.600 settled law, especially with respect to the relationship between the 0:17:57.600 --> 0:18:01.600 courts and the executive branch. And on the one hand, 0:18:01.680 --> 0:18:05.399 this court is skeptical of administrative power, but on the 0:18:05.400 --> 0:18:10.160 other hand it seems also to be supportive of presidential 0:18:10.240 --> 0:18:14.680 power to a larger extent than prior courts. And what's 0:18:14.760 --> 0:18:17.480 really an issue? And in some ways with the Alito 0:18:17.720 --> 0:18:22.119 separate opinion, which by the way, only attracted one other justice, 0:18:22.280 --> 0:18:25.920 so maybe that should itself indicate that it's not really 0:18:25.920 --> 0:18:28.040 going to be meaningful. But I think what he raises 0:18:28.160 --> 0:18:31.200 is this really at this heart of this matter is 0:18:31.520 --> 0:18:36.240 how much should the courts be weighing in and providing 0:18:36.280 --> 0:18:43.199 relief when the executive branch is undertaking action that at 0:18:43.280 --> 0:18:47.440 least the litigants think is unlawful. And you know, if 0:18:47.480 --> 0:18:51.119 you think that there's a need for strong presidential power, 0:18:51.640 --> 0:18:56.359 then you might want to have lower courts be more 0:18:56.520 --> 0:19:00.800 limited in when they can issue nationwide injunctions, letting a 0:19:00.880 --> 0:19:05.720 president's administration go forward with action even if it's being 0:19:05.840 --> 0:19:09.720 challenged in court, giving a little bit more leeway to 0:19:09.800 --> 0:19:12.080 the president. On the other hand, if you're skeptical of 0:19:12.119 --> 0:19:15.920 administrative agencies in their power, you might want to see 0:19:16.080 --> 0:19:21.240 the ability for more judicial scrutiny of administrative action. And 0:19:21.760 --> 0:19:24.600 I think goes the opposite of what Alito and Thomas 0:19:24.680 --> 0:19:28.960 were urging, And maybe we should have more liberal use 0:19:29.040 --> 0:19:32.400 of the set aside provision under the APA or under 0:19:32.400 --> 0:19:36.119 class actions. So I mean, I think, really this is 0:19:36.160 --> 0:19:41.240 a fascinating, fascinating case because it's really a pivot point 0:19:41.480 --> 0:19:46.919 in this tension between presidential power and the administrative state. 0:19:47.400 --> 0:19:50.359 And then where do the courts find themselves situate? As 0:19:50.440 --> 0:19:53.920 here in kind of policing the boundaries of the rule 0:19:53.960 --> 0:19:57.359 of law, we're in a realm in which the lower 0:19:57.400 --> 0:20:01.960 courts are faithful agents. I think of a body of 0:20:02.080 --> 0:20:06.080 law that has existed for a long time, and they're 0:20:06.119 --> 0:20:09.879 in a sense in case after case it seems, getting 0:20:09.880 --> 0:20:14.120 the rug pulled out from under them. And so they're 0:20:14.480 --> 0:20:20.320 dutifully when faced with alternative arguments and alternative bases for 0:20:20.560 --> 0:20:24.199 providing relief, calling it like they see it, and that 0:20:24.359 --> 0:20:27.080 is the rule of law. That is what lower court 0:20:27.280 --> 0:20:31.760 judges should be doing. At times, seems like the Supreme 0:20:31.760 --> 0:20:36.960 Court doesn't really have those lower court justices back, if 0:20:37.040 --> 0:20:42.160 you will, And it's a very interesting time to have 0:20:42.200 --> 0:20:45.920 a Supreme Court that, you know, whether it's on presidential 0:20:46.119 --> 0:20:50.480 immunity or other questions here, you know, really kind of 0:20:50.680 --> 0:20:55.720 undermining what the lower courts as dutiful agents of enforcers 0:20:55.720 --> 0:20:57.119 of the law, as they should. 