1
00:00:03,480 --> 00:00:07,560
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,640 --> 00:00:10,440
Speaker 1: day we bring you insight and analysis into the most

3
00:00:10,480 --> 00:00:13,399
Speaker 1: important legal news of the day. You can find more

4
00:00:13,480 --> 00:00:18,040
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

5
00:00:18,320 --> 00:00:22,479
Speaker 1: and on Bloomberg dot com slash podcasts. President Trump is

6
00:00:22,560 --> 00:00:25,160
Speaker 1: making a move to limit the power of federal judges

7
00:00:25,280 --> 00:00:28,920
Speaker 1: by starting a legal battle over district judges authority to

8
00:00:29,000 --> 00:00:33,599
Speaker 1: issue nationwide injunctions. At a speech to the Conservative Federalist

9
00:00:33,600 --> 00:00:37,120
Speaker 1: Society last week, Vice President Mike Penn said the administration

10
00:00:37,200 --> 00:00:40,199
Speaker 1: will take the issue to the Supreme Court. For the

11
00:00:40,200 --> 00:00:45,040
Speaker 1: sake of our liberty, our security, our prosperity, and the

12
00:00:45,080 --> 00:00:50,320
Speaker 1: separation of powers. This era of judicial activism must come

13
00:00:50,520 --> 00:00:54,040
Speaker 1: to an end. Joining me as Josh Blackman, a professor

14
00:00:54,080 --> 00:00:58,520
Speaker 1: at South Texas College of Law, Josh Vice President Pence

15
00:00:58,600 --> 00:01:03,000
Speaker 1: also said district cores have imposed more nationwide injunctions against

16
00:01:03,080 --> 00:01:07,400
Speaker 1: President Trump than the first forty presidents combined. He sees

17
00:01:07,440 --> 00:01:10,679
Speaker 1: this as a restraint on the President's power by another

18
00:01:10,720 --> 00:01:15,399
Speaker 1: branch of government. How do you say it, Well, let's

19
00:01:15,400 --> 00:01:19,360
Speaker 1: figure look at this. Nationwide injunctions are in new. In fact,

20
00:01:19,400 --> 00:01:23,000
Speaker 1: they were often used by conservative states against the Obama

21
00:01:23,040 --> 00:01:26,240
Speaker 1: administration over the last eight years. Um, what I think

22
00:01:26,319 --> 00:01:29,560
Speaker 1: is new is the frequency with which these injunctions are issued.

23
00:01:30,280 --> 00:01:34,960
Speaker 1: Virtually every policy that President Trump is issued hasn't challenge

24
00:01:35,000 --> 00:01:38,400
Speaker 1: in one court or another. And these courts of issue

25
00:01:38,440 --> 00:01:40,759
Speaker 1: these injunctions have blocked them on a on a really

26
00:01:40,760 --> 00:01:44,479
Speaker 1: global basis. Um. Now, now Vice President ten said, will

27
00:01:44,520 --> 00:01:47,640
Speaker 1: take this to Supreme Court. They've tried several times. It's

28
00:01:47,640 --> 00:01:50,200
Speaker 1: not like something new. Uh, And the stream court hasn't

29
00:01:50,240 --> 00:01:53,720
Speaker 1: had an opportunity to weigh in without questioning. Sorts of

30
00:01:53,760 --> 00:01:58,800
Speaker 1: broad injunctions have a frustrated President Trump at almost every

31
00:01:58,840 --> 00:02:02,600
Speaker 1: juncture of his presidency. Now, is there a strong legal

32
00:02:02,640 --> 00:02:09,200
Speaker 1: precedent for this use of nationwide injunctions? Well, let's be careful.

33
00:02:09,240 --> 00:02:12,280
Speaker 1: The terminology is a little bit loose, right. Usually when

34
00:02:12,320 --> 00:02:15,440
Speaker 1: you go to court at X suse Y, the courts

35
00:02:15,520 --> 00:02:18,720
Speaker 1: judgment only binds X and Y. The reason why these

36
00:02:18,760 --> 00:02:21,640
Speaker 1: judgments are different is that they don't only bind X

37
00:02:21,680 --> 00:02:24,400
Speaker 1: and Y. They bind A, B, C, D, E, F

38
00:02:24,520 --> 00:02:29,119
Speaker 1: G parties who are not active in the case. Um,

39
00:02:29,160 --> 00:02:32,080
Speaker 1: there's no clear reason why courts can do it. The

40
00:02:32,160 --> 00:02:34,760
Speaker 1: rules don't actually say they can do it. Courts of

41
00:02:34,800 --> 00:02:38,000
Speaker 1: Surger has done it, and they've gotten away with it. UM.

