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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: Since President Trump returned to office, his administration has made

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Speaker 2: twenty seven emergency requests to the Supreme Court, and the

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Speaker 2: Justices have granted those requests in full or in part.

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Speaker 2: Are remarkable twenty seven times, but Trump ignored that extraordinary

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Speaker 2: win loss record after the Court decried his signature tariffs

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Speaker 2: berating the justices who ruled against him as fools, lapdogs, unpatriotic,

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Speaker 2: and disloyal to the Constitution, and nearly a month later,

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Speaker 2: he again complained about his Supreme Court nominees not following

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Speaker 2: his wishes on Monday in the Oval Office. Republicans go

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Speaker 2: the opposite way. If Donald Trump appointed.

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Speaker 1: Me, I'm going to show the world that I can

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Speaker 1: be totally just, that I can be independent of that Trump.

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Speaker 2: He's not controlling me. Despite what the President may think

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Speaker 2: about how the Supreme Court is treating him, pressure is

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Speaker 2: growing on the justices over all those Trump emergency wins.

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Speaker 2: Joining me is Bloomberg Legal reporter Zoe Tillman. Zoe tell

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Speaker 2: us about the criticism of the Supreme Court's handling of

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Speaker 2: the emergency docket, and you know, President Trump's extraordinary record

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Speaker 2: of wins.

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Speaker 3: Right, So in the past, you know this, this option

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Speaker 3: of pursuing emergency relief from the justices has existed for

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Speaker 3: a long time. This predates this administration, It predates the

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Speaker 3: first Trump administration. In the past, there were instances where

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Speaker 3: on a you know, underscore emergency basis, issues would go

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Speaker 3: up while they were still pending in lower courts because

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Speaker 3: parties felt that there was this need for a sort

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Speaker 3: of immediate resolution of the.

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Speaker 1: Status quo by the justices.

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Speaker 3: But it was it was rare, and I think that

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Speaker 3: seemed to reflect what the intent was of calling something

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Speaker 3: an emergency. So during the first Trump administration, there was

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Speaker 3: this uptick in instances when the government, after losing repeatedly

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Speaker 3: in lower courts, would turn to the justices to say,

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Speaker 3: you know, this case is still pending, but there are

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Speaker 3: reasons why we're going to be irreparably harmed if you

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Speaker 3: don't step in now, and you know, let things continue

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Speaker 3: as we want them to while this is going forward.

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Speaker 1: Under the Biden administration, it went down a.

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Speaker 3: Bit from Trump one, but we still see sort of

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Speaker 3: more use of the docket. I think Trump one really

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Speaker 3: opened the door to this becoming a more commonplace part

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Speaker 3: of legal strategy. And then since Trump came back to office,

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Speaker 3: and you know, there's been a wave of unprecedented novel

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Speaker 3: excit ex bandsive uses of executive power that have faced

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Speaker 3: a wave of flood of lawsuits. There's been then another

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Speaker 3: flood wave whatever metaphor you want to use to describe

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Speaker 3: injunctions and orders against the government, and they've been taking

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Speaker 3: those up at a much higher rate.

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Speaker 1: Again back to the justices.

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Speaker 3: Now, the criticism is that increasingly it's becoming a more

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Speaker 3: commonplace part of the legal process in a way that

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Speaker 3: many critics say it's not supposed to be that you're

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Speaker 3: sort of skipping, leap frogging what's supposed to happen in

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Speaker 3: the lower courts. There's supposed to be a full airing

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Speaker 3: of the facts. Judges are supposed to get some time

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Speaker 3: to really think about the full record, analyze the law,

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Speaker 3: hand down fully reasoned decisions, and then parties can ask

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Speaker 3: the Supreme Court to come in and do their own

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Speaker 3: review of this.

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Speaker 1: But by going to the justices.

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Speaker 3: Early, the ideas that you're sort of short circuiting all

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Speaker 3: of this and there's no longer a full airing for

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Speaker 3: the justices put this sort of thumb on the scale

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Speaker 3: and say, yes, you can fire all these people even

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Speaker 3: though the case isn't over yet, or you know, yes,

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Speaker 3: you can refuse to pay out all this money, or

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Speaker 3: you can try to deport a lot of people even

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Speaker 3: though the case isn't over yet.

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Speaker 1: So that's how we got here.

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Speaker 2: One of the major criticisms is that in many of

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Speaker 2: these emergency orders, the justices have given little or no

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Speaker 2: explanation for their actions, and that's led district court judges

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Speaker 2: and even appellate court judges to reach different outcomes from

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Speaker 2: the Supreme courts, saying there's a lack of guidance from

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Speaker 2: the justices.

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Speaker 1: That's right.

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Speaker 3: And there's been this sort of extraordinary dialogue at times, disagreement,

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Speaker 3: open disagreement unfolding between lower court judges and the justices,

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Speaker 3: with the justice departments sort of serving as the intermediary

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Speaker 3: where you know, courts, district judges, circuit judges will hand down,

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Speaker 3: you know, opinions of pages fully analyzed, the Justice Department

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Speaker 3: gets an order from the Supreme Court. We've done analysis before,

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Speaker 3: you know. Some of these are a couple of sentences,

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Speaker 3: a couple of paragraphs, sometimes they offer a reason in

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Speaker 3: some summarized way, but sometimes they don't. And then the

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Speaker 3: Justice Department is taking these and going back to lower

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Speaker 3: courts and saying, see, we one, this means the court

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Speaker 3: is going to side with us.

