Speaker 1: What's going on? Thank you so much for listening to
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smartphone or tablet, and again, thank you so much for
your support. On Thursday, yesterday, the US Supreme Court heard
oral arguments in the case of Trump versus Casa, Inc.
Though the case arises out of President Donald Trump's January
executive order on birthright citizenship and the Fourteenth Amendment, the
oral arguments yesterday had very little to do with the
hotly contested substantive issue of whether the children of illegal
aliens born on US soil must automatically be conferred American citizenship. Instead,
the argument mostly focused on a procedural legal issue which
is actually just as important as the underlying substantive issue
of birthright citizenship itself. And here's the substantive legal procedural issue.
Whether lower court federal judges have the legitimate power to
issue nationwide injunctions to bring laws or executive orders to
a complete halt throughout the entire Republic. I have covered
this in the past over the last few months when
this story started kind of or the case started, you know,
percolating through the system, and I said, there's you know,
I don't know what the Trump administration strategy is on
the birthright citizenship thing, right on the executive order, but
there has always been clearly to me these two tracts.
One is the issue itself right, the birthright citizenship issue,
where there is a difference of opinion about whether the
Supreme Court got it right or wrong, or whether it
is it is settled right that if you simply come
to the country illegally have the child here, that that
child is automatically a US citizen, even if you are
here illegally.
Speaker 2: Right.
Speaker 1: That's a separate question than the injunctions. And they could
have they could have fought this injunction fight on any
number of cases, because you have all these Democrat judges
that have been issuing national injunctions since Trump started doing
the executive orders, and it has created chaos. These you know,
loan judges on a bench saying you can't enact that policy,
and my order covers the entire country. And there has
been over the years, recent years, various comments and arguments
made by members of the Supreme Court that seem to
indicate they recognize there is a problem going on here
with these lower court federal district judges issuing nationwide injunctions,
but for some reason the Supreme Court has been unable
or unwilling to try to rein them in. And according
to Josh Hammer, who is the senior editor at large
over at Newsweek and the host of The Josh Hammer Show,
regarding this question of nationwide injunctions, he says, there is
a very straightforward answer to this question. No, they do not.
They do not have this power, this legitimate power, And
it is imperative for American constitutionalism and Republican self governance
that the Justices clearly affirm this that the lower court
judges do not have the power to issue an injunction
that covers the entire country. You are not a federal
district judge of the entire US. You are a judge
in that district. So first, let's set the table. Article
three of the Constitution establishes the judicial power of the
United States Article three. By the way, Josh Hammer is
also a senior lawyer, senior counsel for the Article three project,
the Article three project. I've talked to Will Chamberlain about
it as well. He's also with the Article three project.
This is their focus. It's on the judiciary. Article one executive,
Article two is or sorry, Article one is Congress. Article
two is executive. Article three is judicial branches. That's where
they lay out in the Constitution the powers. So Article
three talks about the judicial power, the power to issue
binding judgments and to settle legal disputes within the court's jurisdiction.
That's the key part there. If the federal courts can
bind parties, right, plaintiffs, defendants. If they can bind parties,
then the crucial question is who who are the parties?
In other words, what is the legitimate jurisdiction of who
is strictly bound by a federal court that issues an injunction?
Hammer says, in our system of governance, it is only
the named parties to a given lawsuit that can truly
be bound by court's judgment, a federal court's injunction. He
goes on to say later in the piece, a federal
court injunction only binds the defendant's conduct with respect to
the plaintiff. If other courts in other districts face a
similar case, then those judges might consider their peer judge's
decision and follow that. But they are not strictly required
to do so. Right, So, if I don't like some
executive order and I sue in the Charlotte area and
I win, well, that would control for my area. And
if you and you live and let's say Omaha, and
you agree with me and you don't like the executive
order either, you don't get to then, just like benefit
from my lawsuit, you would have to file your own.