42
00:02:38,040 --> 00:02:40,639
Speaker 1: So I think one of two things will happen. UM One,

43
00:02:40,760 --> 00:02:44,320
Speaker 1: the Supreme Court will not eliminate these nationwide injunctions, but

44
00:02:44,400 --> 00:02:47,000
Speaker 1: maybe scale them back and explain when they're appropriate and

45
00:02:47,040 --> 00:02:49,760
Speaker 1: when they're not. UM. The other options that Congress can

46
00:02:49,760 --> 00:02:53,000
Speaker 1: get involved and Congress can use its rulemaking power to

47
00:02:53,080 --> 00:02:55,600
Speaker 1: limit the scope of these broad injunctions, and either of

48
00:02:55,639 --> 00:02:59,080
Speaker 1: these routes be far more desirable to the current regime

49
00:02:59,080 --> 00:03:02,119
Speaker 1: where courts issued I'm in an ad hoc random basis.

50
00:03:03,440 --> 00:03:08,360
Speaker 1: In a recent decision, Justice Clarence Thomas criticized nationwide injunctions,

51
00:03:08,400 --> 00:03:12,120
Speaker 1: saying they prevent legal questions from percolating through the federal courts,

52
00:03:12,720 --> 00:03:17,839
Speaker 1: encourage forum shopping, among other things. What's your answer to that?

53
00:03:19,480 --> 00:03:22,280
Speaker 1: Do you agree with him Thomas? I think Josice Thomas

54
00:03:22,360 --> 00:03:27,200
Speaker 1: raises very important concerns about these nationwide injunctions. The power

55
00:03:27,240 --> 00:03:29,840
Speaker 1: of record is generally the power to resolved a specific

56
00:03:29,880 --> 00:03:33,360
Speaker 1: dispute between two people in two parties. They don't usually

57
00:03:33,360 --> 00:03:36,120
Speaker 1: have the power to dragon anyone else around the world

58
00:03:36,640 --> 00:03:39,120
Speaker 1: to benefit from those So the minimum I think that

59
00:03:39,160 --> 00:03:43,080
Speaker 1: the Court eats. A last addressed Justice Thomas's concerns. Explain

60
00:03:43,160 --> 00:03:47,440
Speaker 1: when these sorts of injunctions are appropriate when they're inappropriate. Now,

61
00:03:47,720 --> 00:03:50,360
Speaker 1: Penn said that the Trump administration is going to be

62
00:03:50,400 --> 00:03:53,800
Speaker 1: seeking opportunities to put this question before the Supreme Court,

63
00:03:54,120 --> 00:03:57,360
Speaker 1: and Axios reports the Justice Department will begin looking for

64
00:03:57,440 --> 00:04:00,840
Speaker 1: potential injunctions to appeal to the super in court. But

65
00:04:01,000 --> 00:04:05,200
Speaker 1: as you mentioned, the Trump administration has failed several times

66
00:04:05,200 --> 00:04:09,160
Speaker 1: to get the court to move on this. What would

67
00:04:09,360 --> 00:04:13,480
Speaker 1: move the justices to act? Well, there are some cases

68
00:04:13,520 --> 00:04:16,200
Speaker 1: I think are better suited to resolve this issue. So,

69
00:04:16,279 --> 00:04:19,520
Speaker 1: for example, let's take the issue of sanctuary cities. Right,

70
00:04:19,560 --> 00:04:23,480
Speaker 1: there are some cities that have policies that provides certain

71
00:04:23,480 --> 00:04:26,800
Speaker 1: protections to their immigrants, and the Trump administration has said

72
00:04:26,800 --> 00:04:29,320
Speaker 1: that if you have these sanctuary policies, we will withhold

73
00:04:29,920 --> 00:04:32,159
Speaker 1: certain types of federal funding. Now, this is a dispute

74
00:04:32,160 --> 00:04:36,159
Speaker 1: between the city of Chicago and the federal government. Right, Yet,

75
00:04:36,240 --> 00:04:39,279
Speaker 1: at least one judge made that injunction nationwide. He said

76
00:04:39,320 --> 00:04:43,920
Speaker 1: that all sanctuaries deduce nationwide, UH cannot have funding withheld.

77
00:04:44,279 --> 00:04:46,839
Speaker 1: That's a good vehicle, right, when you have a city

78
00:04:47,040 --> 00:04:49,920
Speaker 1: suing for a specific policy, there's no reason to make

79
00:04:49,960 --> 00:04:52,640
Speaker 1: other cities subject to that injunction. So I think that

80
00:04:52,680 --> 00:04:54,520
Speaker 1: there are some cases that it may actually be a

81
00:04:54,560 --> 00:04:56,640
Speaker 1: good good vehicle, as we say in a lingual, a

82
00:04:56,640 --> 00:05:00,240
Speaker 1: good vehicle after the courts resolve these issues. So I

83
00:05:00,240 --> 00:05:03,080
Speaker 1: think d J smart, they're thinking it through, and then

84
00:05:03,120 --> 00:05:06,040
Speaker 1: sooner or later the Justice will take one of these

85
00:05:06,120 --> 00:05:08,360
Speaker 1: nation wide injunctions and perhaps scale them back a bit.