0:20:57.280 --> 0:21:00.639 There are only two justices who have trial court experience. 0:21:01.680 --> 0:21:06.040 Justice is Sonya Sotomayor and Katanji Brown Jackson. And I 0:21:06.080 --> 0:21:10.000 wonder if that plays into the justice's attitudes towards the 0:21:10.080 --> 0:21:11.120 trial court judges. 0:21:11.960 --> 0:21:17.320 Sometimes there's accusations of ideological differences, but I think there's 0:21:17.359 --> 0:21:21.000 another difference here. It's just the Supreme Court is overseeing 0:21:21.000 --> 0:21:25.359 an entire judicial system, and it seems that as of late, 0:21:25.640 --> 0:21:29.480 you know, at least impressionistically, in a lot of important cases, 0:21:29.880 --> 0:21:33.560 the lower courts are calling it like what all the experts, 0:21:33.600 --> 0:21:37.600 even my law students would have said, you know, this 0:21:37.720 --> 0:21:39.760 is the right answer. I mean, just you know, black 0:21:39.840 --> 0:21:43.080 letter law, and yet we're changing things. 0:21:43.119 --> 0:21:46.400 So yeah, it seems like the value of precedent has 0:21:46.720 --> 0:21:50.399 diminished a great deal. Thanks so much Carrie for joining me. 0:21:50.840 --> 0:21:55.080 That's Professor Carry Colinisi of the University of Pennsylvania Carrie 0:21:55.160 --> 0:22:00.880 Law School. This term, the Trump administration is bagging behind 0:22:00.920 --> 0:22:06.440 the Biden administration and the first Trump administration in judicial appointments. 0:22:06.880 --> 0:22:09.760 Joining me is Professor Carl Tobias of the University of 0:22:09.880 --> 0:22:14.320 Richmond Law School. So Carl Whitney Hermanndorffer is going to 0:22:14.359 --> 0:22:18.879 be the first judge confirmed for the Trump administration this 0:22:19.040 --> 0:22:22.960 time around. How does this compare, you know, one judge 0:22:22.960 --> 0:22:27.840 at this point in July, mid July, compared to how 0:22:27.880 --> 0:22:32.440 many judges Biden had confirmed by this point and how 0:22:32.440 --> 0:22:34.960 many judges Trump had confirmed by this point in his 0:22:35.040 --> 0:22:35.640 first term. 0:22:36.119 --> 0:22:38.359 I don't have the right infirm me, but I think 0:22:38.400 --> 0:22:42.720 Biden was somewhere between five and ten, and a couple 0:22:42.800 --> 0:22:47.480 of them were appellate judges, and then Trump, I think 0:22:47.880 --> 0:22:53.600 might have been a little slower than Biden, and he 0:22:53.720 --> 0:22:58.440 had three or four or so maybe five, but all 0:22:58.480 --> 0:23:02.360 of them, you know, started fairly slowly, but I think 0:23:02.400 --> 0:23:05.680 it is much slower than he did in the first term. 0:23:05.720 --> 0:23:08.680 But he has been busy doing lots of other things. 0:23:08.840 --> 0:23:12.560 Well. Is it also that not as many judges are 0:23:12.600 --> 0:23:14.399 taking retirement. 0:23:15.119 --> 0:23:19.560 Yes, of course, because remember a Republican majority in the 0:23:19.640 --> 0:23:26.080 last two years of Obama's presidency did not confirm very 0:23:26.080 --> 0:23:29.119 many people at all, in fact, the fewest since Harry 0:23:29.200 --> 0:23:34.480 Truman was president, and so that meant that more than 0:23:34.480 --> 0:23:40.199 a hundred vacancies appellot and district were available for Trump 0:23:41.200 --> 0:23:45.800 to fill, and so of course he was bound to 0:23:45.840 --> 0:23:48.440 determined to fill all of those, and did fill all 0:23:48.480 --> 0:23:52.600 of the appellate ones, which hadn't happened since nineteen eighty 0:23:52.640 --> 0:23:56.960 four during Reagan's administration. So he was focused like a 0:23:57.040 --> 0:24:00.760 laser on the appeals courts and had many to fill. 0:24:01.240 --> 0:24:08.000 Bloomberg Law reported recently that even Republican judges are hesitant 0:24:08.080 --> 0:24:12.800 right now to retire because of the fact that Trump 0:24:13.400 --> 0:24:17.320 in the second term is looking for Trump loyalists rather 0:24:17.400 --> 0:24:19.200 than just conservatives. 