1 00:00:01,160 --> 00:00:03,960 Speaker 1: It is a major day at the Supreme Court, and 2 00:00:04,040 --> 00:00:06,720 Speaker 1: I am live literally at the Supreme Court, staring at 3 00:00:06,800 --> 00:00:09,680 Speaker 1: it as we speak, as the court is hearing major 4 00:00:09,920 --> 00:00:13,440 Speaker 1: arguments on multiple different cases. Now in a moment, we're 5 00:00:13,480 --> 00:00:16,200 Speaker 1: going to be joined by the Attorney General of West Virginia, 6 00:00:16,320 --> 00:00:19,280 Speaker 1: who is talking about these district courts that have gone rogue, 7 00:00:19,400 --> 00:00:23,599 Speaker 1: putting nationwide injunction on Donald Trump many are describing in 8 00:00:23,640 --> 00:00:26,720 Speaker 1: his lawfare. But before we get to that, the Supreme 9 00:00:26,760 --> 00:00:30,240 Speaker 1: Court also heard arguments in the case over Donald Trump's 10 00:00:30,320 --> 00:00:32,360 Speaker 1: birthright citizenship order. 11 00:00:32,960 --> 00:00:34,280 Speaker 2: The Supreme Court. 12 00:00:34,080 --> 00:00:37,479 Speaker 1: Hearing the first set of Trump related arguments in the 13 00:00:37,520 --> 00:00:41,480 Speaker 1: second Trump presidency. Now, this case stem from the executive 14 00:00:41,640 --> 00:00:43,920 Speaker 1: order that President Trump issued on his first day in 15 00:00:44,000 --> 00:00:48,720 Speaker 1: office that we deny citizenship to children born on US 16 00:00:48,760 --> 00:00:53,120 Speaker 1: soil to parents who are in the country illegally or temporarily. 17 00:00:53,560 --> 00:00:56,760 Speaker 1: The executive order marks a major change to the provisions 18 00:00:56,800 --> 00:00:59,920 Speaker 1: of the Fourteenth Amendment that grant citizenship to people born 19 00:00:59,880 --> 00:01:02,720 Speaker 1: in the United States of America with just a couple 20 00:01:02,800 --> 00:01:08,160 Speaker 1: of exceptions. Immigrants rights groups and many liberal states sued 21 00:01:08,200 --> 00:01:12,480 Speaker 1: almost immediately to challenge the executive order of President Trump. 22 00:01:12,880 --> 00:01:17,120 Speaker 1: Federal judges have uniformally cast doubt on Trump's reading of 23 00:01:17,160 --> 00:01:20,200 Speaker 1: the citizenship cause, and three judges have blocked the order 24 00:01:20,200 --> 00:01:24,120 Speaker 1: from taking effect anywhere in the US, including US District 25 00:01:24,240 --> 00:01:25,960 Speaker 1: Judge John Kojinnar. 26 00:01:27,040 --> 00:01:27,640 Speaker 2: I've been on the. 27 00:01:27,600 --> 00:01:31,720 Speaker 1: Bench for over four decades, he said, I can't remember 28 00:01:31,760 --> 00:01:34,360 Speaker 1: another case where the question presented was as clear as 29 00:01:34,400 --> 00:01:38,440 Speaker 1: this one. This is a blatantly unconstitutional order, the judge 30 00:01:38,480 --> 00:01:41,720 Speaker 1: said at a hearing in his Seattle court room. Now, 31 00:01:41,760 --> 00:01:46,720 Speaker 1: the Supreme Court is taking up an emergency appeals filed 32 00:01:46,800 --> 00:01:50,520 Speaker 1: by the Trump administration, asking to be able to enforce 33 00:01:50,560 --> 00:01:54,200 Speaker 1: the executive order in most of the country at least 34 00:01:54,240 --> 00:02:00,080 Speaker 1: while the lawsuits over the order proceed Now, the constitutionality. 35 00:01:59,160 --> 00:02:02,080 Speaker 2: Of the order is not before the court just yet. 36 00:02:02,360 --> 00:02:06,080 Speaker 1: Instead, the justices are looking at potentially limiting the authority 37 00:02:06,080 --> 00:02:10,640 Speaker 1: of individual judges to issuing rulings that apply throughout the 38 00:02:10,800 --> 00:02:15,400 Speaker 1: entire country. These are known as nationwide or universal injunctions, 39 00:02:15,400 --> 00:02:19,800 Speaker 1: which I mentioned earlier. Now, Trump's Solicitor General wrapped up 40 00:02:19,800 --> 00:02:24,160 Speaker 1: his opening and his challenger stepped up. That's when Justice 41 00:02:24,560 --> 00:02:28,200 Speaker 1: Kavanaugh pressed with a series of questions about exactly how 42 00:02:28,240 --> 00:02:32,120 Speaker 1: the federal government might enforce Trump's order. Quote what do 43 00:02:32,240 --> 00:02:35,400 Speaker 1: hospitals do with a newborn? What the states do with 44 00:02:35,440 --> 00:02:36,000 Speaker 1: a newborn? 45 00:02:36,080 --> 00:02:36,520 Speaker 2: He said. 46 00:02:36,840 --> 00:02:40,120 Speaker 1: This solicitener General said they wouldn't necessarily do anything different, 47 00:02:40,480 --> 00:02:44,880 Speaker 1: but the government might figure out ways to reject documentation 48 00:02:45,120 --> 00:02:50,680 Speaker 1: with quote the wrong designation of citizenship. Kavanaugh continued to 49 00:02:50,680 --> 00:02:53,839 Speaker 1: press for clear answers, pointing out that the executive order 50 00:02:54,040 --> 00:02:59,280 Speaker 1: only gave the government about thirty days to develop a policy, saying, quote, 51 00:02:59,320 --> 00:03:01,560 Speaker 1: you think they can get it together in time. 52 00:03:02,560 --> 00:03:04,240 Speaker 2: Justice brown Jackson. 