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Speaker 1: Generally, you need to.

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Speaker 3: Back off, and lower court judges are saying that is

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Speaker 3: not at all how this works. It is not our

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Speaker 3: job to read tea leaves. That was a phrase one

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Speaker 3: judge actually used. That it's really not supposed to happen

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Speaker 3: that way, and it's not appropriate. Judges are saying for

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Speaker 3: it to happen that way. We're not supposed to infer

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Speaker 3: what the Supreme Court wants. They're supposed to give us

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Speaker 3: precedent that we can clearly apply. You know, last year

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Speaker 3: there was sort of open disagreement that broke out where

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Speaker 3: in another round of cases, judges were sort of not

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Speaker 3: taking the approach the Justice Department wanted, and Justice Neil

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Speaker 3: Gorsicch you know, wrote openly that they're not doing what

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Speaker 3: they're supposed to do, and then lower court judges pushed

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Speaker 3: back and bristled at Justice course such as comments in

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Speaker 3: an opinion. I mean, there's sort of this open disagreement,

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Speaker 3: which is extraordinary to see, and that kind of died

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Speaker 3: down a bit, and now again.

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Speaker 1: There's been this uptick in courts saying they just haven't

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Speaker 1: given us enough to work with.

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Speaker 2: Yeah, that was extraordinary. So the TPS program, temporary Protected

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Speaker 2: status is designed to protect immigrants whose home countries are

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Speaker 2: in crisis and let them temporarily live and work here

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Speaker 2: in the United States. So explain how lawsuits challenging the

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Speaker 2: administration's efforts to roll back TPS have become a flashpoint

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Speaker 2: in this debate about emergency orders at the Supreme Court.

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Speaker 3: So last year, the Homeland Security Secretary Christino began rolling

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Speaker 3: out announcements that they were terminating temper i protected status

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Speaker 3: for a number of countries. I think it's something like

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Speaker 3: seventeen at the start of twenty twenty five had TPS,

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Speaker 3: and to date, I think it's thirteen where GNOME has

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Speaker 3: announced they're terminating the status before it was supposed to expire,

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Speaker 3: or allowing it to expire in a way that is

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Speaker 3: being contested. And the issue that challengers say is that, yes,

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Speaker 3: you know, this is a discretion that the Secretary has

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Speaker 3: to designate a country is so dangerous, so unstable that

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Speaker 3: its citizens are able to come to the US and

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Speaker 3: get authorization to work and live here some temporary basis.

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Speaker 3: But the concern is that a she's doing it in

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Speaker 3: a way that goes far beyond the process that's supposed

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Speaker 3: to happen here, that there's administrative steps that she's not following.

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Speaker 3: The other argument and allegation is that whatever reasons this

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Speaker 3: administration is giving is actually pretextual, and that it is

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Speaker 3: because these are people from parts of the world or

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Speaker 3: people from ethnic backgrounds that this administration does not want

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Speaker 3: in the United States, and that there is a discriminatory,

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Speaker 3: a hostile purpose behind these cancelations that violates the rights

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Speaker 3: of these migrants. And we've had some judges finding that

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Speaker 3: they think the evidence does support those allegations, as well

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Speaker 3: as finding that just process wise, they've gone about this

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Speaker 3: in an unlawful way. So as terminations were announced, lawsuits

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Speaker 3: hit the docket. We've had lower courts mostly although not exclusively,

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Speaker 3: siding with challengers, granting preliminary injunctions stopping these terminations from

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Speaker 3: taking effect. Going up on appeal appeals courts often affirming

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Speaker 3: what the lower courts have done. But what's been sort

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Speaker 3: of fascinating about these cases is. There's been two times

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Speaker 3: the Supreme Court has weighed and it was in a

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Speaker 3: case involving Venezuelan's and both times they sided with the

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Speaker 3: government and said, yes, you can go ahead with what

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Speaker 3: you're trying to do here in terminating their status. And

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Speaker 3: after both of those orders, lower courts in large parts

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Speaker 3: said like, this does not apply to me.

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Speaker 1: There was no reasoning here.

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Speaker 3: Venezuela is a different country from the country that I'm

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Speaker 3: looking at, and without the justices telling me, you know,

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Speaker 3: here's the reasoning that should apply more broadly beyond the

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Speaker 3: case before us, we're not going to back off. And

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Speaker 3: so the issue is now back before the Justices, with

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Speaker 3: DOJ saying, you know, this is just a pattern of

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Speaker 3: lower courts defying the Supreme Court and the challengers arguing no,

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Speaker 3: this is the lower courts doing their job, that they're

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Speaker 3: doing exactly what they're supposed to do.

