1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you insight and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

5
00:00:16,280 --> 00:00:19,959
Speaker 1: and on Bloomberg dot com slash podcasts. President Trump is

6
00:00:19,960 --> 00:00:22,759
Speaker 1: taking his biggest step yet towards building his border wall

7
00:00:22,840 --> 00:00:25,840
Speaker 1: thanks to the Supreme Court. That justice has cleared him

8
00:00:25,880 --> 00:00:28,560
Speaker 1: to build one miles of fencing along the border with

9
00:00:28,680 --> 00:00:32,600
Speaker 1: two point five billion dollars diverted from Pentagon funds while

10
00:00:32,640 --> 00:00:36,320
Speaker 1: the litigation over the matter proceeds. Joining me as constitutional

11
00:00:36,360 --> 00:00:39,599
Speaker 1: law experts, Stephen Vladdock, Professor at the University of Texas

12
00:00:39,640 --> 00:00:43,360
Speaker 1: Law School, So, Steve, this is the first time the

13
00:00:43,400 --> 00:00:46,120
Speaker 1: Supreme Court has acted in the dispute over the national

14
00:00:46,200 --> 00:00:50,520
Speaker 1: emergency Trump declared. Is it an indication of what will

15
00:00:50,560 --> 00:00:53,239
Speaker 1: happen when the case comes before the court for a

16
00:00:53,320 --> 00:00:57,600
Speaker 1: final decision. I think what's interesting about the order of

17
00:00:57,600 --> 00:01:00,280
Speaker 1: the Supreme Court issues said, Unlike many of the there

18
00:01:00,360 --> 00:01:03,160
Speaker 1: stays that the government has asked where the Screen Court

19
00:01:03,200 --> 00:01:07,399
Speaker 1: has granted in some of these high profile Trump administration lawsuits,

20
00:01:07,600 --> 00:01:10,120
Speaker 1: the court actually provided at least a little bit of reasoning.

21
00:01:10,160 --> 00:01:12,880
Speaker 1: It suggested that it would stay on the lower court's

22
00:01:13,040 --> 00:01:16,440
Speaker 1: decision because there was some concern about whether the planets

23
00:01:16,520 --> 00:01:19,039
Speaker 1: even have a cause of action in that respect. I

24
00:01:19,040 --> 00:01:21,280
Speaker 1: think the Court has now sent a message to the

25
00:01:21,280 --> 00:01:24,640
Speaker 1: lower courts on what the real central question ought to

26
00:01:24,680 --> 00:01:28,280
Speaker 1: be as this case unfold. I'm not sure it's necessarily

27
00:01:28,280 --> 00:01:29,920
Speaker 1: committed in the court to say in the same thing

28
00:01:29,959 --> 00:01:32,280
Speaker 1: on the merits, but it's certainly shape in how this

29
00:01:32,400 --> 00:01:35,520
Speaker 1: litigation is going in unfold going forward. So what is

30
00:01:35,600 --> 00:01:38,360
Speaker 1: the real question? So I think the real question is

31
00:01:38,680 --> 00:01:42,600
Speaker 1: are these plainists, so Sierra Club, other environmental groups, the

32
00:01:42,760 --> 00:01:45,360
Speaker 1: kind of folks who should be able to bring the

33
00:01:45,400 --> 00:01:48,520
Speaker 1: specific loss that issue, that is to say, arguing that

34
00:01:48,560 --> 00:01:52,080
Speaker 1: the president is effectively spending money that Congress did not

35
00:01:52,200 --> 00:01:56,000
Speaker 1: properly appropriate. And so that's less a question about whether

36
00:01:56,360 --> 00:01:59,200
Speaker 1: there's a problem with the injunction or whether the president

37
00:01:59,280 --> 00:02:01,600
Speaker 1: has the legal really do what he's doing. It's more

38
00:02:01,600 --> 00:02:04,440
Speaker 1: a question about whether there's a cause of action, that