And when you file your own, that district court judge
could look at the one that ruled in favor for
me and say, well, that judge in Charlotte said Pete
was right, and they ruled in Pete's favor, So I'm
going to rule in your favor in Omaha. And that's
the system. Rather than a national a national restriction or
injunction for truly national legal issues, the proper recourse is
a class action lawsuit. This is authorized by Rule twenty
three of the Federal Rules of Civil Procedure. Oh but
that's hard to do. Yes, it is, Yes, it is.
You have to get certified as a class in order
to file class action lawsuits. But that's the way you're
supposed to do it for a nationwide type of a case.
He goes on to quote Abraham Lincoln who warned in
his first inaugural address, quote, the candid citizen must confess
that if the policy of the government, upon vital questions
affecting the whole people, is to be irrevocably fixed by
the judiciary the instant they are made in ordinary litigation
between parties and personal actions, than the peace people will
have ceased to be their own rulers. What does that mean?
If you rely on the judiciary right to quote, fix
things immediately upon their ruling, then you do not rule yourself.
You are ruled by lawyers in black robes. He goes
on to say. Josh Hammer goes on to say, it's
true that Chief Justice John Marshall's landmark eighteen oh three
ruling Marbury versus Madison established that quote it is emphatically
the province and duty of the Judicial Department to say
what the law is. But but Marshall said something else.
In fact, it's the very next sentence. Those who apply
the rule to particular cases must of necessity expound and
interpret that rule right. The key phrase there, apply the
role to particular cases. Marbury v. Madison is often erroneously
evoked to support judicial supremacy. But the modest case and
litigant specific judicial review that Marshall established has nothing to
do with the modern judicial supremacy and these nationwide injunctions
that proliferate today. It is the fallacious conception of judicial
supremacy that was argued Thursday at the Supreme Court. So
what are the chances that the Supreme Court rangs this in?
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video dot com. Remember Brett Winterble joining me for the pregame?
We call it pregaming with Brett or pregaming with Brett went,
pregaming with winter Pregaming with Brett. Yeah, that's what we
call it from now on. Dan McLaughlin writing over at
National Review about this Trump VI CASA Inc. Challenge Donald
Trump's executive order eliminating birthright citizenship and the scope of
nationwide injunctive relief that district courts have been using. Now,
he says, judging from the argument the oral argument yesterday,
it appears that the court is going to focus its
decision narrowly on the nationwide injunction issue. They may not
even take up the birthright citizenship portion. The administration may
live to regret choosing this case as a vehicle to
decide that question, the injunctive relief question. So first, why
would they not do the national birthright or birthright citizenship issue.
This gets to the fourteenth Amendment, right ratified eighteen sixty eight,
says all persons born or naturalized in the US, and
subject to the jurisdiction thereof, are citizens of the United States,
and that qualification there subject to the jurisdiction thereof. Like,
that's the sticking point. What does that mean? And then
there was this case in eighteen ninety eight, thirty years
after ratification of the amendment. It's the US versus Wang
Kim arc And according to McLaughlin, there was much discussion
in Congress about excluding from citizenship the children of three
distinct groups, all of whom were considered outside of the
jurisdiction of American laws, even when on our soil they
are sovereign Native American tribes. Ambassadors are kings of foreign
nations and soldiers of invading foreign armies. That's who they
were talking about when they were listing the subject to
the jurisdiction thereof. And then came the case Wangkim Mark,
and the Supreme Court said that this short list of
people outside of the jurisdiction or protection of American law
were the only ones whose children would not acquire citizenship
at birth on our soil. Okay, So the Supreme Court
may very well just say yeah, they yeah, we got
it right back then. So after Trump signed the executive order,
lawsuits followed immediately. The administration has lost in every court
to consider the issue so far, because lower courts are
not the proper place to challenge that Wan Kim are
ruling right, that's Supreme Court precedent, and so you don't
go through the lower courts in order to challenge them.
The President several justices noted during arguments yesterday that they'd
taken the case this case just to decide the injunction issue.
And that's why McLoughlin thinks that the birthright citizenship thing's
going nowhere. They're not going to overturn that precedent. They're
just going to focus on the injunctions. Sam Alito was
especially insistent on that point. That's why he wanted this case.