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Speaker 2: The administration asked the Court last week again an emergency

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Speaker 2: basis to end temporary protected status for Haitians, as they'd

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Speaker 2: ask the court about two weeks earlier to end temporary

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Speaker 2: protected status for Syrians, and they made an unusual request

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Speaker 2: to ask for a full court review we're doing this

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Speaker 2: on the emergency docket, but we want you to handle

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Speaker 2: this as if it was on the regular docket. Is

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Speaker 2: that very unusual.

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Speaker 3: It's quite unusual. Everything about this is quite unusual. And

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Speaker 3: what we saw was the court, at least initially this time,

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Speaker 3: saying we are not going to immediately intervene here. There

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Speaker 3: was an ask by the Justice Department to lift the

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Speaker 3: lower court rulings now while the case goes forward, which

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Speaker 3: would effectively put the Haitians and Syrians on the table

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Speaker 3: for potential detention and deportation or force them to leave

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Speaker 3: because they would lose legal status to be here unless

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Speaker 3: they had some other path that they were going to

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Speaker 3: pursue that was going to come through really quickly.

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Speaker 1: Tps' is not a path citizenship or green cards.

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Speaker 3: They can pursue those separately, but those processes take years

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Speaker 3: and the Trump administration has slowed a lot of those

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Speaker 3: systems down.

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Speaker 1: Assuming they don't have another.

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Speaker 3: Path, if they lose TPS, they could be deported, they could.

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Speaker 1: Have to leave.

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Speaker 3: So, just as has said this time, we're not going

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Speaker 3: to take that approach. We're going to hold off here

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Speaker 3: for now. But in a very unusual move, you know,

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Speaker 3: they did say, yes, we will skip the rest of

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Speaker 3: the proceedings in the Circuit court and we will take

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Speaker 3: this up on the merits. They are going to have

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Speaker 3: arguments in April. So the government got some of what

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Speaker 3: it wanted here. This is certainly fast tracking it. This

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Speaker 3: is not what the challengers wanted. They wanted to let

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Speaker 3: the circuit courts complete their process, you know, give fully

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Speaker 3: reasoned opinions.

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Speaker 1: And then if the government wanted to take this up

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Speaker 1: they could. But at a minimum, it does seem to

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Speaker 1: be the.

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Speaker 3: Court saying we are going to give you reasons here

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Speaker 3: that even if they do end up siding with the government,

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Speaker 3: they're going to do it in some ways at least

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Speaker 3: that looks more like normal process that lower courts can

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Speaker 3: then turn to to say, Okay, this is the precedent.

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Speaker 1: This is what they're telling us to do.

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Speaker 2: Coming up, two justices clash over the courts shadow docket.

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Speaker 2: This is Bloomberg. Twice last year, the Supreme Court cleared

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Speaker 2: the Trump administration to end protections for hundreds of thousands

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Speaker 2: of Venezuelan migrants fleeing violence and instability. In the months

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Speaker 2: that followed, current and former judges repeatedly called out the

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Speaker 2: justices for failing to explain their reasoning. The issue is

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Speaker 2: before the High Court again, and this time there are

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Speaker 2: signs that justices heard the criticism. They declined to immediately

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Speaker 2: intervene in two other cases involving temporary protected status, this

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Speaker 2: time for Haitians and Syrians, but the court did grant

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Speaker 2: the administration's request to leapfrog over appellate courts and fast

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Speaker 2: track arguments next month on the merits of the fight,

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Speaker 2: potentially ruling by July. I've been douking to Bloomberg Legal

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Speaker 2: reporter Zoey Tillman. Zoe, there was an unusual amikus brief

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Speaker 2: or a friend of the court brief, signed by former

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Speaker 2: state and federal judges that urged the justices to allow

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Speaker 2: the full legal process to play out in the case

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Speaker 2: involving the Syrian migrants. Do you think that influenced the justices.

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Speaker 3: The order that they handed down doesn't explain the serting

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Speaker 3: keeping with the surprize surprise, It didn't explain why they decided.

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Speaker 1: To take the approach that they did this time.

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Speaker 3: So you know, they didn't say, we heard your complaints

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Speaker 3: and so we're going to go to the merits instead

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Speaker 3: of ruling on the emergency docket. They didn't say that,

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Speaker 3: you know, so we don't know what was in their

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Speaker 3: heads that said.

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Speaker 1: What we know is what's happened.

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Speaker 3: Which is they have a record of lower courts really

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Speaker 3: talking to them through opinions saying, you need to give

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Speaker 3: us more. You know, if you want us to let

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Speaker 3: the government terminate TPS, you need to tell us why

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Speaker 3: in a way that we can apply. So there's a

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Speaker 3: record of that, and you have this friend of Court

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Speaker 3: brief signed by I think it's like more than one

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Speaker 3: hundred and seventy five former federal and state judges coming

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Speaker 3: to the defense of lower courts here and saying, you know,

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Speaker 3: it's really not fair to accuse them of doing something wrong.

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Speaker 3: You know, this is about the legitimacy of the Supreme Court.