39
00:02:04,600 --> 00:02:07,360
Speaker 1: is to say, a specific entitlement on the part of

40
00:02:07,400 --> 00:02:10,000
Speaker 1: these plaintiffs to bring them this kind of claim against

41
00:02:10,040 --> 00:02:14,480
Speaker 1: the president. So then if you had plaintiffs like landowners

42
00:02:14,600 --> 00:02:17,440
Speaker 1: or perhaps the County of al Passo it might have

43
00:02:17,480 --> 00:02:21,200
Speaker 1: a better claim or standing to bring the suit. Yeah,

44
00:02:21,200 --> 00:02:23,520
Speaker 1: I mean, I think there's both a standing question, which is,

45
00:02:23,600 --> 00:02:26,560
Speaker 1: you know, are these planets actually injured by the government's

46
00:02:26,600 --> 00:02:28,560
Speaker 1: proposed contest, And here I actually think the planets didn't

47
00:02:28,600 --> 00:02:31,640
Speaker 1: have standing, and there's a separate cause of action question.

48
00:02:31,960 --> 00:02:34,960
Speaker 1: I think there's some uncertainty June about exactly who the

49
00:02:35,000 --> 00:02:37,160
Speaker 1: right planets are from the perspective of a cause of action.

50
00:02:37,520 --> 00:02:40,480
Speaker 1: You know, I think there's actually some reason to dispute

51
00:02:40,600 --> 00:02:42,760
Speaker 1: what the majority of the justices at least hinted at.

52
00:02:42,800 --> 00:02:45,360
Speaker 1: Both the District Court in its opinion in this case

53
00:02:45,400 --> 00:02:48,160
Speaker 1: and the Ninth Circuit in denying a stay spent some

54
00:02:48,240 --> 00:02:50,200
Speaker 1: time on this issue and concluded that there was a

55
00:02:50,200 --> 00:02:52,359
Speaker 1: cause of action. But I think it's pretty clear to

56
00:02:52,440 --> 00:02:54,760
Speaker 1: him that that's where the real focus is going to

57
00:02:54,840 --> 00:02:57,280
Speaker 1: be going forward, which is, I think a little different

58
00:02:57,280 --> 00:02:58,880
Speaker 1: from how this is portrayed. And I think the Wall

59
00:02:58,880 --> 00:03:02,680
Speaker 1: Street Journal portrait that has yet another repudiation of a

60
00:03:02,760 --> 00:03:05,639
Speaker 1: nationwide injunction, that's not really what's going on here. I

61
00:03:05,639 --> 00:03:07,919
Speaker 1: think this is a much more specific and if you'll

62
00:03:07,919 --> 00:03:11,840
Speaker 1: forgive me, much more legalistic law that the justices are

63
00:03:11,919 --> 00:03:14,679
Speaker 1: highlighting for the lower courts to work out. So then

64
00:03:14,840 --> 00:03:18,840
Speaker 1: it's less a question of executive power and whether these

65
00:03:18,919 --> 00:03:24,360
Speaker 1: particular justices support an expansive view of executive power. Indeed,

66
00:03:24,360 --> 00:03:26,680
Speaker 1: and I think it's actually quite talenting that when the

67
00:03:26,760 --> 00:03:29,760
Speaker 1: justices in the majority, you know, decided to provide at

68
00:03:29,840 --> 00:03:32,600
Speaker 1: least a little bit of reasoning to explain why they

69
00:03:32,600 --> 00:03:35,560
Speaker 1: were voting for this day, they said, nerey a word

70
00:03:35,600 --> 00:03:37,800
Speaker 1: about the merits. They didn't say that they actually think

71
00:03:38,120 --> 00:03:41,880
Speaker 1: the government has a strong likelihood of success on the merits. Rather,

72
00:03:41,960 --> 00:03:43,840
Speaker 1: they simply said they weren't sure the plainets had a