Chief Justice John Roberts even at one point cut off
the Solicitor General John Sower from spending time arguing the merits,
in other words, arguing about the birthright citizenship portion. He
cut them off, ironically, just after Roberts had complained that
Sonya Soda Mayor was not letting Sour answer a question.
So he chastised Sonya Soda Mayor for cutting off the
Solicitor General, and then he turned around and her cut
off John Sower too. Anyway, the challengers conceded that the
Court would need to order supplemental briefing if it wanted
to side the birthright citizenship question. So these are signs
that you know, the Supreme Court watchers look at when
they try to get a read on where the minds
of the of the justices are next. And by the way,
this is a National Review if you are interested to
read this. It's a very lengthy piece published yesterday called
the Birthright Citizenship Showdown, focuses on nationwide injunctions. Page three,
Dan McLaughlin says Trump administration is the Trump administration is
playing for arguably bigger stakes here than the definition of citizenship.
They're playing for an end to the routine practice of
district courts entering nationwide injunctions under which individual judges in
deep blue states or deep red if there's a Democrat
president right but right now, deep blue state judges that
tie the hands of the entire executive branch while a
case is working its way through the courts. Such orders
often begin with a temporary restraining order, which is issued
before the Justice Department lawyers can even get into the
courthouse door to make their case. This is forum shopping,
judge shopping law fare, whatever you want to call it.
This is part of the strategy that Democrats have been using,
and Republicans have started adopting this too. They started doing
this as well. You go to your local district court,
you know that these are Republican appointees or Democrat appointees
that are going to rule favorably on your argument, and
you ask for a temporary restraining order and you run
down there ask for the TRORO, and the defendant barely
has time to even put together a case before the
tro gets slapped onto the government. And that means you've
got a restraining order. It means you can't do anything
until we hear more of the case. So once that
freeze happens. Now the executive branch is frozen. They can't
do anything. Now You've got to schedule the hearings and
bring in the people, and file the briefs and have
the arguments, write the opinions, get the opinions, appeal the opinions,
bring in more people, right, change the venues or whatever like.
Got to work your way up through the systems. It's
a stall tactic. I've said this from the very beginning, right.
The whole point is to delay. There are practical and
jurisprudential arguments for nationwide injunctions and against nationwide injunctions. He
outlines three arguments against the national injunctions and three arguments four.
So here are the arguments against the injunctions. Number one,
they encourage form shopping, as I just said, right, favorable
looking for favorable judges, which then gives too much power
to those judges. Number two, they are asymmetrical. If the
government wins nine times out of ten, it's still under
one injunction nationwide. That violates the usual rule in civil
litigation that the decision binds both sides, but only the
people actually before the court.
Speaker 2: Right.
Speaker 1: Usual rule in civil litigation that the decision binds both sides,
but that only means the people that are before the court.
You cannot bind people outside of this case. The people
who lost the first nine cases still get to win.
That problem can be fixed by filing a class actually lawsuit,
but certifying a class slows down the process, so that's
why they don't do it right. So them going to
the district court judges and getting these favorable injunction rulings
is an end run around the class action lawsuit process
because it takes too long, and what they are in
it for is to delay accelerated proceedings, one of the
other reasons against the nationwide injunctions. Accelerated proceedings often dump
cases in the Supreme Court's lap before the factual record
is clear and before the lower courts have had time
to let the legal issues percolate by different appeals courts
that take a crack at them. Right, there is a
reason why you set up the appeals process is so
all of these different fact facts and patterns and arguments
can be examined turned over, and you get different judges
looking at the issues and hearing the facts at different
levels that then hopefully produces a better product and can
resolve the matter in the lower courts in a way
that then stays settled versus slapping injunctions. Get one guy
looks at some arguments, makes a ruling, and now everything
is frozen. Now there are some arguments in favor of
the nationwide injunction. It's anomalous and sometimes impractical for the
federal Executive Branch, which by design makes and executes policy
decisions on a national basis, to spend years operating under
conflicting court rulings in different states. Right, that's a fair argument.