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Speaker 3: More broadly, that if you want the public and the

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Speaker 3: rest of the courts to take seriously and respect the

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Speaker 3: work that the Supreme Court is doing, that they need

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Speaker 3: to slow down and show their work. And this past year,

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Speaker 3: I think because there's been this escalation of attacks coming

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Speaker 3: from the President directly, coming from other officials, coming from

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Speaker 3: you know, conservative allies really attacking sometimes judges by name

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Speaker 3: who have ruled against this administration making comments that question

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Speaker 3: the integrity of what the lower courts do and the

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Speaker 3: work of judges. There's been this outpouring of support coming

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Speaker 3: from former judges. Occasionally we have sitting judges speaking up,

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Speaker 3: which is, you know, one of the most extraordinary, if

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Speaker 3: we're going to make a list of extraordinary things here,

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Speaker 3: one of the most extraordinary things that we've seen. You know,

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Speaker 3: the consequences for TPS holders, for them, the stakes are

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Speaker 3: extremely high. Lawyers have talked about the dangers that they

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Speaker 3: face if they are forced to go home. So there's,

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Speaker 3: on the one hand, you know, the high human stakes

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Speaker 3: for the people involved here. I think also a lot

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Speaker 3: of people see these types of cases as high stakes

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Speaker 3: for the role the judiciary plays and the credibility and

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Speaker 3: legitimacy of the work that the courts do, and whether

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Speaker 3: they can function as a robust check on the other branches.

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Speaker 2: The challenge in the TPS case is it based on

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Speaker 2: that the Trump administration failed to follow the steps they

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Speaker 2: were supposed to, which is something that the Trump administration

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Speaker 2: is accused of in lawsuit after lawsuit, not following the

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Speaker 2: procedures right.

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Speaker 3: That is a big part of the cases that under

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Speaker 3: the Administration Procedure Act, the way that these terminations were

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Speaker 3: carried out sort of skipped over a lot of steps basically.

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Speaker 3: And there's also a constitutional due process component to these

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Speaker 3: cases in terms of just the treatment of the people

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Speaker 3: who have relied on the status and the way that

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Speaker 3: this affects their rights. This ties into some of the

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Speaker 3: like discriminatory motives that have come up as allegations in

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Speaker 3: at least some of the cases. In the Haiti case,

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Speaker 3: the judge in Washington who ruled against the government said

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Speaker 3: that the evidence seemed likely that there was this other

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Speaker 3: intent coming from Secretary Gnome in the administration. You know,

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Speaker 3: we know there was a record of President Trump making

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Speaker 3: derogatory comments about Haitians back I think during the campaign.

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Speaker 3: So I think this ties into, you know, is this

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Speaker 3: part of a sort of broader anti migrant stance by

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Speaker 3: the administration that undermines the legal discretion that they do

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Speaker 3: have to make decisions about immigration more broadly.

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Speaker 2: As you point out in your story, disagreements over these

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Speaker 2: emergency decisions by the Supreme Court have come up in

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Speaker 2: other lawsuits during this second term.

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Speaker 3: Right, you know, there have been a number of cases

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Speaker 3: now where judges have pushed back on how broadly the

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Speaker 3: Justice Department wants them to apply these emergency docket orders.

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Speaker 3: It's come up in funding cases, and the Court has

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Speaker 3: sort of had back and forth about you know, what

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Speaker 3: it means when it has sided with the administration during

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Speaker 3: the sort of wave of doge cuts early on how

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Speaker 3: much to read into that. There was back and forth

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Speaker 3: about this issue of third country deportations and the administration's

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Speaker 3: ability to send people to countries that are not their

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Speaker 3: home countries, and there's been an immigration court order saying

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Speaker 3: you know, it's too dangerous to send this person to

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Speaker 3: their home country. The government's ability to say, okay, well,

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Speaker 3: this other country they have.

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Speaker 1: No connection to is willing to take them.

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Speaker 3: And there was some back and forth about how judges

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Speaker 3: were continuing to block the administration after the Supreme Court

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Speaker 3: handed down sort of early wins for the government. So

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Speaker 3: I think, you know, it's to the extent that lower

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Speaker 3: courts continue to block this administration on whatever the issue is.

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Speaker 3: They're not taking everything up to the justices. But I

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Speaker 3: think what we've seen as a pattern of if it's

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Speaker 3: about you know, money that has to go out the door,

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Speaker 3: people officials, employees that they want to immediately fire, migrants

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Speaker 3: that they want to put on planes. Now, those are

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Speaker 3: the types of cases where they have opted to try

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Speaker 3: and take this emergency path.

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Speaker 2: And so we should also point out that the emergency

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Speaker 2: orders are designed to be in place while the litigation

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Speaker 2: plays out. But as you know, it can take years

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Speaker 2: for litigation to play out, So that means that these

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Speaker 2: orders are in place for years. And sometimes that's determinative.

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Speaker 1: Right, you know.

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Speaker 3: I think to the extent it means, you know, a

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Speaker 3: person can be fired even if they win down the

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Speaker 3: road in some lower court proceeding. You know, the harm

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Speaker 3: when we talk about a reparable harm, it's been done.

