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

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Speaker 2: The Trump administration is facing more than one hundred and

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Speaker 2: fifty cases across the country challenging its actions, and many

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Speaker 2: of the cases involve actions by Elon Musk and DOGE,

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Speaker 2: which has moved swiftly to fire tens of thousands of

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Speaker 2: federal workers, cancel Granson contracts, and generally dismantle the federal government.

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Speaker 2: The administration has contended in court that Musk isn't the

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Speaker 2: head of DOGE and doesn't have authority to make decisions

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Speaker 2: at agencies. But remember when President Trump gave a shout

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Speaker 2: out to Musk during his joint address to Congress this month, I.

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Speaker 1: Have created the brand new Department of Government Efficiency Dog.

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Speaker 1: Perhaps you've heard of it. Perhaps Rich is headed by

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Speaker 1: Elon must poison the gallery.

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Speaker 2: Tonight, Well, Federal Judge Theodore Schwanng remembers and cited that

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Speaker 2: in the first major ruling to find that Musk likely

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Speaker 2: exercised unconstitutional power in orchestrating the Trump administration's efforts to

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Speaker 2: shutter the US Agency for International Development. Joining me is

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Speaker 2: constitutional law expert Michael Dorf, a professor at Cornell Law School, Mike.

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Speaker 2: USAID was the first agency that Musk took his chainsaw

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Speaker 2: to remind us what happened.

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Speaker 1: Musk and the Dose people went into USAID and they

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Speaker 1: canceled a very large percentage of the contracts that USAID

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Speaker 1: had with partner organizations throughout the world. They also displaced

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Speaker 1: the existing leadership and Secretary of State Marco Rubio assumed

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Speaker 1: control of USAID, and they gutted the staff so that

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Speaker 1: a great many people were placed either on leave or

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Speaker 1: outright fired with very little time to adjust. Us also

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Speaker 1: actually tweeted that USAID was effectively dead right, So this

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Speaker 1: was an effort by those who essentially kill an agency

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Speaker 1: created by Congress.

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Speaker 2: The judge found that Musk and his team likely violate

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Speaker 2: the Constitution in multiple ways. Let's talk first about the

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Speaker 2: appointment's clause issue. Explaining the appointments clause issue.

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Speaker 1: The Constitution sets out how officers of the United States

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Speaker 1: are appointed, so called principal officers, who are people who

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Speaker 1: have a whole lot of responsibility. So think about a

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Speaker 1: cabinet level secretary must be nominated by the President and

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Speaker 1: it's confirmed by the Senate. There are also what the

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Speaker 1: Constitution calls inferior officers who exercise considerable power, but under

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Speaker 1: the supervision of a prince officer, and they can also

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Speaker 1: be appointed via that same mechanism of presidential nomination and

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Speaker 1: Senate confirmation. But the Constitution says that alternatively, for an

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Speaker 1: inferior officer, Congress confessed the authority to make appointments either

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Speaker 1: in the president alone the first of law, or in

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Speaker 1: the heads of departments essentially cabinet secretaries. What the judge

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Speaker 1: said was that Musk is exercising at least the power

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Speaker 1: of inferior officer, probably the power of a principal officer.

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Speaker 1: But it doesn't matter which he is, because he wasn't

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Speaker 1: appointed in conformity with either procedures. He was not nominated

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Speaker 1: by the President and confirmed by the Senate. He was

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Speaker 1: apparently appointed by the president. But remember the appointment's cause

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Speaker 1: says that can only be a mechanism for inferior officers

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Speaker 1: if Congress authorizes it, and Congress did not authorize this.

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Speaker 1: Congress didn't even create those dose as a creation solely

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Speaker 1: of President Trump.

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Speaker 2: Administration had said that Musk isn't the real head of

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Speaker 2: DOZE and doesn't have the power to make these kinds

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Speaker 2: of decisions. But the judge cited Trump's statements about Musk

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Speaker 2: and Musk's comments and social media posts to demonstrate that

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Speaker 2: quote he has firm control over DOGE.

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Speaker 1: That's right. It's essentially holding that. Even though at one

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Speaker 1: point or another the administration has tried to claim that

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Speaker 1: Musk is just an advisor, he was in fact exercising

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Speaker 1: the power of the head of DOGE. Musk has claimed

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Speaker 1: that he is the President in his address to the

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Speaker 1: Joint Session of Congress referred to him that way. He's

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Speaker 1: referred to him that way in other statements. And so

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Speaker 1: you can't just evade the appointment's clause by having somebody

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Speaker 1: the de facto principle or imperial officer without triggering the

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Speaker 1: requirements of the clause.

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Speaker 2: So the judge also found that this push to dismantle USAID,

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Speaker 2: which was created by Congress, likely violated the separation of

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Speaker 2: powers principles.

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Speaker 1: Yeah, so this is the other key point of the

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Speaker 1: constitutional ruling. The Constitution refers to agencies, but leads to

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Speaker 1: Congress the prerogative to create and destroy agencies, and the

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Speaker 1: administration seems to have recognized this in another context. So

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Speaker 1: with respect to the Department of Education, which President Trump

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Speaker 1: has said he'd like to close. Secretary McMahon has been

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Speaker 1: taking efforts to reduce its footprint, but even she acknowledges

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Speaker 1: that she can't dismantle the Department of Education on her own.

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Speaker 1: That would require an Act of Congress. Here, by contrasts,

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Speaker 1: Musk and to some extent, Trump have effectively said they

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Speaker 1: are dismantling USAID and they can't do that, right. It's

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Speaker 1: up to Congress to destroy the agencies it creates. They

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Speaker 1: haven't literally white out USAID. But if Congress creates an

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Speaker 1: agency and then the executive branch essentially guts it, that's

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Speaker 1: the equivalent. That's how the judge ruled. In any event,

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Speaker 1: what is.