73
00:03:43,920 --> 00:03:46,800
Speaker 1: cause of action. So if I'm the government, I actually

74
00:03:46,800 --> 00:03:49,480
Speaker 1: take it as a pretty bad sign for how this

75
00:03:49,600 --> 00:03:52,520
Speaker 1: litigation is going to go if and when either the

76
00:03:52,600 --> 00:03:56,480
Speaker 1: cause of action issue is conclusively resolved in Sierra Club's

77
00:03:56,520 --> 00:03:59,240
Speaker 1: favor or if we get other planets. You know what,

78
00:03:59,320 --> 00:04:03,480
Speaker 1: they clear connection to the border wall who are bringing

79
00:04:03,480 --> 00:04:05,960
Speaker 1: this lawsuit, because there's no one on the court right

80
00:04:06,000 --> 00:04:08,600
Speaker 1: now even hinting that they're inclined to side with the

81
00:04:08,600 --> 00:04:11,240
Speaker 1: government on the merits. To me, that's a pretty powerful

82
00:04:11,680 --> 00:04:15,160
Speaker 1: indication that the court actually has real concerns on that front.

83
00:04:15,480 --> 00:04:20,000
Speaker 1: So Justice Stephen Brier proposed a solution that seems to

84
00:04:20,040 --> 00:04:23,240
Speaker 1: me it would have kept the status quo in place.

85
00:04:23,320 --> 00:04:25,719
Speaker 1: He wrote, the solution would be to let the government

86
00:04:25,760 --> 00:04:30,400
Speaker 1: negotiate and sign contracts, but not start building. Does that

87
00:04:30,400 --> 00:04:32,320
Speaker 1: seem like a good solution to you? And why did

88
00:04:32,440 --> 00:04:35,599
Speaker 1: none of the other justices you know, chime in there? Yeah?

89
00:04:35,680 --> 00:04:37,839
Speaker 1: I mean, I think Justice Brier is absolutely right. And

90
00:04:37,880 --> 00:04:41,000
Speaker 1: so his basic proposal was, you know, the actual harm

91
00:04:41,080 --> 00:04:44,520
Speaker 1: the government invoked as justifying a stay was not the

92
00:04:44,560 --> 00:04:47,400
Speaker 1: inability to build the wall. It was about finalizing these

93
00:04:47,440 --> 00:04:50,560
Speaker 1: defense contracts. And so what Prier basically said is, let's

94
00:04:50,720 --> 00:04:53,159
Speaker 1: allow the government to finalize the contracts, but let's not

95
00:04:53,200 --> 00:04:55,920
Speaker 1: actually let them start building yet. June, I think part

96
00:04:55,960 --> 00:04:58,000
Speaker 1: of what's going on here, and after the paper is

97
00:04:58,160 --> 00:05:00,320
Speaker 1: coming out pretty soon that actually goes into more detail

98
00:05:00,360 --> 00:05:03,040
Speaker 1: on this is I think that the justices are actually

99
00:05:03,040 --> 00:05:06,400
Speaker 1: applying different standards from each other. That is to say,

100
00:05:06,440 --> 00:05:10,280
Speaker 1: for Justice Brier, right, part of the question is balancing

101
00:05:10,320 --> 00:05:12,960
Speaker 1: the equities. That is to say, what would harm the

102
00:05:13,040 --> 00:05:15,359
Speaker 1: government versus what would harm the planeffs? Is there a

103
00:05:15,400 --> 00:05:18,800
Speaker 1: way to minimize the harm to both parties, and so

104
00:05:18,920 --> 00:05:22,400
Speaker 1: for Briar, this split the difference compromise was perfect because

105
00:05:22,400 --> 00:05:25,960
Speaker 1: the government would get the urgent relief that it needed,

106
00:05:26,160 --> 00:05:28,279
Speaker 1: but the planets would get this sort of longer term

107
00:05:28,279 --> 00:05:32,400
Speaker 1: belief that they needed while the litigation unfolds. What we've seen, though,