53 00:03:04,000 --> 00:03:09,160 Speaker 1: Appeared deeply skeptical of the Solicitor General's arguments as well, saying, quote, 54 00:03:09,639 --> 00:03:13,200 Speaker 1: your argument seems to turn our justice system, in my view, 55 00:03:13,200 --> 00:03:15,919 Speaker 1: at least into a catch me if you can, kind 56 00:03:15,919 --> 00:03:19,680 Speaker 1: of regime where everybody has to have a lawyer. Now, 57 00:03:19,720 --> 00:03:22,320 Speaker 1: the new Jersey Solicitor General stepped up to make his 58 00:03:22,440 --> 00:03:26,200 Speaker 1: case after the justices. Pepper the Solicitor General with questions. 59 00:03:26,680 --> 00:03:29,239 Speaker 1: He is arguing on behalf of the states that say 60 00:03:29,320 --> 00:03:32,440 Speaker 1: they'll lose millions of dollars in benefits available to US 61 00:03:32,639 --> 00:03:37,760 Speaker 1: children and also have to overhaul identification systems. He also 62 00:03:37,840 --> 00:03:41,600 Speaker 1: asserted in his opening that the post Civil War nation 63 00:03:42,280 --> 00:03:45,640 Speaker 1: wrote into our Constitution that cyszens the United States and 64 00:03:46,160 --> 00:03:50,280 Speaker 1: of these states would be one and the same without 65 00:03:50,400 --> 00:03:54,720 Speaker 1: variations across state lines. The new Jersey Attorney General told 66 00:03:54,720 --> 00:03:58,080 Speaker 1: the justices that judges should be able to issue orders 67 00:03:58,120 --> 00:04:02,560 Speaker 1: that affect the whole country, but only in narrow circumstances. 68 00:04:03,080 --> 00:04:06,760 Speaker 1: Roberts jumped on that last point, asking him to elaborate 69 00:04:06,800 --> 00:04:10,760 Speaker 1: on why they should only be used sparingly, a question 70 00:04:10,840 --> 00:04:12,880 Speaker 1: that could be a clue as to how the Chief 71 00:04:13,040 --> 00:04:17,440 Speaker 1: Justice Roberts is thinking about the issue now. Justice tried 72 00:04:17,520 --> 00:04:20,960 Speaker 1: to pin down the solicitor General's argument. Justice Kagan, by 73 00:04:20,960 --> 00:04:22,640 Speaker 1: the way, cut to the heart of the case by 74 00:04:22,760 --> 00:04:27,719 Speaker 1: asking the Solicitor General that if the Court concludes Trump's 75 00:04:27,800 --> 00:04:31,200 Speaker 1: order is illegal, how the nation's highest court could strike 76 00:04:31,240 --> 00:04:35,360 Speaker 1: down the measure under the administration's theory of court's limited power, 77 00:04:35,920 --> 00:04:39,640 Speaker 1: Saying this, does every single person who is affected by 78 00:04:40,200 --> 00:04:44,000 Speaker 1: this executive order have to bring their own suit Atlanta? 79 00:04:44,040 --> 00:04:47,880 Speaker 1: Kagan asked how long does it take? And the Solicitor 80 00:04:47,880 --> 00:04:51,599 Speaker 1: General tried to answer. Several of Kagan's colleagues, along with 81 00:04:51,680 --> 00:04:54,480 Speaker 1: the Justice, jumped in to say they didn't hear a 82 00:04:54,520 --> 00:04:57,719 Speaker 1: clear way the court could swiftly ensure the government could 83 00:04:57,760 --> 00:05:02,840 Speaker 1: not take unconstitutional action Roberts tried to help by jumping 84 00:05:02,880 --> 00:05:05,520 Speaker 1: in to note the High Court has moved fast in 85 00:05:05,600 --> 00:05:09,760 Speaker 1: the past, concluding the TikTok case in just one month. 86 00:05:10,160 --> 00:05:13,200 Speaker 1: The Solicitener General, are you going to answer Kagan by 87 00:05:13,279 --> 00:05:16,839 Speaker 1: saying there is no way to do this expeditiously? That 88 00:05:17,000 --> 00:05:21,000 Speaker 1: is what Cony Barrett asked, and Barrett continued by saying 89 00:05:21,040 --> 00:05:25,480 Speaker 1: this whether a class action lawsuit could be another way 90 00:05:25,520 --> 00:05:27,920 Speaker 1: for judges to issue a court order that could affect 91 00:05:28,000 --> 00:05:31,400 Speaker 1: more people. He said the administration would likely push back 92 00:05:31,440 --> 00:05:35,000 Speaker 1: on efforts of people to bind together for a class 93 00:05:35,040 --> 00:05:38,240 Speaker 1: action lawsuit, but that it would be another way for 94 00:05:38,400 --> 00:05:43,479 Speaker 1: cases to move forward. Justice Alito pointed out that multiple 95 00:05:43,520 --> 00:05:47,800 Speaker 1: states have also sued over the birthright citizenship order and 96 00:05:47,880 --> 00:05:52,760 Speaker 1: one broader victories. The Trump administration is also arguing that 97 00:05:52,880 --> 00:05:55,599 Speaker 1: states shouldn't have to be able to do that, but 98 00:05:55,680 --> 00:05:59,160 Speaker 1: the Solicitor General sticks to his point about the nationwide injunction, 99 00:05:59,400 --> 00:06:04,559 Speaker 1: saying they yield quote all these sorts of pathologies. Soto 100 00:06:04,600 --> 00:06:07,719 Speaker 1: my Oar returned how Trump's order could affect people's saying 101 00:06:07,760 --> 00:06:13,120 Speaker 1: it for some babies, it could render them stateless. Justices 102 00:06:13,320 --> 00:06:17,680 Speaker 1: Pepper Trump's Solicitor General with questions and oral arguments, arguing 103 00:06:17,920 --> 00:06:21,159 Speaker 1: first that the Solicitor General and the government's top attorney 104 00:06:21,279 --> 00:06:24,480 Speaker 1: before the Supreme Court saying, if you have a child 105 00:06:24,520 --> 00:06:27,920 Speaker 1: that is literally without a state to call their own, 106 00:06:28,320 --> 00:06:31,440 Speaker 1: what does that make them? Now, this is obviously a 107 00:06:31,600 --> 00:06:36,000 Speaker 1: very complicated issue. It's also an important one, and it's 108 00:06:36,040 --> 00:06:39,839 Speaker 1: one that deals with nationwide injunctions because they have become 109 00:06:40,120 --> 00:06:44,400 Speaker 1: especially frustrating for the Trump administration as opponents of the 110 00:06:44,440 --> 00:06:49,120 Speaker 1: president's policies have filed hundreds of lawsuits challenging his flurry 111 00:06:49,160 --> 00:06:50,280 Speaker 1: of executive orders. 