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Speaker 2: The practical effect of the judge's order when you know,

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Speaker 2: as you said, as he said, the USAID has effectively

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Speaker 2: been eliminated.

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Speaker 1: Well, I want to distinguish between the appointment's clause issue

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Speaker 1: and the separation of powers issue. With respect to the

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Speaker 1: appointment's clause, the judge stayed his ruling for a brief

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Speaker 1: period because he acknowledged that if the decisions that were

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Speaker 1: effectively taken by Musk are now ratified by actual USAID officials,

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Speaker 1: then that would render must the facto and de Joor

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Speaker 1: a mere advisor, in which case there would not be

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Speaker 1: an appointment's clause violation, or at least not one that

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Speaker 1: leads to invalidation of the underlying actions with respect to

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Speaker 1: the separation of powers argument. However, the effect is to basically,

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Speaker 1: on a going forward basis, they can't dismiss anybody else.

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Speaker 1: The judge didn't give the plaintiffs everything they wanted, but

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Speaker 1: one thing he crucially did do was making an order

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Speaker 1: that it has an impact agency wide. The government had said, well,

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Speaker 1: whatever you do, limit your remedy to the specific plaintiffs

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Speaker 1: who filed, and the judge of well, I can't do

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Speaker 1: that because if you look at the caption, the plaintiffs

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Speaker 1: who filed are so called dough plaintiffs. That is there,

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Speaker 1: you know, pseudonymized John Doe's one through I don't remember

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Speaker 1: exactly how many there are. And the risk would be

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Speaker 1: that if you gave relief just to these particular plaintiffs,

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Speaker 1: some of whom have been suspended, some of whom have

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Speaker 1: been fired, then you're going to reveal their identities and

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Speaker 1: they'll be subject to reprisalm So the short of it

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Speaker 1: is that the administration can't make further cuts to USAID.

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Speaker 1: Some of the personnel will be put back in their jobs,

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Speaker 1: but all of this, of course, is going to be

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Speaker 1: subject to an appeal, which the administration has said.

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Speaker 2: It will take, even if they're put back in their jobs.

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Speaker 2: The judge gave Rubio what fourteen days to decide whether

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Speaker 2: to permanently close the agency's headquarters.

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Speaker 1: Right, so, the President and the Secretary of State, where

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Speaker 1: it's agency lodge within the State Department, do have considerable

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Speaker 1: discretion about how to run and even structure an agency

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Speaker 1: where Congress doesn't say exactly what you have to do.

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Speaker 1: And so that's part of what the judge is doing here.

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Speaker 1: He's saying that you can't completely close it, but you

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Speaker 1: do have some considerable discretion, and I'm going to wait

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Speaker 1: until you exercise that discretion and see, you know, whether

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Speaker 1: you've done so in a way that at least preserves

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Speaker 1: the core of what Congress set up this agency to do.

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Speaker 2: This decision, obviously is limited to USAID. It's the first

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Speaker 2: time that or it's the most direct ruling to date

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Speaker 2: that Musk's roll violates the Constitution. Does this decision have

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Speaker 2: any impact outside of USAID?

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Speaker 1: Yes, the principle that the judge applied would apply to

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Speaker 1: all of the things that Musk is doing with respect

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Speaker 1: to the entire federal government. Right, So there's no difference

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Speaker 1: in principle between Musk's unlawful appointment with respect to USAID

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Speaker 1: on the one hand, versus all the other agencies that

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Speaker 1: he's been going around and making decisions with respect to.

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Speaker 1: But of course other judges might reach a different conclusion

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Speaker 1: on the appointment's clause question. And even if they reach

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Speaker 1: the same conclusion, there is this pretty big loophole that

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Speaker 1: the judge allows for cabinet level officials or other personnel

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Speaker 1: within the agencies who are actually properly appointed to ratify

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Speaker 1: the decisions that Musk has made, so that they can

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Speaker 1: render him advisory in the way that the administration has

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Speaker 1: sometimes claimed he is after the fact and thereby avoid

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Speaker 1: you know, the judicial and validation of everything that Musk

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Speaker 1: and DOGE have done.

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Speaker 2: This is an example of how DOGE is moving so

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Speaker 2: fast that by the time these go through the courts,

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Speaker 2: the damage has been done.

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Speaker 1: Yeah, I think that's right. I mean, you know, Musk

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Speaker 1: comes from the move fast and break things worldview, and

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Speaker 1: you know that works in the business world, and you know,

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Speaker 1: apparently it works pretty well with respect to government. Also,

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Speaker 1: it's always easier to just destroy than to create. And

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Speaker 1: even if a court says after the fact what you've

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Speaker 1: done is illegal, if a lot of the people who

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Speaker 1: were unlawfully fired have in the meantime taken new jobs

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Speaker 1: or decided that they don't want to work in an

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Speaker 1: environment in which they could be fired again, but this

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Speaker 1: time lawfully, then you have effectively gotten most of what

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Speaker 1: you wanted, even though you broke the law in doing so.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with Professor Michael Dorf of Cornell Law School.

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Speaker 2: Is the Trump administration defying court orders and what can

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Speaker 2: judges do about it? I'm June Grosso. When you're listening

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Speaker 2: to Bloomberg, there are more than one hundred and fifty

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Speaker 2: cases pending against the Trump administration from Maryland to California,

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Speaker 2: setting up multiple tests of executive power that may ultimately

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Speaker 2: land in the Supreme Court. Some judges have already called

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Speaker 2: out the Trump administration for not following their orders. President

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Speaker 2: Trump has not yet openly defined a court order and

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Speaker 2: says he won't, but he continues to complain about judges.

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Speaker 2: Listen to how he answered the question in an interview

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Speaker 2: on Fox yesterday.