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Speaker 3: If someone's been deported, even if they prevail later on,

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Speaker 3: it's not clear you know that they have to be

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Speaker 3: brought back to the United States. That there are sort

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Speaker 3: of consequences, real world consequences of these emergency orders, even

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Speaker 3: if within the context of the judiciary everyone says, you know,

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Speaker 3: this is not a final determination of the merits. So,

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Speaker 3: you know, I think courts have moved really quickly since

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Speaker 3: Trump came back to office, and we've seen I think

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Speaker 3: the GPS cases are also really interest because things moved

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Speaker 3: fast after the Supreme Court sent back the Venezuela case,

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Speaker 3: and the lower court, even in that case, looked at

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Speaker 3: the Supreme Court's emergency order the first time and said,

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Speaker 3: we're going to give it a merits analysis now, and

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Speaker 3: we still think that what the government is doing is unlawful,

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Speaker 3: so we're going to essentially block it again, and that's

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Speaker 3: why it went back up to the Supreme Court. So

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Speaker 3: things are unfolding on a pretty fast basis. But it's

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Speaker 3: a reminder that you know, when something happens on an

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Speaker 3: emergency docket or we get so called, you know, shadow

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Speaker 3: docket order, it doesn't always end the proceedings and there

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Speaker 3: can be these future rounds. It's just a question of

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Speaker 3: how much can the toothpaste be put back in the

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Speaker 3: tube weeks or months or years later.

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Speaker 2: And not only is this being mentioned in lower court

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Speaker 2: orders appellate court decisions, but also two justices to Donjie

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Speaker 2: Brown Jackson and Brett Havanaw discussed their very different views

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Speaker 2: on these emergency orders at a public event last week.

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Speaker 3: Yes, and I mean in writing, the liberal justices have really,

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Speaker 3: in very strong language, denounced the extent to which the

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Speaker 3: conservative majority has sided with the government in these emergency cases.

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Speaker 1: And yeah, there was.

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Speaker 3: This sort of incredible timing of an event where Justice

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Speaker 3: Cavanaugh and Justice Jackson were appearing for a talk in

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Speaker 3: Washington and had some back and forth about this, where

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Speaker 3: Justice Jackson said, you know that this was creating. I

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Speaker 3: think the quote was a warped kind of proceeding by

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Speaker 3: acting really fast based on a preliminary assessment of the issues.

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Speaker 3: You know, no one is thinking that they've given it

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Speaker 3: all the thought they could when.

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Speaker 1: They're ruling in a matter of days or even weeks.

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Speaker 3: And then Justice Kavanaugh came back and said, you know,

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Speaker 3: I think there's a short memory here where folks making

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Speaker 3: these critiques forget that we also intervened for the Biden administration.

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Speaker 3: You know, it's not a partisan issue, but certainly numerically,

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Speaker 3: this court and this conservative majority has sided with this

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Speaker 3: conservative administration many times over, and these orders have been

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Speaker 3: ideologically split. I think the other sort of dynamic to

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Speaker 3: note here is that there are instances where what the

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Speaker 3: Court is intervening to do is to endorse a change

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Speaker 3: that the Trump administration has made to.

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Speaker 1: The status quo, as opposed.

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Speaker 3: To acting on an emergency basis to preserve what was

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Speaker 3: the status quo before whatever the challenged action was.

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Speaker 1: So the question of like, is their.

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Speaker 3: Job to you know, put a thumb on the scale

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Speaker 3: for the status quo before whatever you know, contested action happened,

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Speaker 3: or you know, when they do it to a doors

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Speaker 3: the change is that sort of weighing in more heavily

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Speaker 3: on the merits than they're supposed to at this stage.

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Speaker 2: And also, I mean, the number of emergency requests in

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Speaker 2: just this beginning of the Trump administration exceeds, far exceeds

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Speaker 2: all those in the four years of the Biden administration.

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Speaker 3: Yes, and I mean they're on track to outpace Trump

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Speaker 3: one in Trump two at this rate. I think it

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Speaker 3: was what if you have forty one emergency requests that

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Speaker 3: the Justice Department in the first Trump administration filed in

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Speaker 3: the entirety of those four years, and we're at thirty

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Speaker 3: three in year one. So if the pace keeps up

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Speaker 3: like this, that total number at the end of four

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Speaker 3: years will be much higher than what it was.

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Speaker 2: Not to mention there were only three emergency requests during

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Speaker 2: the eight years of the Barack Obama administration and only

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Speaker 2: five during the eight years of the George W. Bush administration,

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Speaker 2: So exponential growth in the shadow docket. Thanks so much, Zoe.

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Speaker 2: That's Bloomberg Legal reporter Zoe Tillman coming up next on

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Speaker 2: the Bloomberg Law Show. The Trump administration has been pushing

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Speaker 2: the unitary executive theory, but now federal trial judges are

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Speaker 2: using the theory against the administration in immigration cases. I'm

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Speaker 2: June Grosso and you're listening to Bloomberg. The Trump administration

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Speaker 2: has been testing the boundaries of the unitary executive theory,

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Speaker 2: pushing the Supreme Court to embrace the theory as it

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Speaker 2: tries to expand President Trump's powers. The theory argues that

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Speaker 2: the Constitution vests all executive power in the president. However,

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Speaker 2: some federal judges have been using the unitary executive theory

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Speaker 2: against the administration in its immigration crackdown. Joining me is

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Speaker 2: Bloomberg Law. Supreme Court reporter Justin Wise. Justin tell us

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Speaker 2: about the unitary executive theory.