108
00:05:32,480 --> 00:05:36,000
Speaker 1: June is in so many of these staycases, there now

109
00:05:36,040 --> 00:05:39,279
Speaker 1: seems to be a majority of the justices who actually

110
00:05:39,400 --> 00:05:42,839
Speaker 1: don't think that where there's an injunction against the government

111
00:05:42,880 --> 00:05:46,280
Speaker 1: in the lower courts, that the court should be balancing

112
00:05:46,320 --> 00:05:48,800
Speaker 1: the equities. Rather, there seems to be a majority of

113
00:05:48,880 --> 00:05:52,680
Speaker 1: justice who believe that any injunction against the government causes

114
00:05:52,720 --> 00:05:56,760
Speaker 1: irreparable harm to the government. That justifies relief so long

115
00:05:56,800 --> 00:05:59,400
Speaker 1: as there's a decent chance the government's gonna win on

116
00:05:59,440 --> 00:06:01,920
Speaker 1: the merits. And I think in Friday's order, June, we're

117
00:06:01,920 --> 00:06:06,200
Speaker 1: seeing exactly the difference in those two positions, and exactly

118
00:06:06,200 --> 00:06:08,880
Speaker 1: why Briar seems to be, you know, speaking a different

119
00:06:08,920 --> 00:06:14,960
Speaker 1: language than the majority. That basically turns the ideas of

120
00:06:15,000 --> 00:06:18,960
Speaker 1: what's necessary for an injunction upside down. So I think

121
00:06:19,000 --> 00:06:20,520
Speaker 1: it comes pretty close to them. I think one of

122
00:06:20,560 --> 00:06:22,520
Speaker 1: the things is that it puts all of the focused

123
00:06:22,600 --> 00:06:26,240
Speaker 1: June on the question of is the government likely to

124
00:06:26,240 --> 00:06:29,279
Speaker 1: win on the merits. It turns the entire question of

125
00:06:29,279 --> 00:06:31,720
Speaker 1: whether the government's going to get a stay pending an

126
00:06:31,760 --> 00:06:35,560
Speaker 1: appeal into a predictive judgment by the justices. And you

127
00:06:35,600 --> 00:06:37,520
Speaker 1: know in this paper it's called this listener General in

128
00:06:37,560 --> 00:06:40,680
Speaker 1: the Shadow Docket UM, and it's available already on SSRN.

129
00:06:40,920 --> 00:06:43,440
Speaker 1: I basically say, there are reasons why that actually is

130
00:06:43,480 --> 00:06:46,560
Speaker 1: not necessarily a helpful development. There are reasons why we

131
00:06:46,600 --> 00:06:49,359
Speaker 1: actually generally don't like to have the court trying to

132
00:06:49,360 --> 00:06:52,919
Speaker 1: make predictive judgments at this early stage of litigation, and

133
00:06:52,920 --> 00:06:55,320
Speaker 1: the reasons why I think Justice Brier has the better

134
00:06:55,400 --> 00:06:58,680
Speaker 1: of the argument, specifically in this case, that the court's

135
00:06:58,760 --> 00:07:01,520
Speaker 1: job is really to find a a to cause the

136
00:07:01,640 --> 00:07:04,520
Speaker 1: least hard to all parties and not just to the

137
00:07:04,560 --> 00:07:07,880
Speaker 1: government while these injunctions get appealed. I look forward to

138
00:07:07,880 --> 00:07:10,960
Speaker 1: reading that paper, Steve. That's Stephen Vladick, Professor at the

139
00:07:11,040 --> 00:07:15,160
Speaker 1: University of Texas Law School. Thanks for listening to the

140
00:07:15,200 --> 00:07:18,560
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

141
00:07:18,600 --> 00:07:22,520
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

142
00:07:22,560 --> 00:07:26,760
Speaker 1: slash podcast. I'm June brosso. This is Bloomberg,