0:24:19.840 --> 0:24:23.840 Yes, as your reporter said, and a number of people 0:24:23.880 --> 0:24:29.080 have pointed out, there have been hardly any judges appointed 0:24:29.080 --> 0:24:35.280 by Democrats or Republicans this year who have chosen to 0:24:35.280 --> 0:24:39.000 take senior status. And I think it's especially compelling at 0:24:39.000 --> 0:24:43.320 the appellate level. I don't believe any appellate judge has 0:24:43.440 --> 0:24:47.960 said that the person has the intention to assume senior status. 0:24:48.200 --> 0:24:51.240 And part of that I think is seeing some of 0:24:51.359 --> 0:24:55.920 Trump's two point zero nominees, at least that's what the 0:24:56.080 --> 0:24:57.280 legal press is saying. 0:24:58.000 --> 0:25:01.720 So speaking of one of his nomine that was controversial 0:25:02.240 --> 0:25:06.800 to start out with, that's Emil Beauvet, and he wouldn't 0:25:06.840 --> 0:25:11.239 answer directly if Trump could serve a third term in 0:25:11.320 --> 0:25:16.399 office under the constitution. A lot of the nominees won't 0:25:16.480 --> 0:25:20.400 say whether Biden really won the election or not. They'll 0:25:20.400 --> 0:25:23.400 say things like, well, he was president, he was sworn in. 0:25:23.760 --> 0:25:27.560 I mean, this takes partisanship to a new level, doesn't it. 0:25:28.680 --> 0:25:31.680 Well, I think it does, which is unfortunate. Of course, 0:25:32.440 --> 0:25:36.440 that's very true, especially of the Department of Justice nominees 0:25:36.600 --> 0:25:40.639 who's been confirmed, especially at the upper echelon level. But 0:25:41.240 --> 0:25:48.119 Bode also declined to say whether he had said something 0:25:48.280 --> 0:25:56.159 very degrading about the district judges and whether court orders 0:25:56.160 --> 0:26:01.280 would be followed by this administration, and he just refused 0:26:01.280 --> 0:26:05.679 to weigh in on whether he had said that and 0:26:05.880 --> 0:26:10.680 used a very bad word to describe that. So it's 0:26:10.720 --> 0:26:16.200 just unclear. But he had very few straightforward answers in 0:26:16.240 --> 0:26:22.520 the hearing, especially from Democrats questioning him and the kind 0:26:22.520 --> 0:26:26.360 of questions that you're asking about January sixth and others, 0:26:26.400 --> 0:26:31.040 and just left I think a number of people wondering 0:26:31.280 --> 0:26:34.159 what exactly he would do, whether he had proper temperament 0:26:34.320 --> 0:26:38.000 for someone to sit on the US Court of Appeals 0:26:38.000 --> 0:26:40.800 for the Third Circuit if his vote. 0:26:40.640 --> 0:26:44.400 Goes down party lines. I mean, is there anyone that 0:26:44.760 --> 0:26:48.000 the Republicans won't push through then? Because there's also, you know, 0:26:48.000 --> 0:26:51.840 as you mentioned, whistleblower allegations, and there have been confirming 0:26:52.000 --> 0:26:56.120 documents about them. So either you believe the whistle blower 0:26:56.240 --> 0:26:58.680 or you believe him you denied the whole thing. 0:26:59.240 --> 0:27:03.399 Well, that's a good question. I think some people thought 0:27:03.840 --> 0:27:08.240