112 00:06:50,720 --> 00:06:51,680 Speaker 2: Why are they doing this? 113 00:06:52,080 --> 00:06:55,160 Speaker 1: They're making it very clear, it's law fare, and they 114 00:06:55,200 --> 00:06:59,359 Speaker 1: want these judges in friendly districts and friendly courts in 115 00:06:59,440 --> 00:07:03,280 Speaker 1: liberal parts of America to do the nationwide injunctions to 116 00:07:03,279 --> 00:07:06,719 Speaker 1: stop everything that the president's doing. The argument that the 117 00:07:06,760 --> 00:07:09,359 Speaker 1: president's making, and many of those that were in the 118 00:07:09,400 --> 00:07:12,200 Speaker 1: courtroom on his behalf, is that he has the right 119 00:07:12,560 --> 00:07:14,560 Speaker 1: to be the president of the United States of America 120 00:07:14,920 --> 00:07:17,880 Speaker 1: and the right to executive orders, and every single one 121 00:07:17,880 --> 00:07:21,960 Speaker 1: of them should not be challenged and overturned by a 122 00:07:22,160 --> 00:07:25,960 Speaker 1: judge that is in a district. Now, President Trump pressed 123 00:07:26,040 --> 00:07:29,760 Speaker 1: for restrictions ahead of these arguments at the Supreme Court. 124 00:07:30,200 --> 00:07:33,880 Speaker 1: President Trump is weighing in and he said this granting 125 00:07:33,920 --> 00:07:38,640 Speaker 1: citizenship to people born here, long seen as a constitutional promise, 126 00:07:38,720 --> 00:07:42,320 Speaker 1: makes the country look stupid and like suckers. Now President 127 00:07:42,360 --> 00:07:45,680 Speaker 1: Trump's executive order at the heart of today's case really 128 00:07:45,720 --> 00:07:49,680 Speaker 1: aims at ending what he has described as a loophole 129 00:07:49,880 --> 00:07:53,000 Speaker 1: in birthright citizenship for children born to people in the 130 00:07:53,080 --> 00:07:57,360 Speaker 1: US illegally, something that many legal scholars are fighting back 131 00:07:57,400 --> 00:08:01,840 Speaker 1: saying would require amending the Constitution. This is going to 132 00:08:01,840 --> 00:08:05,600 Speaker 1: be a very important case moving forward. Now, if I'm 133 00:08:05,640 --> 00:08:07,880 Speaker 1: reading the tea leaves here from the Supreme Court, I 134 00:08:07,960 --> 00:08:10,320 Speaker 1: can tell you this. I think this is going to 135 00:08:10,360 --> 00:08:13,960 Speaker 1: be an uphill battle for the present. This conversation that's 136 00:08:14,000 --> 00:08:17,880 Speaker 1: extremely important, and that deals with the issue of these 137 00:08:17,920 --> 00:08:22,920 Speaker 1: activist judges cherry pickings certain things and going to liberal 138 00:08:22,960 --> 00:08:27,160 Speaker 1: courts making sure that nationwide injunctions come in on countless 139 00:08:27,200 --> 00:08:31,280 Speaker 1: executive orders. That brings me to my next guest, who 140 00:08:31,400 --> 00:08:33,560 Speaker 1: is the Attorney General of West Virginia, JB. 141 00:08:33,720 --> 00:08:34,240 Speaker 2: Mccusky. 142 00:08:34,480 --> 00:08:37,040 Speaker 1: He was in the Supreme Court and filed an amaricus 143 00:08:37,120 --> 00:08:42,080 Speaker 1: a brief along with the ACLJ about how important it 144 00:08:42,160 --> 00:08:45,960 Speaker 1: is that these nationwide injunctions from halfway across the country 145 00:08:46,120 --> 00:08:49,760 Speaker 1: by these district judges do not actually take away the 146 00:08:49,840 --> 00:08:51,320 Speaker 1: rights of the American people. 147 00:08:51,840 --> 00:08:53,880 Speaker 2: Let me tell you about Patriot Mobile real quick. 148 00:08:53,920 --> 00:08:56,600 Speaker 1: If you've got a cell phone and your cell phone 149 00:08:57,200 --> 00:08:59,640 Speaker 1: is not with Patriot Mobile, then the question I gotta 150 00:08:59,679 --> 00:09:03,840 Speaker 1: ask you is why why have you not made the switch? 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So right now, go to Patriotmobile dot com 176 00:10:29,920 --> 00:10:34,080 Speaker 1: slash ferguson or call them ninety seven to two Patriot. 177 00:10:34,480 --> 00:10:36,440 Speaker 1: You're going to get a free month of service with 178 00:10:36,440 --> 00:10:39,360 Speaker 1: the promo code ferguson. So switch to Patriot Mobile and 179 00:10:39,400 --> 00:10:42,720 Speaker 1: make a difference with every call you make Patriot Mobile 180 00:10:42,760 --> 00:10:46,400 Speaker 1: dot com slash ferguson or nine seven to two Patriot. 