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Speaker 1: I never did defy a court order, and you wouldn't

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Speaker 1: in the feud. No, you can't do that. However, we

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Speaker 1: have bad judges. We have very bad judges, and these

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Speaker 1: are judges that shouldn't be allowed. I think at a

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Speaker 1: certain point you have to start looking at what do

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Speaker 1: you do when you have a rogue judge.

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Speaker 2: That was just hours after the Chief Justice rebuked Trump

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Speaker 2: for calling for the impeachment of a judge. I've been

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Speaker 2: talking to constitutional law professor Michael Dorf of Cornell Law School.

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Speaker 2: There are court fights before judges around the country overdoze

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Speaker 2: burrowing into federal agencies, you know, staff cuts and canceling contracts,

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Speaker 2: and some judges are finding that the administration might not

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Speaker 2: be complying with their orders. Judge also up in Sent

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Speaker 2: Francisco last week issued a preliminary injunction requiring the administration

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Speaker 2: to rehire probationary employees at six agencies, almost twenty five

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Speaker 2: thousand federal workers while the legal suit is pending, and

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Speaker 2: on Monday, he ordered the Justice Department to explain what

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Speaker 2: was going on based on news reports that the probationary

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Speaker 2: workers were being rehired and then placed on administrative leave.

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Speaker 2: This is not allowed by the preliminary injunction he wrote,

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Speaker 2: for it would not restore the services the preliminary injunction

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Speaker 2: intends to restore. That's just one example. The freezing funds

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Speaker 2: is another example that the administration is either ignoring or

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Speaker 2: skirting or delaying complying with judicial orders.

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Speaker 1: Yeah, and that is a very very serious issue. Another

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Speaker 1: example is the administration's apparent violation of the judges order

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Speaker 1: in the case involving over Twitter people who are sent

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Speaker 1: to El Salvador by a pretty clearly unlawful invocation of

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Speaker 1: the Alien Enemies Act. The administration, i think, is playing

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Speaker 1: a little bit of a game. That is, in social

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Speaker 1: media posts and elsewhere, they are asserting essentially a power

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Speaker 1: to ignore judaical orders. But in actual court filings and

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Speaker 1: statements they have almost invariably claimed that they are complying,

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Speaker 1: but they do so with you know, somewhat flimsy reasons, right,

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Speaker 1: you know, just to give the example again from the

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Speaker 1: migrants case, right, they say, well, we complied with the

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Speaker 1: written order, but not with the oral order because an

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Speaker 1: oral order isn't really an order. In other cases they say, well,

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Speaker 1: we need more time, and so to the extent that

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Speaker 1: there's like a sliver of a silver lining, I guess

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Speaker 1: I'm glad that they're they at least feel the need

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Speaker 1: to pretend to be complying when speaking in open court,

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Speaker 1: because it strikes me that we would be in an

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Speaker 1: even worse constitutional crisis if a Department of Justice lawyer

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Speaker 1: stood up in open court and said to the judge,

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Speaker 1: make me you know, and then the President basically said, well,

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Speaker 1: you know, even the US marshals who are supposed to

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Speaker 1: enforce judicial orders are part of the Justice Department, and

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Speaker 1: I've instructed my Attorney General not to have them enforce

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Speaker 1: the judicial orders.

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Speaker 2: Let's hope we never get to that point. And the

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Speaker 2: judge in the case involving the Venezuelans who were deported

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Speaker 2: is still waiting for the same information that he asked

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Speaker 2: the government for on Monday, the exact time the planes

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Speaker 2: took off, the exact time they landed, when the Venezuelans

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Speaker 2: were out of US custody. I mean, it's been tooth

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Speaker 2: and nail trying to get the information from the government

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Speaker 2: to see if they actually ignored his court order, which

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Speaker 2: it appears they did.

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Speaker 1: Yeah. I mean the New York Times yesterday published their

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Speaker 1: own analysis based I guess on you know, aviation records

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Speaker 1: that made pretty clear that at least one of the

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Speaker 1: flights didn't take off until after the written order was

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Speaker 1: in effect, which, you know, if that's true, then even

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Speaker 1: on the administration's account, they violated the order.

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Speaker 2: And they're also using on the third plane, they're using

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Speaker 2: this argument that it isn't covered by the Alien Enemies Act,

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Speaker 2: so it doesn't count. Have other administrations acted like this

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Speaker 2: with court orders, you know, not openly defying them, but

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Speaker 2: not really complying with them either.

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Speaker 1: You can point to situations in which administrations have not

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Speaker 1: exactly bent over backwards to comply with the letter of

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Speaker 1: judicial orders. There are certainly cases in which administrations at

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Speaker 1: least seem to try to comply but were on abo

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Speaker 1: because of resource or time constraints. I can't think of

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Speaker 1: an administration that was so uniformly hostile to judicial orders

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Speaker 1: and at the same time was asserting that it had

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Speaker 1: the power to disregard what the court's told to do.

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Speaker 1: You know, the events that we think about in this

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Speaker 1: context are pretty scary moments in American history. So there's

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Speaker 1: a story that's told about President Andrew Jackson, who was

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Speaker 1: unhappy with the ruling of the Supreme Court in one

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Speaker 1: of the Cherokee removal cases and reportedly said John Marshall, meaning,

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Speaker 1: the Chief Justice of the United States has made his decision.

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Speaker 1: Now let's see him enforce it. By the way, he

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Speaker 1: probably never actually said that, but it's a good story.