I think Charlotte makes one ruling, Omaha makes another ruling,
and it takes a long time to get all the
way to the US Supreme Court, And in the meantime
you got different jurisdictions operating with different rules. That is
a case for nationwide injunctions. There are two others. I'll
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memories that'll last a lifetime. Oral arguments heard of the
Supreme Court yesterday about birthright citizenship Trump's executive order to
get rid of it. But the real case is actually
about the nationwide injunctions that district court judges have been doing.
And I went through three of the arguments against nationwide injunctions.
There are three arguments in favor of these nationwide injunctions.
I went over one of them, which is that you
end up with all sorts of different conflicting rulings from
different district judges around the country. But that's the way
it's supposed to have been done, and then it percolates
up through the appellate process, and then if they can't reconcile,
then it goes all the way to the US Supreme Court.
That's one argument, well, one against and also but in favor,
which is to say, a nationwide injunction prevents all of
these different content inflicting rulings. Number Two, it's wasteful to
demand that every individual, sometimes millions of people affected by
the same decision to forcing them all to file duplicative lawsuits. Okay,
so that's a lot of extra time, effort, lawyer fees, right,
everything else. And the third argument in favor of nationwide injunctions.
Congress has often authorized judicial relief against the executive in
terms that assume a broad power to enjoin unlawful action.
So the Administrative Procedure Act, which is the vehicle for
a lot of these lawsuits, the APA tells courts quote
to hold unlawful and set aside agency action that fails
to meet its standards, and then it authorizes actions for
declaratory judgments or writs of prohibitory or mandatory injunction blah
blah blah. Okay. So, in the long run, the legality
of executive branch actions can be settled by the Supreme
Court here. But as Justice Brett Kavanaugh noted, citing Biden
era rules such as the vaccine mandate and the eviction
moratorium that took a year or more to reach the court,
it can matter quite a lot whether or not an
executive rule is in effect when the cases play out
in court. Right when when you're trying to get something
that the executive branch is done, like vaccine mandates, when
you're trying to stop that from happening, the longer it
takes to build the class action to work through the courts,
the longer that mandate remains in place. Right, So a
nationwide injunction that can stop that vaccine mandate immediately, you
would think that would be of benefit. Or the eviction moratorium.
The injury to individual rights is obvious enough when the
president or the executive agencies are acting illegally for years
until the court weighs in. Right, Joe Biden did this
openly in the eviction moratorium case. But the injury to
the public interest when the executive cannot act on the
nation's behalf for half of his elected term, that's also significant.
Trump's trying to do stuff, and by filing all these injunctions,
they're stopping him from doing this stuff. See like, I'm
not so sure that the law is going to be
able to remedy what is a political act. This is right,
and this is political warfare. They do not want him
to succeed in anything. So if they can just get
him to stay in court, tie him up, he won't
be able to get anything done and then he's out
of office. Delaying is the strategy, and this is particularly
significant in areas like national security, public safety, public health.
So Dan McLaughlin goes on to say that there's no
reason in this case to wait for the legal questions
to percolate through the lower courts, because really only the
Supreme Court to decide can decide whether or not to
overturn the birthright citizenship precedent case. The entire question at
issue can be decided on the basis of whether the
Supreme Court back then correctly interpreted the constitutional text. But
that's bad news for the administration's position in making this
its test case, because it loses some of the most
forceful concerns that arise in other cases about the poor
quality of justice that can be delivered when individual district
judges turn themselves into instant arbiters of national executive policy.
He goes on to conclude the sleeping elephant in the
room Congress, many of the worst features of the nationwide
injunction litigation could be fixed by the two parties in
Congress getting together to find common ground and write a
statute that reforms forum shopping, provides three judged district courts
and expedited appeals for cases that seek nationwide relief, prevent
successive suits for the same relief so they can't keep
going back for more bites at the apple offer statutory
standards for injunctions and otherwise does the sort of lawmaking
that is supposed to come from the lawmaking branch. Congress
can fix this rather than continuing to suffer, as he
calls it, from a war of attrition between an imperial
executive and an imperial judiciary. All right, if you're listening
to this show, you know I try to keep up
with all sorts of current events, and I know you
do too, And you've probably heard me say get your
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detect media bias, which is why I've been so impressed
with ground News. It's an app, and it's a website
and it combines news from around the world in one
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I started using ground News a few months ago and
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media landscape more transparent, as we do in the final
segment here on the program, Every Friday we check with
Brett Winnable afternoons three to still seven, but soon to
be just three to six. That's right, Bred Rennable on WBT.