181 00:10:46,880 --> 00:10:48,240 Speaker 2: The Supreme Court. 182 00:10:48,040 --> 00:10:51,680 Speaker 1: Had a very busy day on Thursday, and one of 183 00:10:51,679 --> 00:10:55,800 Speaker 1: the most consequential cases involving the Trump administration. 184 00:10:56,720 --> 00:10:59,000 Speaker 2: It was heard in front of the Supreme Court. 185 00:10:59,040 --> 00:11:01,240 Speaker 1: Now, my former roommate, you don't get to say this 186 00:11:01,320 --> 00:11:05,480 Speaker 1: every day, is also the Attorney General from West Virginia. 187 00:11:05,640 --> 00:11:08,400 Speaker 1: We were together actually on Capitol Hill. I'm staring at 188 00:11:08,440 --> 00:11:12,120 Speaker 1: the Supreme Court right now, and he was in the 189 00:11:12,160 --> 00:11:15,080 Speaker 1: Supreme Court today for this important, this. 190 00:11:15,120 --> 00:11:17,400 Speaker 2: Major case on judges power. 191 00:11:17,880 --> 00:11:20,560 Speaker 1: And I want to go to you, JB on this 192 00:11:20,720 --> 00:11:25,079 Speaker 1: so that you can explain how all this started. In essence, 193 00:11:25,160 --> 00:11:28,760 Speaker 1: you had judges that were making decisions that were covering 194 00:11:28,760 --> 00:11:32,000 Speaker 1: the entire country. And the argument is, maybe that's not 195 00:11:32,040 --> 00:11:34,839 Speaker 1: how it's supposed to be on these local levels or 196 00:11:34,920 --> 00:11:38,160 Speaker 1: these these smaller court battles, and this is what this 197 00:11:38,360 --> 00:11:39,120 Speaker 1: is all about. 198 00:11:39,480 --> 00:11:41,600 Speaker 3: Yeah, I think you what you just said there makes 199 00:11:41,600 --> 00:11:44,200 Speaker 3: a lot of sense. This is a national issue that 200 00:11:44,320 --> 00:11:47,320 Speaker 3: was to solve that was decided or attempted to be 201 00:11:47,360 --> 00:11:50,200 Speaker 3: decided by a district court judge. And so what happens, 202 00:11:50,960 --> 00:11:54,200 Speaker 3: and this has been happening a lot, especially very recently 203 00:11:54,240 --> 00:11:57,000 Speaker 3: within the last thirty years, and that's a bipartisant problem then, 204 00:11:57,559 --> 00:12:02,640 Speaker 3: is that district court judges are in joining presidential decrees 205 00:12:02,880 --> 00:12:06,240 Speaker 3: right and saying what the president has done is not 206 00:12:06,320 --> 00:12:08,760 Speaker 3: just illegal in my courtroom, but it's illegal in the 207 00:12:08,880 --> 00:12:12,840 Speaker 3: entire country. And our process is set up differently than that. 208 00:12:13,240 --> 00:12:16,280 Speaker 3: Our district court judges are supposed to hear cases that 209 00:12:16,320 --> 00:12:18,760 Speaker 3: are in front of them and make decisions for the 210 00:12:18,840 --> 00:12:22,120 Speaker 3: plaintiffs that are in front of them. Here, several interest 211 00:12:22,160 --> 00:12:25,760 Speaker 3: groups in several states sued in a I'm going to 212 00:12:25,840 --> 00:12:28,720 Speaker 3: just say a friendly jurisdiction, which is how this works, 213 00:12:28,760 --> 00:12:31,200 Speaker 3: as you find a judge that is ideologically aligned with 214 00:12:31,240 --> 00:12:34,640 Speaker 3: you and you get them to enjoin an entire action. 215 00:12:35,080 --> 00:12:37,600 Speaker 3: That happened in this case in New Jersey. And so 216 00:12:37,679 --> 00:12:40,840 Speaker 3: a New Jersey judge then decided for all other of 217 00:12:40,880 --> 00:12:43,040 Speaker 3: the six hundred district court judges and all of the 218 00:12:43,080 --> 00:12:46,559 Speaker 3: circuit judges, and ostensibly for the Supreme Court whether or 219 00:12:46,640 --> 00:12:51,480 Speaker 3: not a presidential order was constitutional. While we did not 220 00:12:51,600 --> 00:12:54,400 Speaker 3: get into the underlying facts of this case today, ben 221 00:12:54,720 --> 00:12:56,880 Speaker 3: what the Supreme Court was hearing, and what our brief 222 00:12:56,960 --> 00:13:00,840 Speaker 3: described was the reasons why this is both unconstitutional and 223 00:13:00,880 --> 00:13:04,680 Speaker 3: a bad idea. So, for one, both the history of 224 00:13:04,720 --> 00:13:07,439 Speaker 3: our courts as you look back into the courts of 225 00:13:07,520 --> 00:13:10,760 Speaker 3: Chancery in England, as well as Article three, which was 226 00:13:10,800 --> 00:13:14,680 Speaker 3: written to delineate the powers of our courts, indicate that 227 00:13:14,880 --> 00:13:20,320 Speaker 3: circuit judges do not have the authority to issue nationwide injunctions. Further, 228 00:13:20,720 --> 00:13:22,800 Speaker 3: our brief gets into the idea that there is a 229 00:13:22,880 --> 00:13:25,160 Speaker 3: remedy here, and the remedy is is that if you're 230 00:13:25,400 --> 00:13:29,640 Speaker 3: looking to have a district court make a decision for 231 00:13:29,679 --> 00:13:32,040 Speaker 3: a large number of people, you have to go through 232 00:13:32,080 --> 00:13:35,079 Speaker 3: what's called a Rule twenty three and create a class action, 233 00:13:35,240 --> 00:13:37,920 Speaker 3: so then the court knows who the plaintiffs are that 234 00:13:37,960 --> 00:13:41,800 Speaker 