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Speaker 4: So, the unitary executive theory is rooted in the vesting

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Speaker 4: clause of Article two of the Constitution, which says the

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Speaker 4: executive power shall be vested in the president of the

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Speaker 4: United States. This theory essentially takes that and says that

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Speaker 4: those working in the executive branch are accountable to the president.

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Speaker 4: The issue is most apparent in Trump's wave of firings

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Speaker 4: of federal government officials, including leaders at agencies who Congress

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Speaker 4: insulated by law in an effort to keep it free

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Speaker 4: of political influence. But as you can see, the logic

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Speaker 4: of this theory goes further, and it can perhaps undercut

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Speaker 4: the notion of us spread out bureaucracy with various responsibilities

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Speaker 4: and structures. By the logic of this theory, it would

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Speaker 4: say that every official is accountable to the president.

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Speaker 2: And has the Trump administration specifically been pushing this theory

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Speaker 2: at the Supreme Court?

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Speaker 4: Yes, they have. In the instance of the firing of

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Speaker 4: certain leaders of independent agencies, they have argued that some

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Speaker 4: of these leaders, such as that the Federal Trade Commission,

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Speaker 4: who by law are proticted from at will removal by

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Speaker 4: the president, that those protections are unconstitutional because they exercise

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Speaker 4: executive responsibilities and therefore must be accountable to the president,

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Speaker 4: and the president therefore should have the legal authority to

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Speaker 4: fire them as he pleases.

441
00:26:29,920 --> 00:26:34,040
Speaker 2: Tell us what's been happening in the lower courts. You know,

442
00:26:34,119 --> 00:26:39,400
Speaker 2: when the Justice Department lawyers are arguing in courts, specifically

443
00:26:39,920 --> 00:26:42,080
Speaker 2: in immigration cases.

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00:26:42,440 --> 00:26:45,240
Speaker 4: We're kind of seeing how this logic plays out beyond

445
00:26:45,480 --> 00:26:48,560
Speaker 4: the presidential firing cases, like as we've seen, the administration

446
00:26:48,640 --> 00:26:51,240
Speaker 4: has made some of these arguments at the Supreme Court,

447
00:26:51,320 --> 00:26:53,920
Speaker 4: but we're also seeing that this logic goes a lot further.

448
00:26:54,200 --> 00:26:57,040
Speaker 4: It can perhaps, you know, sort of eliminate this notion

449
00:26:57,080 --> 00:26:59,639
Speaker 4: of a spread out bureaucracy with a lot of different

450
00:26:59,680 --> 00:27:04,560
Speaker 4: respect possibilities and various communications systems, you know. In one instance,

451
00:27:04,800 --> 00:27:07,800
Speaker 4: a DOJ lawyer in Minneapolis told a judge that it

452
00:27:07,920 --> 00:27:10,919
Speaker 4: was like quote pulling teeth to get instities within the

453
00:27:10,920 --> 00:27:14,560
Speaker 4: Department of Homeland Security to comply with court orders. But

454
00:27:14,600 --> 00:27:17,440
Speaker 4: that judge had a really interesting response. They had said,

455
00:27:17,600 --> 00:27:21,400
Speaker 4: and quote, I wholeheartedly embraced the notion of a unitary

456
00:27:21,440 --> 00:27:25,760
Speaker 4: executive as in DHS ice, the DOJ all are a

457
00:27:25,800 --> 00:27:28,280
Speaker 4: part of the executive branch, and if there's a problem

458
00:27:28,440 --> 00:27:30,760
Speaker 4: in the restaurant, I don't intend to go in the

459
00:27:30,880 --> 00:27:33,119
Speaker 4: kitchen to try to figure out who makes the thread.

460
00:27:33,440 --> 00:27:35,560
Speaker 4: And he was kind of getting at this idea that

461
00:27:35,640 --> 00:27:39,240
Speaker 4: it's not an excuse to tell me you contacted an agency,

462
00:27:39,480 --> 00:27:42,800
Speaker 4: because that agency is also a part of this unitary

463
00:27:42,880 --> 00:27:46,600
Speaker 4: executive and that's not enough when I'm looking at who

464
00:27:46,640 --> 00:27:48,920
Speaker 4: needs to be held accountable, and.

465
00:27:48,840 --> 00:27:52,560
Speaker 2: It's the judges who are bringing up the unitary executive theory.

466
00:27:52,600 --> 00:27:57,119
Speaker 2: It's not being suggested by the opposition.