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Speaker 1: There were this is not at the federal level, but

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Speaker 1: at the state level during the desegregation era, after Brown

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Speaker 1: against Portovichi, there was so called massive resistance. You see

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Speaker 1: a similar phenomenon throughout much of the country in response

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Speaker 1: to some of the Supreme Court's school prayer rulings. And

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Speaker 1: then at the federal level, there was a genuine worry

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Speaker 1: during the Nixon administration that when the Supreme Court ordered

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Speaker 1: him to turn over the secret tapes that he had

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Speaker 1: made in the White House to the special prosecutor, that

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Speaker 1: he might not comply. Now in the end, he did comply,

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Speaker 1: and that in short order, led to the end of

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Speaker 1: his presidency. But this is a recurring theme in American constitutionalism,

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Speaker 1: and it's because, as Alexander Hamilton wrote in Federalist number

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Speaker 1: seventy eight. The judiciary is what he called the least

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Speaker 1: dangerous branch, but it's also least powerful branch. Unlike Congress,

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Speaker 1: it lacks the power of the purse, and unlike the presidency,

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Speaker 1: it lacks the power of the sword. And so ultimately

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Speaker 1: the law and compliance with the law depends on good

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Speaker 1: faith efforts by those in government who do control believers

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Speaker 1: of power to actually accept that there is authority in

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Speaker 1: other branches of government. I'm not convinced that President Trump

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Speaker 1: or the people working for him have that kind of

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Speaker 1: a commitment to the rule of law.

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Speaker 2: So while we're on this case before Judge Boseburg over

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Speaker 2: the Venezuelan deportees, President Trump yesterday on truth Social said

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Speaker 2: that Judge Boseburg should be impeached, and then Chief Justice

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Speaker 2: John Roberts before noontime came out with his statement two

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Speaker 2: lines saying that this is not what impeachment is for.

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Speaker 2: You know, the appellate process should be followed. What's your

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Speaker 2: take on the Chief Justice at this moment. I mean,

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Speaker 2: he doesn't often comment outside out of his opinions are

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Speaker 2: outside of speeches that he makes even and doesn't say

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Speaker 2: much in the speeches usually what do you make of

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Speaker 2: him sort of stepping.

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Speaker 1: In so what you said is true. Although he has

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Speaker 1: in the past, once during the first Trump administration, another

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Speaker 1: time in response to something that Chuck Schumer said, made

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Speaker 1: statements like this. He also in his end of year

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Speaker 1: report decried personal attacks on judges as undermining the integrity

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Speaker 1: of the legal process. So this is something that he

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Speaker 1: has cared about. I think there's no question that the

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Speaker 1: timing here is not coincidental. You know, there are a

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Speaker 1: number of ways to read this. I mean I read

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Speaker 1: this rather straightforwardly as a chief Justice trying to tamp

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Speaker 1: down this kind of talk. I don't think it's really

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Speaker 1: necessary because although there have been articles of impeachment introduced

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Speaker 1: in Congress against some of the judges who ruled against

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Speaker 1: the Trump administration, those aren't going anywhere. Right. That is

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Speaker 1: to say, you need super majority in the Senate actually

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Speaker 1: to remove a judge, and you're not going to get

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Speaker 1: that with the number of seats Democrats hold. But I

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Speaker 1: do think that this was an attempt to push back

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Speaker 1: not just on the talk of impeachment, but also on

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Speaker 1: some of the personalization that you see from Trump and

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Speaker 1: some of his allies. You know, another way who read

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Speaker 1: it this is more cynical. It's not my view, but

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Speaker 1: I've seen this is that this is John Roberts sending

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Speaker 1: a signal to Donald Trump saying, Hey, you don't need

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Speaker 1: to get all excited about the individual judges. You could

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Speaker 1: win in the courts of appeals or maybe at the

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Speaker 1: Supreme Court. So calm down, and you know, come here,

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Speaker 1: maybe we'll take care of you again. I don't think

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Speaker 1: that's what's going on here, but you know, if you

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Speaker 1: recall at the President's speech before the Joint Session of Congress, right,

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Speaker 1: he actually goes up to Roberts and, you know, basically

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Speaker 1: thanks him for the decision and the immunity case last year.

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Speaker 1: I don't think Roberts was happy about that, but a

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Speaker 1: cynic might say, oh, sure, yeah, this is a kind

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Speaker 1: of two way relationship.

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Speaker 2: When I saw that, I thought, I bet Roberts is

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Speaker 2: cringing inwardly, you know, having a president thank you for

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Speaker 2: a decision.

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Speaker 1: Well, I mean there was that brief flash of Amy

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Speaker 1: Conny Barrett's face when he did that. She was standing

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Speaker 1: right next to Roberts, and she did seem to be cringing.

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Speaker 2: This could end up being a really tough time for

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Speaker 2: the judiciary.

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Speaker 1: There's a fire hose of illegality coming out of the

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Speaker 1: White House. But I do think that the fundamental issue

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Speaker 1: in all of these cases is the extent to which

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Speaker 1: the administration is going to comply with the judicial orders.

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Speaker 2: Well, we'll keep our eye on the case involving Judge Boseburg.

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Speaker 2: He's given the government one more day to give him

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Speaker 2: the information about the plane flights. Thanks so much for

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Speaker 2: joining me today, Mike. That's Professor Michael Dorf of Cornell

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Speaker 2: Law School coming up next on the Bloomberg Law Show.

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Speaker 2: Trump is making an emergency appeal to the Supreme Court

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Speaker 2: over his executive order seeking to restrict automatic birthright citizenship.

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Speaker 2: But what's the emergency. I'm June Grosso and this is Bloomberg.

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Speaker 2: President Donald Trump is asking the Supreme Court to intervene

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Speaker 2: on an emergency basis for the third time in his

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Speaker 2: second administration. Trump is asking the court to let him

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Speaker 2: partially enforce his executive order seeking to restrict automatic birthright citizenship,

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Speaker 2: a longstanding constitutional right. But the administration is not asking

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Speaker 2: the court to directly consider the constitutionality of his executive order,

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Speaker 2: instead focusing on the power of judges to issue nationwide injunctions.