How are you, sir?
Speaker 4: I'm doing great that we are going to be part
of a shrink flation at that point, we're going to
get exactly the same amount.
Speaker 2: Of content, but it's going to be in three hours, not.
Speaker 1: For that's amazing shrink flation. I thought we got rid
of that when Trump won.
Speaker 2: It's still kind of out there. Yeah yeah, I mean,
if you liked.
Speaker 1: It, never goes back. They're never going to make the
packages of Cheeto's backs.
Speaker 4: And Cheetos and the whole thing. And look at if
you've ever got a found a leftover bag of of
anything now, I mean you just you look at that
and you go, oh.
Speaker 1: Goose were the days man? Yeah?
Speaker 4: Yeah, somoas So I got a clip to play for you, please,
I need it.
Speaker 1: What You probably already have seen this because you do
as much show prep as anybody I know. So here
we go. This is Scott Jennings on CNN and he's
speaking on a panel and you're going to hear a
female voice here, and he's going to respond to the
female voice. She's a Democrat strategist person.
Speaker 2: Oh awesome, it's mad.
Speaker 5: Why the basis mad at some of the leaders in Washington,
It's not because they're not left enough. It's because, you know,
Chuck Schumer came out with no strategy, no forewarning and
just said we're going to fold on the cr all right.
Speaker 1: So this is Liz Smith, the former comms advisor to
Pete Booty Gig. Okay, Liz Smith. So it's not because
they didn't go left enough.
Speaker 5: I mean, I think you could have done a better
job of explaining what the strategy was and what we're
going to do, but there wasn't anything like that. I
think Democrats are learning and I'm going to agree with
you that Democrats cannot only be the party of resistance.
We cannot like we resisted so hard between twenty seventeen
and twenty twenty four, we impeached the guy, like, we've
prosecuted him, convicted him with thirty four felony accounts, and
guess what, he still got elected. So I don't know
how much harder we can resist?
Speaker 2: Right now?
Speaker 4: Are you admitting that the case against Trump in New
York was part of the organized Democratic Party resistance?
Speaker 5: It was a Democratic prosecutor and at the time, okay,
at the time said I thought it was unwise. I
went on Fox News and said, he said.
Speaker 2: That's at the time.
Speaker 1: Just to be clear, this wasn't.
Speaker 4: Just to be clear, everybody who now touts the thirty
four felonies, take it from Liz.
Speaker 1: This was not a real case.
Speaker 4: This was a plot to up end the presidential campaign.
Speaker 5: Which I just think it was a boneheaded move by
Alvin Bragg. But it's not his first or last one.
Speaker 4: This is why we invited. Wow, I mean, that's Look,
it's great, that's a great reveal. Now it can be
told how it can be told. And you know what's
they failed at resisting? Right Like, how do you fail
at resisting? Like they even failed the first time around
with the resisting, the resisting that never really worked.
Speaker 1: I think I know the answer. What it has to
do with the dyings.
Speaker 4: You mean, like the dians, like back in the nuclear
protests and all that, like in the eighties.
Speaker 1: Or more recently in like the old the grocery stores
where they just like lay down in the middle of
the grocery store aisles. It's like the laziest form. It's
literally the least you can do.
Speaker 4: It is true to protest, like we remember, literally we remember,
we remember those people that were trying to block the
road and the tribal the tribal police right came in
and showed no mercy, like they didn't care about just
ripping your arms apart, right and getting thrown in a
hot paddy wagon.
Speaker 3: Right, can you say paddy wagon patty. I don't know
if that makes it better, but it used to be
the d d Why yeah, but the tea. Now you
get hamburgers, you get that peppermint patty.
Speaker 1: Okay, it's a food.
Speaker 2: But that thing they failed it resistant.