3: they're trying to address a problem for. And fourth, and 235 00:13:41,960 --> 00:13:46,400 Speaker 3: maybe most importantly is that district courts and our federal 236 00:13:46,400 --> 00:13:49,760 Speaker 3: court systems, they are life tenured for a reason, and 237 00:13:49,840 --> 00:13:55,960 Speaker 3: that is to eliminate the stench of politics from the 238 00:13:56,000 --> 00:13:59,000 Speaker 3: benches around the country. And when you do forum shopping 239 00:13:59,000 --> 00:14:02,280 Speaker 3: and you start to use these universal injunctions in these 240 00:14:02,320 --> 00:14:06,000 Speaker 3: sort of weaponized ways, what you then will find, I 241 00:14:06,080 --> 00:14:09,640 Speaker 3: believe and our brief delineates that the confidence that the 242 00:14:09,720 --> 00:14:13,240 Speaker 3: public has in the independence of our judiciary will go 243 00:14:13,360 --> 00:14:17,040 Speaker 3: down very quickly. And that is the single most important 244 00:14:17,040 --> 00:14:19,800 Speaker 3: branch for the public to have confidence in, because it 245 00:14:19,880 --> 00:14:23,360 Speaker 3: is their orders and it is their writings that tell 246 00:14:23,440 --> 00:14:27,120 Speaker 3: every American how the Constitution is being interpreted as it 247 00:14:27,160 --> 00:14:29,560 Speaker 3: relates to the laws that apply to them. So this 248 00:14:29,640 --> 00:14:32,680 Speaker 3: is a really big case. We feel really really good 249 00:14:32,720 --> 00:14:35,840 Speaker 3: about our briefing. The people in West Virginia joined with 250 00:14:36,280 --> 00:14:38,440 Speaker 3: a group called the American Center for Law and Justice 251 00:14:38,600 --> 00:14:42,080 Speaker 3: in this briefing, and we're very hopeful that the Court 252 00:14:42,080 --> 00:14:45,280 Speaker 3: will use our amicus to guide them into what I 253 00:14:45,320 --> 00:14:48,000 Speaker 3: believe is a proper decision, and that is the district 254 00:14:48,040 --> 00:14:52,040 Speaker 3: courts lack the ability to adjoin the entire country as 255 00:14:52,040 --> 00:14:54,520 Speaker 3: it relates to presidential executive orders. 256 00:14:54,760 --> 00:14:58,240 Speaker 1: So let's talk about the amicus brief and break that down. 257 00:14:58,560 --> 00:15:01,360 Speaker 1: The goal of an amicus brief, And people that are listening, 258 00:15:01,400 --> 00:15:03,640 Speaker 1: my guess with me is the Attorney General from West Virginia, JB. 259 00:15:03,760 --> 00:15:04,240 Speaker 2: Mccusky. 260 00:15:04,320 --> 00:15:07,320 Speaker 1: I want a dear friend of mine, former roommate, and were, 261 00:15:07,360 --> 00:15:09,640 Speaker 1: as I stare at literally at the Supreme Court right now, 262 00:15:09,800 --> 00:15:12,680 Speaker 1: you just left the Supreme Court where you guys filed 263 00:15:12,720 --> 00:15:17,120 Speaker 1: this amicus brief with the ACLJ. What is the goal 264 00:15:17,120 --> 00:15:19,640 Speaker 1: of an amicus brief for people that maybe don't understand 265 00:15:19,680 --> 00:15:23,520 Speaker 1: that terminology, maybe they've ever heard it before, And specifically, 266 00:15:23,560 --> 00:15:26,440 Speaker 1: what did you guys put in that amicus brief that 267 00:15:26,480 --> 00:15:29,120 Speaker 1: you're hoping that the justices will get from it and 268 00:15:29,200 --> 00:15:30,720 Speaker 1: read from it on this case. 269 00:15:31,280 --> 00:15:33,880 Speaker 3: Yeah, So, an amicus brief is in Layman's term, it's 270 00:15:33,880 --> 00:15:35,920 Speaker 3: called a friend of the court brief, and so what 271 00:15:36,280 --> 00:15:39,000 Speaker 3: its purpose is is to help the justices as they're 272 00:15:39,040 --> 00:15:42,280 Speaker 3: making their decision with parties who have an interest in 273 00:15:42,320 --> 00:15:44,760 Speaker 3: the outcome. And in West Virginia, the interest in this 274 00:15:44,840 --> 00:15:50,320 Speaker 3: outcome comes from this widespread, weaponized use of nationwide injunctions. 275 00:15:50,560 --> 00:15:53,320 Speaker 3: We just saw within the last week a nation a 276 00:15:53,440 --> 00:15:56,400 Speaker 3: wide injunction out of the state of Washington that will 277 00:15:56,400 --> 00:15:59,240 Speaker 3: stop President Trump's executive orders on the use of coal 278 00:15:59,440 --> 00:16:02,760 Speaker 3: and lower electricity rates for Americans and putting West Virginia 279 00:16:02,800 --> 00:16:06,400 Speaker 3: coal miners back to work today in order to meet 280 00:16:06,400 --> 00:16:09,760 Speaker 3: our nation's energy needs. And so for us, these nationwide injunctions, 281 00:16:09,880 --> 00:16:12,800 Speaker 3: when you're a small rural state, they are never going 282 00:16:12,840 --> 00:16:14,720 Speaker 3: to be the forum that gets shopped into right. They're 283 00:16:14,720 --> 00:16:18,440 Speaker 3: never going to ask real patriotic Americans like they are 284 00:16:18,480 --> 00:16:20,320 Speaker 3: in West Virginia to answer these questions. They're going to 285 00:16:20,360 --> 00:16:22,360 Speaker 3: go to places where it's a little different. And so 286 00:16:22,400 --> 00:16:25,400 Speaker 3: we have a huge interest in ensuring that the