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Speaker 2: Joining me is an expert in federal courts and jurisdiction,

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Speaker 2: Amanda Frost, a professor at the University of Virginia Law School.

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Speaker 2: Trump is asking the Supreme Court to let him partially

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Speaker 2: enforce his executive order to restrict automatic birthright citizenship. What

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Speaker 2: is he asking for.

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Speaker 3: Yes, that's fascinating. What he's asking for is for the

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Speaker 3: court to limit the injunctive release in the cases to

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Speaker 3: just the parties in the cases. So, these cases have

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Speaker 3: been brought by various different groups on behalf of their members.

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Speaker 3: I brought on behalf of individuals who are expecting a

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Speaker 3: child in the coming months and fit within the group

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Speaker 3: of people that would be arguably denied citizenship under the order.

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Speaker 3: States as well have food on behalf of their citizens,

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Speaker 3: and these courts, I think three of them have issued

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Speaker 3: what's called nationwide or universal injunctions to tell the government

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Speaker 3: you can't enforce this executive order against anyone, not against

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Speaker 3: the parties to the case, but also not against anyone

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Speaker 3: else in the United States. So in bringing the case

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Speaker 3: to the Supreme Court, the government's not conceding that the

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Speaker 3: injunction is appropriate us to the parties. It's not like

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Speaker 3: giving away that issue. But it's also not really fighting

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Speaker 3: that issue. It's asking the Supreme Court in its emergency

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Speaker 3: docket to narrow the injunction so that it applies just

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Speaker 3: to the parties. And they argue that states shouldn't be

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Speaker 3: allowed to sue on behalf of their citizens, So they're

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Speaker 3: trying to make it the only people who would get

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Speaker 3: relief and who wouldn't be subject to the order are

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Speaker 3: the named plaintiffs individuals in the case, and everyone else

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Speaker 3: in America whout a child would be subject to the order.

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Speaker 2: So does that make sense to have it apply to

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Speaker 2: just the name plaintiffs, one rule for this plaintiff and

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Speaker 2: another rule for the rest of the country.

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Speaker 3: No, it doesn't, And here's my explanation for why it doesn't.

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Speaker 3: So universal or nationwide injunctions can be issued in a

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Speaker 3: variety of cases. I think at times they're not appropriate.

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Speaker 3: I think they should be a remedy that's used sparingly. Often,

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Speaker 3: Relief just to the name parties to the suit the

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Speaker 3: plaintiffs is perfectly appropriate. There are, however, exceptions, and this

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Speaker 3: case is a good example of a case that should

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Speaker 3: be an exception. It should be an exception one because

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Speaker 3: of a chaos it would create, two because it's not administrable,

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Speaker 3: that is, who would be covered and who isn't would

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Speaker 3: be very difficult to determine. And three because we should

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Speaker 3: not ask each and every person who's having a child

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Speaker 3: in the United States, and it would be everyone this

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Speaker 3: would apply to have to prove their lineage in order

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Speaker 3: for their child to be recognized as a citizen and

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Speaker 3: something other than an undocumented immigrant.

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Speaker 2: Tell us more about the chaos it would create.

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Speaker 3: You can imagine, of course, if people were to have

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Speaker 3: children or risk of having children that wouldn't be citizens

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Speaker 3: or deemed a citizens by the government for some period

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Speaker 3: of time until the Supreme Court resolved the issue. You

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Speaker 3: can imagine how difficult that would be for those families.

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Speaker 3: US citizenship is essential for getting certain benefits like healthcare

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Speaker 3: of Medicaid type benefits, as well as qualifying for other

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Speaker 3: welfare benefits at the state or federal level. The citizenship

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Speaker 3: is essential for getting a passport for the child and

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Speaker 3: other identity documents. You can imagine parents who are here legally,

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Speaker 3: because the order applies to parents who are in the

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Speaker 3: United States legally but temporarily, which can mean for years.

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Speaker 3: On student visas or work visas. Those parents might want

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Speaker 3: to leave the country with their two or three month

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Speaker 3: old child and visit grandparents, for example, and yet they

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Speaker 3: couldn't do so. The child would have no ability to

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Speaker 3: get a passport that would allow them to enter at

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Speaker 3: the US again, and even though the parents are legally

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Speaker 3: free to come and go, their child wouldn't be. Their

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Speaker 3: child would be born undocumented, which means at risk of

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Speaker 3: being deported when we have a president who says to

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Speaker 3: port them all, So why not a newborn baby? And

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Speaker 3: then you can imagine couples who are in this situation again,

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Speaker 3: maybe perfectly legally present here for years, applying for Green

437
00:26:59,800 --> 00:27:02,880
Speaker 3: cars cards, able to stay. They might have a real

438
00:27:02,920 --> 00:27:05,000
Speaker 3: incentive now to flee to a state across a border

439
00:27:05,040 --> 00:27:07,560
Speaker 3: which this rule doesn't apply to, or to try to

440
00:27:07,560 --> 00:27:10,399
Speaker 3: find some other way of getting status for their child. Finally,

441
00:27:10,440 --> 00:27:13,439
Speaker 3: the federal government's not prepared to administer this. The federal

442
00:27:13,440 --> 00:27:15,840
Speaker 3: immigration laws all assume a child born on US soil

443
00:27:15,880 --> 00:27:18,520
Speaker 3: as a citizen, so there's no visa status for these children.