467
00:27:57,080 --> 00:28:00,199
Speaker 4: No, it's being raised by these judges in response to

468
00:28:00,240 --> 00:28:03,760
Speaker 4: some of these representations that have been made by the

469
00:28:03,880 --> 00:28:06,439
Speaker 4: Justice Department in some of these cases that are tied

470
00:28:06,480 --> 00:28:10,880
Speaker 4: to the administration's immigration crackdown. Another example is in which

471
00:28:11,520 --> 00:28:15,520
Speaker 4: the Justice Department had made this argument that the DHS

472
00:28:15,640 --> 00:28:18,639
Speaker 4: in a particular case was not their client, that we

473
00:28:18,720 --> 00:28:21,000
Speaker 4: can't tell DHS what to do and they can't tell

474
00:28:21,080 --> 00:28:23,480
Speaker 4: us what to do. A judge had responded to that

475
00:28:23,520 --> 00:28:25,440
Speaker 4: by basically saying, you know, I'm not going to really

476
00:28:25,520 --> 00:28:28,560
Speaker 4: dive into that representation, but what I will note is

477
00:28:28,800 --> 00:28:32,119
Speaker 4: this unitary executive theory, kind of pointing out that the

478
00:28:32,560 --> 00:28:35,560
Speaker 4: assertion they were making actually could be undercut by this

479
00:28:35,720 --> 00:28:38,240
Speaker 4: by this theory the administration is making. At the same.

480
00:28:38,000 --> 00:28:43,720
Speaker 2: Time, particularly in this Trump administration, we've seen so many

481
00:28:43,760 --> 00:28:49,440
Speaker 2: cases of lawyers Justice Department lawyers going to hearings and

482
00:28:49,520 --> 00:28:53,160
Speaker 2: not being properly informed about the facts, and you know,

483
00:28:53,200 --> 00:28:58,080
Speaker 2: as you mentioned, not being able to get agencies to

484
00:28:58,200 --> 00:29:01,600
Speaker 2: do what the courts say. And there was that famous

485
00:29:01,640 --> 00:29:05,760
Speaker 2: incident of a government lawyer saying, the system sucks, This

486
00:29:05,960 --> 00:29:10,920
Speaker 2: job sucks. The government lawyer is actually arguing these cases

487
00:29:11,080 --> 00:29:15,320
Speaker 2: before judges in the federal courts are really being put

488
00:29:15,360 --> 00:29:16,560
Speaker 2: in a difficult position.

489
00:29:17,360 --> 00:29:17,600
Speaker 1: Yeah.

490
00:29:17,640 --> 00:29:20,760
Speaker 4: I think it speaks to kind of the capacity of

491
00:29:20,880 --> 00:29:24,720
Speaker 4: the broader administration and whether some of the orders that

492
00:29:24,880 --> 00:29:28,880
Speaker 4: have been implemented, you know that the structures in place

493
00:29:28,920 --> 00:29:32,080
Speaker 4: are adequate enough to take on some of these massive

494
00:29:32,160 --> 00:29:36,480
Speaker 4: undertakings that the administration wants to undertake. And then with

495
00:29:36,520 --> 00:29:40,280
Speaker 4: respect to going into court, there are a number of orders.

496
00:29:40,320 --> 00:29:43,640
Speaker 4: In the instance you mentioned that was actually in the

497
00:29:43,680 --> 00:29:47,920
Speaker 4: same hearing where a judge had noted the unitary executive

498
00:29:48,120 --> 00:29:50,680
Speaker 4: and kind of had noted to this lawyer who was

499
00:29:51,000 --> 00:29:54,200
Speaker 4: kind of making an admission that the system was inadequate

500
00:29:54,240 --> 00:29:58,080
Speaker 4: at this juncture to comply with court orders. That judge

501
00:29:58,160 --> 00:30:02,280
Speaker 4: had responded in kind mentioning unitary executives, saying that it's

502
00:30:02,320 --> 00:30:06,000
Speaker 4: the unitary executive's responsibility in this case. I think what

503
00:30:06,080 --> 00:30:08,200
Speaker 4: we're seeing here too, is, as I talked to some

504
00:30:08,320 --> 00:30:10,920
Speaker 4: legal experts, is that if the judges are feeling that

505
00:30:10,960 --> 00:30:14,600
Speaker 4: they're not getting adequate responses from these Justice Department lawyers

506
00:30:14,640 --> 00:30:18,120
Speaker 4: in their court, that they may start ordering high ranking

507
00:30:18,120 --> 00:30:22,040
Speaker 4: immigration officials to appear in federal court. As what happens

508
00:30:22,080 --> 00:30:24,880
Speaker 4: in a lot of these cases, the Justice Department sort

509
00:30:24,880 --> 00:30:27,400
Speaker 4: of functions as the law firm of the federal government.

510
00:30:27,440 --> 00:30:31,160
Speaker 4: If the DHS is facing an order or a lawsuit,

511
00:30:31,280 --> 00:30:34,520
Speaker 4: the Justice Department is representing them in court and they

512
00:30:34,520 --> 00:30:39,160
Speaker 4: are making appearances on their behalf. Well. If the judges

513
00:30:39,200 --> 00:30:42,320
Speaker 4: feel like they're not getting adequate or sufficient answers to

514
00:30:42,360 --> 00:30:45,920
Speaker 4: their questions, the next step could be ordering some of

515
00:30:45,960 --> 00:30:49,640
Speaker 4: these officials from these agencies to appear in their court right.