process 287 00:16:25,440 --> 00:16:28,760 Speaker 3: plays out in nationwide injunctions to make sure that these 288 00:16:29,120 --> 00:16:32,760 Speaker 3: the President's executive orders as they relate to the economy 289 00:16:32,920 --> 00:16:35,720 Speaker 3: and the people of West Virginia are upheld and if 290 00:16:35,760 --> 00:16:38,120 Speaker 3: they are found to be unconstitutional that they go through 291 00:16:38,360 --> 00:16:41,240 Speaker 3: the proper channels. And that is what our brief says. 292 00:16:41,360 --> 00:16:45,520 Speaker 3: Our brief says that it isn't that the plaintiffs don't 293 00:16:45,560 --> 00:16:49,000 Speaker 3: have any options. Our brief says the options that they 294 00:16:49,120 --> 00:16:51,520 Speaker 3: chose are not available to the court that made them. 295 00:16:51,760 --> 00:16:53,600 Speaker 3: So they needed to have gone through what's called a 296 00:16:53,680 --> 00:16:56,240 Speaker 3: rule twenty three, as I just said, and explain to 297 00:16:56,280 --> 00:16:59,600 Speaker 3: the court why they have a class of plaintiffs that 298 00:16:59,640 --> 00:17:03,040 Speaker 3: have a similar need for this same kind of relief, 299 00:17:03,560 --> 00:17:06,400 Speaker 3: and then the court can order that those people get 300 00:17:06,400 --> 00:17:09,600 Speaker 3: that relief. And then if another district court or another 301 00:17:09,680 --> 00:17:13,160 Speaker 3: circuit court comes to a contrary conclusion, then the Supreme 302 00:17:13,200 --> 00:17:16,840 Speaker 3: Court can use that. The Supreme Court's power generally comes 303 00:17:16,840 --> 00:17:20,399 Speaker 3: from when they are deciding between circuits that have a 304 00:17:20,440 --> 00:17:23,560 Speaker 3: different interpretation of the law. And in this instance, they 305 00:17:23,560 --> 00:17:27,240 Speaker 3: circumvented that entire process by getting one single district court 306 00:17:27,280 --> 00:17:30,199 Speaker 3: judge to speak for the entire country. And that is 307 00:17:30,240 --> 00:17:33,120 Speaker 3: not allowed under Article three. And it's a really bad 308 00:17:33,160 --> 00:17:36,480 Speaker 3: idea in terms of public confidence and the independence of 309 00:17:36,520 --> 00:17:37,359 Speaker 3: our judicial branch. 310 00:17:38,680 --> 00:17:42,200 Speaker 1: Is it fair to say that the mechanism that's being 311 00:17:42,320 --> 00:17:44,840 Speaker 1: used by the left to go and find these friendly 312 00:17:44,920 --> 00:17:48,359 Speaker 1: judges and friendly courts to do this. Is this a 313 00:17:48,480 --> 00:17:51,959 Speaker 1: version of lawfare where you say, we don't respect the people, 314 00:17:52,160 --> 00:17:55,040 Speaker 1: we don't respect their vote, we don't respect who they 315 00:17:55,119 --> 00:17:57,320 Speaker 1: chose as their leader, which this time happens to the 316 00:17:57,400 --> 00:17:58,560 Speaker 1: President Donald J. 317 00:17:58,680 --> 00:17:59,080 Speaker 2: Trump. 318 00:17:59,760 --> 00:18:03,119 Speaker 1: And so therefore we are going to use lawfair to 319 00:18:03,280 --> 00:18:06,399 Speaker 1: stop the will of the people and what they voted 320 00:18:06,440 --> 00:18:08,720 Speaker 1: for and what their leaders that they voted for, who 321 00:18:08,720 --> 00:18:11,040 Speaker 1: won in a free and fair election are trying to do. 322 00:18:11,359 --> 00:18:14,160 Speaker 3: Well. I hesitate to use the word lawfare here, Ben, 323 00:18:14,200 --> 00:18:17,639 Speaker 3: because we do the same thing occasionally when there's Democrats 324 00:18:17,640 --> 00:18:19,560 Speaker 3: in the White House. And it's not that we have 325 00:18:19,600 --> 00:18:24,080 Speaker 3: a problem with challenging federal government edicts. Right, We as 326 00:18:24,160 --> 00:18:28,280 Speaker 3: Republicans are constantly finding ways that the federal government is 327 00:18:28,320 --> 00:18:31,200 Speaker 3: overstepping its bounds, and we use the courts in order 328 00:18:31,240 --> 00:18:33,560 Speaker 3: to rain them in like in West Virginia versus EPA. 329 00:18:34,040 --> 00:18:34,240 Speaker 2: Right. 330 00:18:34,520 --> 00:18:38,200 Speaker 3: So it isn't that this is It isn't lawfare as 331 00:18:38,200 --> 00:18:40,520 Speaker 3: you describe it, because we need the option to be 332 00:18:40,560 --> 00:18:43,360 Speaker 3: able to do this too. It is the kind of lawfare, 333 00:18:43,440 --> 00:18:43,960 Speaker 3: right it is. 334 00:18:44,200 --> 00:18:44,639 Speaker 2: It is this. 335 00:18:46,480 --> 00:18:49,840 Speaker 3: Novel concept that you use a single friendly district court 336 00:18:50,119 --> 00:18:51,919 Speaker 3: to do what is supposed to be the job of 337 00:18:51,960 --> 00:18:55,399 Speaker 3: the entire judiciary. Right, there's a reason why our system 338 00:18:55,440 --> 00:18:57,400 Speaker 3: has set up the way that it is. And I 339 00:18:57,440 --> 00:19:01,640 Speaker 3: personally believe as an originalist that the the factual scenarios 340 00:19:01,800 --> 00:19:07,080 Speaker 3: surrounding the reason why somebody's asking for something shouldn't change 341 00:19:07,359 --> 00:19:10,359 Speaker 3: the fundamental role and the rules that surround our court. 