444
00:27:18,720 --> 00:27:20,720
Speaker 3: And yet the US government wants to impose this rule

445
00:27:20,800 --> 00:27:24,080
Speaker 3: without being ready, So that's the chaos. The administrability point

446
00:27:24,080 --> 00:27:26,480
Speaker 3: comes from. These are associations suing on behalf of the

447
00:27:26,520 --> 00:27:29,200
Speaker 3: association and its members. The administration is trying to limit

448
00:27:29,200 --> 00:27:31,399
Speaker 3: it just to like certain individuals in the association, but

449
00:27:31,440 --> 00:27:33,760
Speaker 3: that's not how the law works. The associations the party,

450
00:27:33,840 --> 00:27:36,040
Speaker 3: so all of their members should be covered. Who are members,

451
00:27:36,160 --> 00:27:38,840
Speaker 3: you know, that would be a difficult determination to make,

452
00:27:38,920 --> 00:27:40,879
Speaker 3: and so who would actually get the benefit of this

453
00:27:40,960 --> 00:27:42,560
Speaker 3: order wouldn't be clear if the government were to win.

454
00:27:42,800 --> 00:27:45,200
Speaker 3: And finally, the idea of everybody in the United States

455
00:27:45,359 --> 00:27:48,000
Speaker 3: having this uncertain status for their child until the Supreme

456
00:27:48,000 --> 00:27:51,119
Speaker 3: Court rules is violating constitutional rights, you know, potentially for

457
00:27:51,160 --> 00:27:53,919
Speaker 3: a year plus or at least potentially also rushing the

458
00:27:53,920 --> 00:27:57,240
Speaker 3: Supreme Court to decision. And this is not a case

459
00:27:57,280 --> 00:27:59,840
Speaker 3: in which the government has a strong argument for the

460
00:27:59,840 --> 00:28:03,280
Speaker 3: need for immediate ability to implement its own policy, which

461
00:28:03,400 --> 00:28:06,320
Speaker 3: is a break from about a century of precedent, so

462
00:28:06,359 --> 00:28:09,040
Speaker 3: it's asking to do something completely new. Also, in its

463
00:28:09,040 --> 00:28:12,040
Speaker 3: executive order, it said we won't even implement this order

464
00:28:12,240 --> 00:28:14,800
Speaker 3: for thirty days. It imposed to stay on itself. So

465
00:28:14,840 --> 00:28:17,440
Speaker 3: it's hard to see why it's such an emergency, right

466
00:28:17,480 --> 00:28:21,600
Speaker 3: now to immediately implement this absolutely brand new legal rule.

467
00:28:22,400 --> 00:28:26,639
Speaker 2: The Solicitor General wrote the Acting Solicitor General that universal

468
00:28:26,680 --> 00:28:30,199
Speaker 2: injunctions have reached epidemic proportions since the start of the

469
00:28:30,240 --> 00:28:35,480
Speaker 2: current administration. District courts have issued more universal injunctions and

470
00:28:35,600 --> 00:28:39,160
Speaker 2: tros during February twenty twenty five alone than through the

471
00:28:39,160 --> 00:28:42,480
Speaker 2: first three years of the Biden administration. Yeah, there's a

472
00:28:42,480 --> 00:28:43,280
Speaker 2: good reason for that.

473
00:28:43,400 --> 00:28:45,320
Speaker 3: Well, I mean in my first response, and by the way,

474
00:28:45,360 --> 00:28:47,240
Speaker 3: it was a response that I gave during the Obama

475
00:28:47,240 --> 00:28:50,200
Speaker 3: administration and during the Biden administration as well, which is

476
00:28:50,600 --> 00:28:53,080
Speaker 3: first that nationalide injunctions are not appropriate in every case,

477
00:28:53,120 --> 00:28:56,520
Speaker 3: I would agree, but second that they are response to

478
00:28:56,640 --> 00:29:00,320
Speaker 3: sweeping executive orders that attempt to rewrite massive areas of

479
00:29:00,400 --> 00:29:04,400
Speaker 3: law without federal legislative involvement, without congressional involvement, and that's

480
00:29:04,440 --> 00:29:07,240
Speaker 3: particularly been the case for immigration. Obama did it too,

481
00:29:07,400 --> 00:29:10,880
Speaker 3: Biden did it too. But when these executives issue sweeping

482
00:29:10,880 --> 00:29:13,920
Speaker 3: executive orders seeking to rewrite federal law for everyone, I

483
00:29:13,920 --> 00:29:15,880
Speaker 3: think it is not inappropriate to think, at least some

484
00:29:15,920 --> 00:29:19,080
Speaker 3: of the time, courts likewise have the power to enjoin

485
00:29:19,120 --> 00:29:21,800
Speaker 3: the nationwide and it's not one court in joining them

486
00:29:21,800 --> 00:29:23,800
Speaker 3: for the nation for all time. It can be immediately

487
00:29:23,800 --> 00:29:26,080
Speaker 3: appealed and is up to a three judge pellate court

488
00:29:26,160 --> 00:29:28,160
Speaker 3: and appealed again of the Supreme Court. And frankly, that's

489
00:29:28,160 --> 00:29:30,520
Speaker 3: how our legal system has always worked, so it is

490
00:29:30,520 --> 00:29:33,239
Speaker 3: not shocking to me to watch this happen. Should they

491
00:29:33,240 --> 00:29:35,880
Speaker 3: be issued in every case now? And do courts sometimes

492
00:29:35,880 --> 00:29:38,640
Speaker 3: overuse them? Certainly I would agree in fact with the

493
00:29:38,640 --> 00:29:41,440
Speaker 3: Birthright Citizenship Order, I think my view, but I feel

494
00:29:41,440 --> 00:29:44,320
Speaker 3: pretty confident that the nationwide injunction shouldn't apply to the

495
00:29:44,400 --> 00:29:47,280
Speaker 3: provision of the executive Order asking agencies to promulgate or

496
00:29:47,320 --> 00:29:49,360
Speaker 3: come up with rules and policies to implement it, as

497
00:29:49,360 --> 00:29:51,720
Speaker 3: long as they don't actually start implementing those policies. I

498
00:29:51,760 --> 00:29:53,920
Speaker 3: see no harm in having them work on those policies

499
00:29:54,400 --> 00:29:56,520
Speaker 3: within the agency, And in fact, that might enlighten us

500
00:29:56,520 --> 00:29:58,600
Speaker 3: as to how this would actually work in practice, which

501
00:29:58,600 --> 00:30:01,200
Speaker 3: I think would be very harmfulotic for the American people.

