SCOTUS to America: "You Deal With Him"
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Hey folks, Preet here. Joyce Vance and I are back with a new episode of the Insider Podcast. First, we discuss the Supreme Court ruling limiting district judges' power to issue nationwide injunctions and the ACLU's class action suit challenging the underlying birthright citizenship issue. Then we break down the Justice Department's lawsuit against all 15 federal district court judges in Maryland over an order pausing deportations in the state.

Finally, we turn to a whistleblower complaint accusing one of Trump's top DOJ officials and now a judicial nominee, Emil Bove, of disregarding court orders and directing staff to do so as well. If you're a member of Cafe Insider, head to the Insider feed or click the link in the show notes of this podcast to hear the full analysis. Stay tuned, listeners. Stick around for an excerpt from our conversation.

Members of Insider help support our work and get access to full episodes and other subscriber benefits. Head to cafe.com slash insider or staytuned.substack.com. Now, on to the show. So the biggest legal news probably is the Supreme Court decision, 6-3, get used to it, that has as its underlying issue, but it is not the issue that's been decided, which can be confusing to people, but has as its underlying issue,

the status of birthright citizenship under the 14th Amendment to the Constitution. And everyone seems to agree, as we've discussed many times, that the Constitution, from time immemorial to when that provision was adopted, prescribes birthright citizenship. The Trump administration put out an executive order like five minutes after his inauguration that says their interpretation of birthright citizenship

does not include people who were born to people who are here illegally or are here in the country temporarily. But that's not the issue that was front and square for the Supreme Court, right, Joyce? The issue is whether a district court, you know, the trial court level, the lowest court in our three-tier system, in deciding the issue, could enjoin, meaning stop, other jurisdictions from interpreting birthright citizenship the way the Trump administration says they should. And so the issue is one, and it sounds...

kind of in the weeds and nerdy, but it's very, very important for people and their rights and democracy in general. The question of whether or not a sitting district court judge, you know, that presides in one district can issue something that enjoins

So what's fascinating to me about this case is how skillfully and successfully the government, the Solicitor General's office, actually cut out the substantive birthright citizenship issue that, you know, everybody except maybe the government seems to think is a loser. Certainly, if you can read the Constitution, it looks like a loser. But it's not.

But the government used this case as a vehicle for something entirely different, for getting this ruling on nationwide injunctions that will apply not just in the birthright citizenship case, but that they will then go out and attempt to use in all sorts of other cases where federal judges have issued temporary injunctions. So if you're grading the Solicitor General in the Trump administration wrong,

on the skillfulness of their procedural ploy here, they would get really high marks. I mean, this was a, I don't want to say devious because that has negative connotations, but I'll say it anyhow. This was a devious use of the effort to get the court to hear an issue

that really, to be honest, people on both sides of the political divide have long urged the court to hear. But what's very interesting to me is that the court let the government get away with doing this devoid of that factual context of birthright citizenship. And that, I think, is a jumping off place for this discussion. Do you think that's in part because the birthright citizenship, the merits argument,

that underlies all this is a dead-bang loser? You know, if you had asked me that question two or three years ago, I would have just laughed and said, of course it's a dead-bang loser. The problem is we now live in a world where Donald Trump sometimes prevails on the dead-bang losers, like he did with presidential immunity. And so what worries me is I look at this situation and I think about the situation when Texas...

passed its vigilante justice bill that allowed people to go after women for obtaining abortions, which was crazy, right? Because Roe versus Wade was still the law of the land, and every Supreme Court justice from time immemorial had promised in their confirmation hearing that Roe was super precedent, that couldn't be disturbed.

And yet Texas was suddenly going to be allowed to go after these women or really the people who helped them obtain abortions. And that was very much foreshadowing of what happened later that term in Dobbs when the Supreme Court stripped Roe versus Wade out from underneath American society. You know, I look at this case and I think,

why would you permit the administration to keep this injunction on birthright citizenship? Well, really, why would you permit this administration to follow Donald Trump's executive order on birthright citizenship?

for this injunctive period if you weren't going to go ahead and say it was okay. Now, look, before we get too carried away with that argument, which I think some people have, it's important to note that the court issued this 30-day ramping up period before the executive order will go into effect. And a lot can happen in 30 days, like class action certifications and some of the other relief that the Supreme Court seemed to think would be available to plaintiffs. So,

It's unclear how this all plays out and what the court has in mind, but I think it's really disturbing that they did it in this particular case. They could have done it in so many others with far less consequences. I mean, imagine being a pregnant woman right now with this question in front of you about your baby's citizenship. This is a decision that really inflicts real harms on real people.

Yes, I'm going to take your response and ask the question that's implied by your response. And that is, given that it's the case, in fairness, we have to say that nationwide injunctions have been the bane of both sides, progressives and conservatives, Democrats and Republicans. In the Biden era, there was a nationwide injunction relating to Mifepristone, the Biden administration didn't like, one relating to student loans, which the Biden administration didn't like, and others. And some of the arguments...

that we see the Trump administration make some, not all, and not with the same gamesmanship and gambit. But some of the arguments are ones that were made by the Biden administration, because depending on what the policy issue is, you don't want it to apply to the whole country and you want to be able to battle further in other jurisdictions, maybe create a circuit split, some difference of opinion that can be resolved by the Supreme Court. So what is your theory or hypothesis as to why now, after decades of litigation over nationwide injunctions,

Did the Supreme Court say, this is the case?

where we must stand strong and vote those down. Yeah, so my theory is that there was a six-vote majority, or at least five votes to take the case, six votes to decide it. And look, this is a controversial issue. If you were trying to put the best legal face on it, you would say, "This question of nationwide injunctions is a case where we're discussing the power of the executive branch versus the power of the judicial branch."

And neither branch wants to be too aggressive. They both want to have their own way when these disputes come up, but they don't want to do so at the cost of upsetting the constitutional balance of powers that's laid out in Article 2 and Article 3. And so that, I think, is the nicest way we can look at this. But in reality, if we go in context, this is a president that hasn't made any

any effort to conceal the fact that he's interested in aggrandizing more and more power into his own hands. And that's ultimately what this is about. This is about an executive who is saying, anything that I do by executive order should go into effect, whether it's constitutional or not. No one should be able to go into court and press pause against even the most egregious violations of the Constitution committed by this president.

And that, I think, casts this decision into a very disturbing light. Were you surprised at all that it was Amy Coney Barrett who both sided with the majority and wrote the opinion given the oral argument? And so maybe I have a distorted view that is not correct in the weeks and months since that oral argument. But I remember listening to it and hearing Justice Barrett being, you know, a little bit suspicious of and skeptical of some of the government's arguments.

She said, you know, in a way that seemed to make some common sense to me, that what does it exactly mean to enjoin someone or not enjoin someone? In other words, if we say that a governmental entity can't do something or some party can't do something generally, and that has the incidental effect of aiding and giving relief to people outside of that jurisdiction, what's wrong with that? And that seemed to make sense to me.

But that's not how she came out. Did you have any thoughts about that? It's not. And I think, you know, as we so often hear the justices doing, she was testing out ideas in oral argument, maybe in some sense playing devil's advocate. Thanks for listening. To hear the full episode, become a member by heading to cafe.com slash insider or staytuned.substack.com.

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