342 00:19:10,760 --> 00:19:15,600 Speaker 3: And that was really in essence, the main part of 343 00:19:15,600 --> 00:19:19,639 Speaker 3: this argument is should we break the rules because this 344 00:19:19,760 --> 00:19:22,959 Speaker 3: is important and my personal opinion is is that is 345 00:19:23,040 --> 00:19:29,159 Speaker 3: not true. We should maintain the constitutionally granted powers that 346 00:19:29,240 --> 00:19:32,200 Speaker 3: exist in our district courts and allow the system as 347 00:19:32,240 --> 00:19:35,560 Speaker 3: it was created by our founders to work because it does. 348 00:19:36,040 --> 00:19:37,919 Speaker 1: What was the demeanor of the judges and what were 349 00:19:37,960 --> 00:19:40,280 Speaker 1: the main things they were honing in on as you 350 00:19:40,320 --> 00:19:42,520 Speaker 1: were in there listening to this. You were there for 351 00:19:42,600 --> 00:19:46,600 Speaker 1: about four hours waiting, and part of that's waiting time. 352 00:19:46,840 --> 00:19:50,000 Speaker 1: But what were their big questioning and could you read 353 00:19:50,040 --> 00:19:52,480 Speaker 1: into what you think the possible outcome could be here? 354 00:19:52,480 --> 00:19:55,600 Speaker 1: And what is best case scenario? What is fifty to 355 00:19:55,680 --> 00:20:00,120 Speaker 1: fifty for you know, conservatives on this one? What is 356 00:20:00,119 --> 00:20:02,480 Speaker 1: what does success draw or lowers look like? 357 00:20:02,840 --> 00:20:05,399 Speaker 3: Yeah, so the judges, this was a very long argument, 358 00:20:05,760 --> 00:20:07,440 Speaker 3: and for your listeners out there, if you ever want 359 00:20:07,480 --> 00:20:09,439 Speaker 3: to go to the Supreme Court, the seats are not 360 00:20:09,520 --> 00:20:12,359 Speaker 3: very comfortable, and so you know, by the end of it, 361 00:20:12,640 --> 00:20:15,320 Speaker 3: your dogs were marked pretty well. But the judges were 362 00:20:15,440 --> 00:20:20,320 Speaker 3: very serious because this is an issue that affects not 363 00:20:20,400 --> 00:20:21,879 Speaker 3: just the issue that was in front of them, but 364 00:20:21,920 --> 00:20:26,240 Speaker 3: as you heard, it has great historical significance and enormous 365 00:20:26,480 --> 00:20:30,200 Speaker 3: future looking significance as well. They understand that the answer 366 00:20:30,240 --> 00:20:33,680 Speaker 3: to this question and the ruling in this case will 367 00:20:33,800 --> 00:20:37,240 Speaker 3: likely have an enormous effect on how the judiciary operates 368 00:20:37,480 --> 00:20:39,960 Speaker 3: going forward for a very very long time. And so 369 00:20:40,000 --> 00:20:43,200 Speaker 3: they were asking a lot of questions and I don't 370 00:20:43,240 --> 00:20:48,600 Speaker 3: know how frequently this happens, but about the historical beginnings 371 00:20:48,600 --> 00:20:51,920 Speaker 3: of Article three. You know, what were the British courts 372 00:20:52,200 --> 00:20:55,480 Speaker 3: that we were modeling our courts after. What were they doing, 373 00:20:55,760 --> 00:20:57,879 Speaker 3: you know? And so we could sort of get a 374 00:20:57,920 --> 00:21:00,800 Speaker 3: look into the mind of the framers and the founders 375 00:21:00,880 --> 00:21:03,639 Speaker 3: is they were designing our courts. They were obviously looking 376 00:21:03,960 --> 00:21:07,760 Speaker 3: to their former homeland to get an archetype and so 377 00:21:08,400 --> 00:21:10,480 Speaker 3: they were looking a lot at that, and the other 378 00:21:10,600 --> 00:21:16,359 Speaker 3: questions really centered around this idea of what happens in 379 00:21:16,520 --> 00:21:18,840 Speaker 3: either event, right, So there were a lot of questions 380 00:21:18,840 --> 00:21:23,159 Speaker 3: that were like, if I agree with you, what do 381 00:21:23,200 --> 00:21:25,919 Speaker 3: you think will happen? And they asked that to both sides. Right, So, 382 00:21:26,320 --> 00:21:29,919 Speaker 3: if we decide there are no universal injunctions government, what 383 00:21:30,160 --> 00:21:33,320 Speaker 3: happens to the folks who would be affected by the 384 00:21:33,720 --> 00:21:36,840 Speaker 3: executive order during the pendency of the time where it 385 00:21:36,840 --> 00:21:38,679 Speaker 3: would get fully breathed in all the circuits and all 386 00:21:38,680 --> 00:21:41,199 Speaker 3: the districts, which I think matters. I think that's an 387 00:21:41,240 --> 00:21:44,960 Speaker 3: incredibly important question because the answer to that is there 388 00:21:45,000 --> 00:21:47,560 Speaker 3: will be lots of other lawsuits in lots of other places, 389 00:21:47,880 --> 00:21:49,680 Speaker 3: and they might win some and they might lose some. 390 00:21:50,640 --> 00:21:54,280 Speaker 3: And so that's when you start to get the true 391 00:21:54,359 --> 00:21:58,359 Speaker 3: confluence of what is the question that the circuit courts 392 00:21:58,400 --> 00:22:01,280 Speaker 3: are answering differently? And when do we need to step 393 00:22:01,320 --> 00:22:04,159 Speaker 3: in to make this decision because the Supreme Court creates 394 00:22:04,280 --> 00:22:08,040 Speaker 3: precedent for the entire country. The other main questions I 395 00:22:08,119 --> 00:22:12,760 Speaker 3: feel like we're the most important were why do you 396 00:22:12,960 --> 00:22:17,919 Speaker 3: believe that a district court has the ability to enjoin 397 00:22:18,000 --> 00:22:22,040 Speaker 3: an entire country? And they were obviously answered differently by 398 00:22:22,040 --> 00:22:25,040 Speaker 3: the two different parties, but the Court was really trying 399 00:22:25,040 --> 00:22:27,480 Speaker 3: to There were a lot of very functional questions I 400 00:22:27,520 --> 00:22:30,600 Speaker 3: think that were enabling them to get to their conclusion. 