502
00:30:01,240 --> 00:30:04,080
Speaker 3: So it might be useful to see just how broadly

503
00:30:04,240 --> 00:30:06,720
Speaker 3: the State Department would apply the rule to refuse passports

504
00:30:06,720 --> 00:30:09,800
Speaker 3: to people's children. I'll repeat that everybody is going to

505
00:30:09,800 --> 00:30:11,360
Speaker 3: have to prove their lineage in order to get their

506
00:30:11,400 --> 00:30:14,440
Speaker 3: child to passport, and that might be harder than people realize.

507
00:30:14,240 --> 00:30:16,600
Speaker 2: And looking at you know whether the Supreme Court will

508
00:30:16,600 --> 00:30:19,000
Speaker 2: take it or not. In the past, there have been

509
00:30:19,040 --> 00:30:22,800
Speaker 2: a couple of justices who have questioned the wisdom of

510
00:30:22,880 --> 00:30:29,160
Speaker 2: these nationwide injunctions. Justice Neil Gorsich call them cosmic injunctions.

511
00:30:29,400 --> 00:30:31,960
Speaker 2: He also said sometimes judges seek to govern the whole

512
00:30:32,080 --> 00:30:36,400
Speaker 2: nation from their courtrooms. Justice Elena Kagan has said, it

513
00:30:36,560 --> 00:30:39,720
Speaker 2: just can't be right that one district judge can stop

514
00:30:39,760 --> 00:30:43,560
Speaker 2: a nationwide policy in its tracks and leave it stop

515
00:30:43,680 --> 00:30:45,480
Speaker 2: for the years that it takes to go through the

516
00:30:45,560 --> 00:30:49,960
Speaker 2: normal process. So they've questioned it several times, but they've

517
00:30:50,000 --> 00:30:52,560
Speaker 2: never taken up the issue. Do you think they might

518
00:30:52,600 --> 00:30:54,200
Speaker 2: take it up in this case?

519
00:30:54,400 --> 00:30:57,560
Speaker 3: Two or three justices have certainly criticized them. A couple

520
00:30:57,560 --> 00:30:59,280
Speaker 3: things about this one. The Supreme Court itself is should

521
00:30:59,280 --> 00:31:01,880
Speaker 3: a nationwide junction In the fairly recent past in the

522
00:31:01,920 --> 00:31:04,160
Speaker 3: travel ban case one of the early iterations of the

523
00:31:04,200 --> 00:31:06,520
Speaker 3: travel ban, and they left in place but after adjustment,

524
00:31:06,560 --> 00:31:10,000
Speaker 3: a nationwide injunction. So if these are unconstitutional and wrong,

525
00:31:10,120 --> 00:31:12,080
Speaker 3: the Supreme Court has been doing it until recently. They

526
00:31:12,080 --> 00:31:14,280
Speaker 3: can rethink it, but they should acknowledge they seem to

527
00:31:14,280 --> 00:31:18,480
Speaker 3: think it was fine within recent memory. The second point

528
00:31:18,720 --> 00:31:21,640
Speaker 3: is that saying that maybe they're overused and we should

529
00:31:21,640 --> 00:31:23,080
Speaker 3: have some criteria for how to use them, I think

530
00:31:23,160 --> 00:31:25,920
Speaker 3: is appropriate. Saying they're unconstitutional and should never be used,

531
00:31:25,960 --> 00:31:28,960
Speaker 3: I think is at odds with long standing equitable principles

532
00:31:29,040 --> 00:31:32,280
Speaker 3: and the constitutional role of courts. And written an article

533
00:31:32,400 --> 00:31:34,040
Speaker 3: on this where I talked about the factors that a

534
00:31:34,080 --> 00:31:36,560
Speaker 3: court should take into account before it issues such an injunction,

535
00:31:36,640 --> 00:31:38,400
Speaker 3: and that it should gather evidence on that and should

536
00:31:38,440 --> 00:31:40,400
Speaker 3: be cautious. If the Supreme Court wanted to say something

537
00:31:40,440 --> 00:31:42,320
Speaker 3: like that, I'd be all for it. If there's a

538
00:31:42,320 --> 00:31:44,880
Speaker 3: suggestion that they're inappropriate in all cases, I would repeat

539
00:31:44,880 --> 00:31:47,440
Speaker 3: my point that that's at odds with long standing equitable

540
00:31:47,480 --> 00:31:50,320
Speaker 3: practices and would really undermine the role of courts. And

541
00:31:50,360 --> 00:31:54,760
Speaker 3: I'll give an example imagining an executive branch official who

542
00:31:54,840 --> 00:31:57,240
Speaker 3: issues an order that says, in order to vote, you

543
00:31:57,280 --> 00:31:59,440
Speaker 3: must have a passport. That's the only ID document will

544
00:31:59,480 --> 00:32:00,920
Speaker 3: accept for you to vote, because you've got to be

545
00:32:00,920 --> 00:32:02,960
Speaker 3: a citizen, and so to vote you to have a passport. Well,

546
00:32:03,000 --> 00:32:04,960
Speaker 3: of course, many Americans don't have a passport, and that

547
00:32:04,960 --> 00:32:07,520
Speaker 3: would be illegal to limit voting to those people. But

548
00:32:07,520 --> 00:32:10,320
Speaker 3: then imagine the views. Well, there's no nationwide injunctions, and

549
00:32:10,320 --> 00:32:12,240
Speaker 3: we won't certify a class because that's hard to do.