516
00:30:49,640 --> 00:30:52,840
Speaker 2: And there's been one instance of that already where a

517
00:30:52,880 --> 00:30:59,080
Speaker 2: federal judge in Chicago ordered Border Patrol Commander Greg Beveno

518
00:30:59,640 --> 00:31:03,880
Speaker 2: to heer in court regarding the use of force, including

519
00:31:04,000 --> 00:31:10,160
Speaker 2: tear gas, during the Operation Midway Blitz in Chicago. So

520
00:31:10,240 --> 00:31:13,719
Speaker 2: something like that might happen more often in the future. Also,

521
00:31:13,920 --> 00:31:18,160
Speaker 2: in the past, the Justice Department has been seen as

522
00:31:18,200 --> 00:31:21,200
Speaker 2: a separate entity from the White House. There's been a

523
00:31:21,240 --> 00:31:26,760
Speaker 2: sort of independence, but with the Trump administration, that separation

524
00:31:27,520 --> 00:31:32,320
Speaker 2: seems to be dissolving or completely gone right.

525
00:31:32,400 --> 00:31:35,040
Speaker 4: And I think with respect to the conversation we're having

526
00:31:35,080 --> 00:31:37,800
Speaker 4: about the unitary executive theory, I think it's completely gone

527
00:31:37,880 --> 00:31:40,880
Speaker 4: under this theory that the Attorney General and the Justice

528
00:31:40,880 --> 00:31:43,520
Speaker 4: Department is accountable to the president and that they are

529
00:31:43,720 --> 00:31:46,320
Speaker 4: to implement the orders of the president. I think they

530
00:31:46,360 --> 00:31:49,080
Speaker 4: have been the most explicit in terms of, you know,

531
00:31:49,240 --> 00:31:52,960
Speaker 4: saying that they're the president's lawyers and making assertions such

532
00:31:53,000 --> 00:31:56,080
Speaker 4: as that that really no other administration has.

533
00:31:56,360 --> 00:31:59,200
Speaker 2: And you talk to someone who said, the next issue

534
00:31:59,760 --> 00:32:03,160
Speaker 2: to come up might have to do with immigration judges.

535
00:32:03,680 --> 00:32:07,880
Speaker 4: Yes, So that's really interesting because that's that's a similar

536
00:32:08,280 --> 00:32:12,520
Speaker 4: sort of dynamic with the Justice Department. Immigration judges are

537
00:32:12,640 --> 00:32:16,880
Speaker 4: within an office actually within the Justice Department, so they're

538
00:32:16,960 --> 00:32:21,040
Speaker 4: under the executive branch, but they've traditionally been fairly insulated

539
00:32:21,120 --> 00:32:24,840
Speaker 4: from presidential pressure. But the next issue to come up,

540
00:32:25,280 --> 00:32:28,280
Speaker 4: as we see the administration pushed to overall the immigration

541
00:32:28,400 --> 00:32:32,480
Speaker 4: court system and a point what they've termed deportation judges

542
00:32:32,720 --> 00:32:35,840
Speaker 4: sort of might erase the idea that some of these

543
00:32:35,920 --> 00:32:38,680
Speaker 4: judges are neutral arbiters, or at least, you know, give

544
00:32:38,760 --> 00:32:41,760
Speaker 4: rise to the question of how neutral these judges are.

545
00:32:42,640 --> 00:32:45,440
Speaker 4: And so The point that a lawyer had made to

546
00:32:45,480 --> 00:32:48,440
Speaker 4: me is that defense advocates are likely to argue these

547
00:32:48,520 --> 00:32:52,000
Speaker 4: judges are less independent than they've ever been and could

548
00:32:52,080 --> 00:32:55,360
Speaker 4: put more scrutiny on maybe some of the warrants or

549
00:32:55,400 --> 00:32:59,400
Speaker 4: decisions that they're issuing. If they are appealed, Y're challenged

550
00:32:59,440 --> 00:33:00,840
Speaker 4: in the federal system.

551
00:33:01,200 --> 00:33:04,840
Speaker 2: Yeah, calling them deportation judges is not exactly the look

552
00:33:04,920 --> 00:33:07,920
Speaker 2: that you would expect from a judge who's supposed to

553
00:33:07,920 --> 00:33:11,440
Speaker 2: be unbiased. Thanks so much for joining me, Justin. That's

554
00:33:11,440 --> 00:33:15,800
Speaker 2: Bloomberg Law Supreme Court reporter Justin Wise, and that's it

555
00:33:15,840 --> 00:33:18,440
Speaker 2: for this edition of the Bloomberg Law Show. Remember you

556
00:33:18,440 --> 00:33:20,920
Speaker 2: can always get the latest legal news on our Bloomberg

557
00:33:21,040 --> 00:33:24,640
Speaker 2: Law podcast. You can find them on Apple Podcasts, Spotify,

558
00:33:24,840 --> 00:33:29,880
Speaker 2: and at www dot Bloomberg dot com, slash podcast slash Law,

559
00:33:30,280 --> 00:33:32,840
Speaker 2: and remember to tune into The Bloomberg Law Show every

560
00:33:32,920 --> 00:33:36,800
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,

561
00:33:36,960 --> 00:33:38,560
Speaker 2: and you're listening to Bloomberg