Speaker 1: Right, because I think they got so trained with the
laziness of the protesting that they because it's like you
and I have talked about this too. This is theater
kid LARPing, Oh awful. So much of all the protesting stuff.
It's like, I'm so done with it. Like you guys
aren't even good at it. It's not entertaining anymore. You're
just screaming. You have no coherent message, and you just
do these dyings. You're laying down on the ground. It's
like you're just getting lazier and lazier and lazier. And
so when you actually were trying to quote resist, yeah
it you you didn't have any mojo, no not, you
got flabby nothing resistance to pressure build strength.
Speaker 2: Right.
Speaker 4: Look, Wayne Static of Static Acts famously sang a song
and it was he's a loser, okay, And that's this
is a law, this is a this is the let's
be honest here, this is their lost cause. Yeah, that
they are the lost cause, right, because they were not
able to stop I mean Hitler.
Speaker 1: They couldn't stop Orange Hitler.
Speaker 2: That's right, Orange Hitler. I mean you're right.
Speaker 1: And think about think about all of the cards that
they hold yes and held yes and and really at
the pinnacle of their power, which then, of course, as
they're trying to squeeze it harder and harder to maintain it,
it just slips through their fingers. You know it's they
have the institutions, yep, the intelligence community, the alphabet agencies,
you got social media, you got legacy media. Like you
have all of this institutional power, right, and you still suck.
Speaker 4: I'll bet you not, not really bet you, but I
would be willing to go this far. We could open
air a plan for a protest in some park someplace
with absurd causes whatever. Actuality no, but like we want
to ban band aids because it's choking you know, fish
something like.
Speaker 1: That, lastic in the plastic right, all.
Speaker 4: That sort of and we could do that all live
on on the radio, and people would show up to protest,
because people just like to be part of a thing.
Speaker 2: Yeah, we're rugged individualists.
Speaker 1: Well and also like, I mean, you got a lot
of dudes and they're going there for the for the ladies.
Are they really the I mean I think some of
them do. Yeah.
Speaker 2: I think I thought it was I thought we deconstructed gender.
Speaker 1: Well, I think they. I think what has happened though,
is a lot of guys and look, David Hogg talked
about this, yeah, right with Bill Maher and then he
got fired from the DNC. Unbelievable, And he said like
they're going to hang out with the ladies trying to
get lucky. He didn't say that, but that's what he said. Like,
and everybody's all outraged about it, but like that is
a part of it. When you're young and there's this
energy around a movement and you see a couple of
girls in your class at college, they're like, yeah, we're
gonna go you know, some paint on some furs or something.
You're like, okay, I'll join you.
Speaker 2: Look what was what was Woodstock?
Speaker 1: Yeah, but the problem for now is that when they
show up to these events, they're like, oh, you're like
a white cis dude, get the hell out of here.
Speaker 4: But they also don't know how to have a conversation.
Now that's like, like, honestly, I would Sackri all day
every day looks for intellect because intellect is going to
go way further for you in an interesting conversation.
Speaker 1: Well yeah, because if it's just looks, then you're just
like staring at the person I'm saying.
Speaker 2: Right, people are like, oh, yeah, just go go. You
don't know anything about that person, what do you what
are you doing?
Speaker 1: Yeah? No, it's true. So yeah, I just think it's
nice that finally, this is great. The truth can be told,
They can be told that this was all part of
the resistance, and we you and I have known this.
It's sort of like recognizing, you know, Joe Biden's mental decline.
What did you hear that? Jake Tapper has a PR
crisis firm? Now he does? He does his book launch
is going so well, Oh.
Speaker 2: My gosh, Oh my gosh.
Speaker 1: No, he had to get yeah, he had to get
a crisis firm to help whip the marketing. And the
response that that's a really good question. Probably well, I
don't know. I was gonna say no, but now I'm
not so sure. They might be all right. That'll do
it for this episode. Thank you so much for listening.
I could not do the show without your support and
the support of the businesses that advertise on the podcast,
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patron at my Patreon page or go to thepetecleanershow dot com. Again,
thank you so much for listening, and don't break anything
while I'm gone.