550
00:32:12,920 --> 00:32:15,320
Speaker 3: So the elections two weeks away. Those of you who

551
00:32:15,320 --> 00:32:16,760
Speaker 3: can sue between now and then, you get to vote

552
00:32:16,760 --> 00:32:18,840
Speaker 3: even if you don't have a passport. Everyone else, you know, well,

553
00:32:18,960 --> 00:32:21,200
Speaker 3: you'll get justice eventually when the Supreme Court hears it.

554
00:32:21,280 --> 00:32:21,480
Speaker 2: Right.

555
00:32:21,720 --> 00:32:24,600
Speaker 3: That shows you, in that fairly extreme example, that sometimes

556
00:32:24,680 --> 00:32:28,000
Speaker 3: the deprivation of constitutional rights for a short period itself

557
00:32:28,080 --> 00:32:31,200
Speaker 3: can be accomplish the executive's goal, even if its actions are

558
00:32:31,240 --> 00:32:34,520
Speaker 3: clearly unconstitutional and eventually struck down. That's what I believe

559
00:32:34,520 --> 00:32:37,840
Speaker 3: birthright citizenship is right. It's a constitutional right, long recognized,

560
00:32:37,920 --> 00:32:40,520
Speaker 3: lung assumed to exist by all the branches of government.

561
00:32:40,560 --> 00:32:42,720
Speaker 3: And yet the government wants to start stripping citizenship of

562
00:32:42,760 --> 00:32:45,480
Speaker 3: people until the Supreme Court addresses it a year from now.

563
00:32:45,720 --> 00:32:49,160
Speaker 3: That year of citizenship lass is itself an enormous constitutional

564
00:32:49,200 --> 00:32:50,040
Speaker 3: problem in violation.

565
00:32:50,400 --> 00:32:54,600
Speaker 2: Chief Justice Roberts set April fourth as a deadline for

566
00:32:55,000 --> 00:32:58,560
Speaker 2: responses from the states and the others that are challenging

567
00:32:58,720 --> 00:33:02,480
Speaker 2: Trump's order on birthrights citizenship. Does that indicate that it's

568
00:33:02,520 --> 00:33:05,520
Speaker 2: not considered an emergency since you know he's waiting till

569
00:33:05,560 --> 00:33:06,120
Speaker 2: next month.

570
00:33:06,760 --> 00:33:09,160
Speaker 3: Yes, that certainly because the court doesn't view it as

571
00:33:09,160 --> 00:33:11,320
Speaker 3: an emergency. And it's hard for me to see how

572
00:33:11,320 --> 00:33:13,440
Speaker 3: it's an emergency when, as I mentioned at the asset,

573
00:33:13,760 --> 00:33:16,240
Speaker 3: the executive order itself didn't immediately put it into effect.

574
00:33:16,560 --> 00:33:19,520
Speaker 2: We're two months into the administration and this is the

575
00:33:19,560 --> 00:33:21,680
Speaker 2: third time they've been at the Supreme Court.

576
00:33:22,280 --> 00:33:24,200
Speaker 3: Well, yeah, I mean that's their policy as a flood

577
00:33:24,200 --> 00:33:27,040
Speaker 3: the zone policy right to like just bombard the world

578
00:33:27,080 --> 00:33:29,560
Speaker 3: with their legal changes. I will say, I don't think

579
00:33:29,560 --> 00:33:30,240
Speaker 3: they're handling it.

580
00:33:30,240 --> 00:33:30,440
Speaker 1: Well.

581
00:33:30,680 --> 00:33:33,920
Speaker 3: I agree, it's totally disruptive to the people that are affected,

582
00:33:33,960 --> 00:33:37,560
Speaker 3: to the court system, to the lawyers and advocates on

583
00:33:37,600 --> 00:33:39,600
Speaker 3: the other side. But the government is doing a terrible

584
00:33:39,680 --> 00:33:43,040
Speaker 3: job of litigating these cases. They're sloppy, they've got typos,

585
00:33:43,080 --> 00:33:45,840
Speaker 3: the quality is poor. The lawyers can't answer the judges questions.

586
00:33:46,400 --> 00:33:49,360
Speaker 3: I mean, they're a limited shop, right like, they don't

587
00:33:49,400 --> 00:33:52,840
Speaker 3: have endless numbers of employees, and they too seem to

588
00:33:52,880 --> 00:33:56,640
Speaker 3: be adslee flailing under this, including making this questionable choice

589
00:33:56,640 --> 00:33:58,920
Speaker 3: to bring this as their third case before the court.

590
00:33:59,160 --> 00:34:01,680
Speaker 2: Well see if the court rejects this or if there

591
00:34:01,720 --> 00:34:05,640
Speaker 2: are four justices who want to take the case. Thanks

592
00:34:05,680 --> 00:34:08,600
Speaker 2: so much for being on the show. That's Professor Amanda

593
00:34:08,640 --> 00:34:12,560
Speaker 2: Frost at the University of Virginia Law School. And that's

594
00:34:12,600 --> 00:34:15,200
Speaker 2: it for this edition of The Bloomberg Law Show. Remember

595
00:34:15,239 --> 00:34:17,319
Speaker 2: you can always get the latest legal news on our

596
00:34:17,360 --> 00:34:21,520
Speaker 2: Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

597
00:34:21,680 --> 00:34:26,719
Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law,

598
00:34:27,120 --> 00:34:29,720
Speaker 2: And remember to tune into The Bloomberg Law Show every

599
00:34:29,760 --> 00:34:33,680
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

600
00:34:33,800 --> 00:34:35,400
Speaker 2: and you're listening to Bloomberg