401 00:22:30,880 --> 00:22:34,400 Speaker 3: Is is it an unfair result to use the process 402 00:22:34,440 --> 00:22:37,239 Speaker 3: as it was delineated in the Constitution. It's always the 403 00:22:37,280 --> 00:22:40,280 Speaker 3: most fair to do something properly, and I don't think 404 00:22:40,280 --> 00:22:43,240 Speaker 3: that there is an unfair result if the court says 405 00:22:43,640 --> 00:22:48,400 Speaker 3: to the complaining parties that, look, you have a gripe here, 406 00:22:48,680 --> 00:22:50,720 Speaker 3: but you got to do it the right way. The 407 00:22:50,760 --> 00:22:53,119 Speaker 3: second part of your question, Ben, was what does victory 408 00:22:53,119 --> 00:22:58,399 Speaker 3: look like. Victory is the court saying to all of 409 00:22:58,400 --> 00:23:01,399 Speaker 3: the district courts that nation wide injunctions are not an 410 00:23:01,440 --> 00:23:05,240 Speaker 3: appropriate thing for district courts to be doing, and eliminating 411 00:23:05,240 --> 00:23:08,000 Speaker 3: that function of district courts completely. We don't believe that 412 00:23:08,080 --> 00:23:12,240 Speaker 3: that's constitutional. A half victory, and I hate to talk 413 00:23:12,280 --> 00:23:15,760 Speaker 3: about half victories, would be a ruling that says something like, 414 00:23:16,359 --> 00:23:20,600 Speaker 3: we believe that nationwide injunction should be extremely disfavored, and 415 00:23:20,680 --> 00:23:23,359 Speaker 3: here is a test to determine whether or not a 416 00:23:23,440 --> 00:23:27,080 Speaker 3: court can issue a nationwide injunction. At the district court, though, 417 00:23:27,600 --> 00:23:30,240 Speaker 3: give them a roadmap for the questions they need to 418 00:23:30,320 --> 00:23:32,639 Speaker 3: answer as to whether or not they can do it 419 00:23:32,720 --> 00:23:37,080 Speaker 3: or not, and a loss, a full loss is just 420 00:23:37,560 --> 00:23:43,159 Speaker 3: nationwide injunctions are found to be an appropriate action to 421 00:23:43,200 --> 00:23:45,600 Speaker 3: take by a district court, and we think that will 422 00:23:45,680 --> 00:23:48,720 Speaker 3: result in a little bit of judicial chaos. 423 00:23:48,800 --> 00:23:50,959 Speaker 1: My guess with me the Attorney General from West Virginia, 424 00:23:51,000 --> 00:23:54,480 Speaker 1: J B. McCuskey, JB. Final question for you is timing 425 00:23:55,160 --> 00:23:57,439 Speaker 1: on this. Is this one of those rulings that we 426 00:23:57,480 --> 00:23:59,879 Speaker 1: could probably hear saying quickly from the Supreme Court or 427 00:24:00,160 --> 00:24:03,880 Speaker 1: just take weeks or months? And can you read into 428 00:24:03,920 --> 00:24:06,120 Speaker 1: how quickly they respond and if that good or bad 429 00:24:06,119 --> 00:24:08,119 Speaker 1: news a lot more time they take, is that better 430 00:24:08,240 --> 00:24:10,200 Speaker 1: for us or the last time they take probably better 431 00:24:10,240 --> 00:24:12,679 Speaker 1: for us? Read into that for people that don't understand 432 00:24:12,680 --> 00:24:13,760 Speaker 1: exactly how the court works. 433 00:24:14,119 --> 00:24:17,080 Speaker 3: Yeah, So I would say that this will likely come 434 00:24:17,119 --> 00:24:20,120 Speaker 3: out quickly, and I think the faster it comes out, 435 00:24:20,160 --> 00:24:22,119 Speaker 3: the more likely it is that we have been successful. 436 00:24:22,280 --> 00:24:24,560 Speaker 2: So weeks you're thinking here, Yeah. 437 00:24:24,359 --> 00:24:26,640 Speaker 3: I would think that a couple of weeks would be 438 00:24:26,840 --> 00:24:29,240 Speaker 3: a very reasonable amount of time for them to decide 439 00:24:29,240 --> 00:24:32,640 Speaker 3: this because there is a very significant interest of time 440 00:24:32,680 --> 00:24:36,399 Speaker 3: here and the court understands that. And the fact that 441 00:24:36,440 --> 00:24:39,040 Speaker 3: they heard this case on an emergency basis indicates that 442 00:24:39,040 --> 00:24:41,640 Speaker 3: they're probably going to issue an opinion in the same 443 00:24:41,720 --> 00:24:45,000 Speaker 3: kind of hurried stance. 444 00:24:45,400 --> 00:24:48,280 Speaker 1: Make sure you share this podcast with your family and friends, 445 00:24:48,280 --> 00:24:51,200 Speaker 1: put it up on social media wherever you are, and 446 00:24:51,240 --> 00:24:53,000 Speaker 1: we appreciate you listening every day. 447 00:24:53,040 --> 00:24:54,480 Speaker 2: We'll see you back here tomorrow.