86
00:05:09,279 --> 00:05:13,240
Speaker 1: Where does the weight of legal authority rest as far

87
00:05:13,279 --> 00:05:16,479
Speaker 1: as these injunctions? Because I've seen, you know, professors and

88
00:05:16,560 --> 00:05:21,080
Speaker 1: legal experts on both sides of the issue. You know, Look,

89
00:05:21,160 --> 00:05:24,600
Speaker 1: there's a debate, and I'll be candidate at this I

90
00:05:24,600 --> 00:05:26,920
Speaker 1: I don't know that there's a clear answer one way

91
00:05:26,960 --> 00:05:29,920
Speaker 1: or the other. Uh, there's nothing that authorizes them. But

92
00:05:30,000 --> 00:05:32,800
Speaker 1: courts been doing that for some time, which is why

93
00:05:32,839 --> 00:05:35,560
Speaker 1: you need some clarity from the Supreme Court or from Congress.

94
00:05:35,640 --> 00:05:39,280
Speaker 1: But how to go about doing these um, there's no

95
00:05:39,360 --> 00:05:41,840
Speaker 1: there's no easy way to resolve these matters. And I

96
00:05:41,880 --> 00:05:45,320
Speaker 1: think it's really a bipartisan fashion. When President Obama was

97
00:05:45,320 --> 00:05:49,680
Speaker 1: in office, you had a conservative states seeking nation wide injunctions,

98
00:05:49,800 --> 00:05:52,960
Speaker 1: and now when President Trump's office, you have a liberal

99
00:05:53,000 --> 00:05:57,080
Speaker 1: states seeking injunctions against the president. So it's both sorry,

100
00:05:57,400 --> 00:05:59,880
Speaker 1: both sides complain about them when they're out of power,

101
00:06:00,440 --> 00:06:02,200
Speaker 1: but when they're empower the they sort of love. These

102
00:06:02,200 --> 00:06:07,840
Speaker 1: injunctions are very helpful. Yeah, Now, on a broad scale,

103
00:06:08,000 --> 00:06:11,120
Speaker 1: does President Trump seem to be pushing every issue to

104
00:06:11,240 --> 00:06:15,080
Speaker 1: the Supreme Court? Is saying, well, whatever happens, the Supreme

105
00:06:15,080 --> 00:06:17,760
Speaker 1: Court will decide. Is there too much on the Supreme

106
00:06:17,800 --> 00:06:21,599
Speaker 1: Court's plate at this point? Um, there's a lot on

107
00:06:21,640 --> 00:06:23,960
Speaker 1: the Spreme courts plate, and the ll even more next year,

108
00:06:24,040 --> 00:06:27,520
Speaker 1: right before the election. One of the attributes of a

109
00:06:27,600 --> 00:06:30,640
Speaker 1: nation wide injunction is it does not allow cases sort

110
00:06:30,640 --> 00:06:32,760
Speaker 1: of simmer in the lower courts for some months at

111
00:06:32,760 --> 00:06:36,159
Speaker 1: a time. Um. The second a lower court, a trial

112
00:06:36,200 --> 00:06:39,400
Speaker 1: court enters a nach wide injunction, there's this frantic race

113
00:06:39,440 --> 00:06:41,120
Speaker 1: to the U. S. Supreme Court to get it resolved

114
00:06:41,120 --> 00:06:44,360
Speaker 1: as quickly as possible. One of the biproducts nach wide

115
00:06:44,360 --> 00:06:47,800
Speaker 1: injunction is that the justices have to get involved earlier,

116
00:06:47,880 --> 00:06:50,720
Speaker 1: and they would usually like to get involved. Um. So

117
00:06:50,760 --> 00:06:53,080
Speaker 1: I think that's one reason why the justices may scale

118
00:06:53,120 --> 00:06:55,880
Speaker 1: back to the wide injunctions. All Right, thanks so much

119
00:06:55,960 --> 00:06:59,000
Speaker 1: for your insights. That's Josh Blackman. He's a professor at

120
00:06:59,400 --> 00:07:04,159
Speaker 1: self check says College of Law. Thanks for listening to

121
00:07:04,160 --> 00:07:07,479
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

122
00:07:07,520 --> 00:07:11,240
Speaker 1: the show on Apple Podcasts, SoundCloud, and on bloomberg dot

123
00:07:11,280 --> 00:07:15,800
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg