“the supreme judicial law of the land, at least in District Courts for the past four months, has been whatever Biden did, Trump can’t undo”

“the supreme judicial law of the land, at least in District Courts for the past four months, has been whatever Biden did, Trump can’t undo”

I was happy to appear on the Tony Katz radio show earlier today to talk about the Supreme Court granting a stay as to a district court order preventing the Trump administration from terminating the “temporary” program that brought half a million Central and South Americans to the U.S. We also discussed the event we held as to whether there was a “Constitutional Crisis” and the role of Chief Justice John Roberts in twidding his thumbs while the judiciary burned.

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Partial Transcript (auto-generated – may contain transciption errors, lightly edited for transcript clarity)

Katz (00:35):

Live from the heartland and the crossroads of America. It’s Tony Katz. Today,

The Supreme Court is making moves, but as one could expect, Sonya Sotomayor and Ketanji Brown Jackson aren’t a part of them. Tony Katz. Tony Katz today, good to be with you. The Supreme Court ending the humanitarian parole. This extended to 500,000 people, from Cuba, Haiti, Nicaragua, and Venezuela, CHNV as it was referred to. And it allowed them to stay in the country if you were from, these places. Then President Trump said, we don’t want to do this anymore. And the court said, well, you have to do it now. You have the Supreme Court in a seven-two decision, allowing Trump to well do his job, which is really the story.

William Jacobson joins us right now, Cornell Law professor from legalinsurrection.com. You guys have the story up there, Supreme Court Grant stay allows Trump to end Biden’s parole program for illegal aliens. Gimme the quick synopsis here. This just has come out today and what this means to you.

WAJ (01:45):

Right. This came out I think within the last hour. And basically what it says is, Biden, as part of his Open Borders policy, bringing in as many people as he physically could, granted temporary protected status to half a million people. And I believe he even paid for the, we paid for the flights, brought them here from the countries that you mentioned, mostly Central and South America. And it was supposed to be a temporary program.

Now, what we know is the supreme judicial law of the land, at least in District Courts for the past four months, has been whatever Biden did, Trump can’t undo.

So a district court in Massachusetts says, nope, you can’t stop it. You can’t terminate it. If you’re going terminate people, their protected status, you have to do it case by case, which is of course, a joke.

How are you going do half a million cases? So that was the issue. Can Trump terminate the supposedly temporary special status, protected status given to half a million people who the Biden administration flew here? Or do they have to go case by case, which you mean it’s impossible. You can’t do half a million individual cases and the Supreme Court put a stay on that.

We didn’t get an opinion from the court. They just granted the stay. But we did get a dissent from the two usual suspects. Sotomayor and Jackson. I haven’t had a chance to really read through the dissent. It was actually a Jackson dissent. She’s now the Dissenter-in-Chief, joined by Sotomayor.

The Supreme Court hasn’t come fast enough, but increasingly is issuing these stay orders when district courts go off the rails. I mean, on what basis did the district court decide that something that’s temporary is now permanent and something that was en mass bring 500,000 people here, but to get them out of the country you now need to give them essentially individual trials or individual determinations. You just made that up.

And so that’s been the problem with the district courts, is they’re going way beyond their authority and they’re essentially implementing policy goals. A Judge doesn’t like this policy to send people back home and therefore finds a way to stop it.

Katz (04:20):

So this is part of what Congress is now looking at. Can they engage legislation that will stop these nationwide injunctions taking place. This has gone on as part of a conversation you’ve been having. You had it with fellow radio host Jesse Kelly the other day, What’s going on at the Supreme Court is that not enough is going on, which is your conversation about how the Chief Justice could do something about this, which leads to then a part two, but let’s go to Chief Justice John Roberts. because we know that Justice Ketanji Brown Jackson is very fine with the nationwide injunctions. She said as much in one of the decisions,in her A and A about the one of these cases. Why can’t we let these lower court just judges do this and then let its work its way up the system, everything slows down. Isn’t that good? She’s in favor of the lawfare. That’s the argument as I take it.

What is going on at the Supreme Court and why, what is it that you think Chief Justice John Roberts should be doing?

WAJ (05:21):

I think that the Chief took things too slowly and very early on, I think it was in February, he said, you know, let the system work. Let things work their way through the appellate system, and it’ll work out.

The problem with that is that Democrats are not interested, or at least the people challenging these programs and various actions are not really interested, in the ultimate outcome. They’re interested in eating up the first two years of Trump’s term before the midterms. They’re hoping they can get back the House.

So working through the system, when a district court judge interferes with the executive branch’s powers, and it takes 2, 4, 6, 8 months to get that undone by a higher court, that’s accomplishing what the Democrats want. They actually don’t care about the outcome. They care about freezing the administration.

A perfect example was that a couple of days ago, a district court judge in the Southern District of New York finally said, DOGE can have access to the Treasury Department payment systems, subject to conditions, subject to the people doing it getting certain trainings and certifications, as if that’s up to the district court. Since when our district court judges the experts on computer security, that they’re telling people what sort of certifications they need?

Put that aside, that was a case that came down in early February, and it was one of the first and most outrageous cases where, in part of the anti-Elon Musk fervor and part of this effort to disrupt the administration, at 10:00 PM on a Friday night, I think it was the second week in February, 10:00 PM on a Friday night, a bunch of groups ran in with their hair on fire to the Southern District of New York at 10:00 PM on a Friday night, knowing that they would get the emergency judge. So they knew which judge they would get. It’s basically judge shopping. Rather than filing it at 3:00 PM in which case they get a random judicial assignment from the clerk’s office, they file it at 10:00 PM and say, we need an immediate injunction because DOGE is going to pilfer information, expose people’s personal finances, et cetera, et cetera. None of that actually was true, but that’s what they told the court.

And that judge, without even giving the government a chance to respond, issued an order at 1:00 AM on a Saturday morning essentially decapitating the Treasury Department, saying no political appointee can have access to these payment systems. Only career employees can have access. So basically the bureaucracy runs the Treasury Department, not actually the Secretary of Treasury.

That that was an outrageous decision. It was scaled back by the Judge who, Judge Vargas, who now has the case because what the emergency judge is just for emergencies. And then you get assigned. And she scaled it back the following Tuesday, but left a lot of it in place, which she’s now withdrawn completely. But that’s 90 days later. That’s three months later.

You know, Elon Musk’s service was limited to 130 days with DOGE because he was a special government employee? So that, that delay ate up most of Elon Musk’s time in government service. Of course, he did things other than the Treasury Department. But that’s the point here.

These two, these three, these four month delays, or even three week delays, this is giving the Democrats who are seeking obstruction and to freeze the executive branch exactly what they want. I think some of the district court judges know the game,

Katz (09:21):

Talking to William Jacobson, Cornell Law professor, the mind behind the legalinsurrection.com.

All of this brings us to an event you did earlier this month, in May, Constitutional Crisis, Article II versus Article Three, article two being the executive, article three being the judiciary. It was you, it was a fellow law professor out of Tennessee, Glenn Reynolds, Will Chamberlain and Kemberlee Kaye, who is your managing editor, is a fantastic woman in her own rights. And you guys were breaking down that, is this really constitutional crisis. Is this the judiciary trying to usurp the authority of the executive solely predicated not on the law, but on ideology. What is it that you, and people could go back and watch it and I commend them to do so at legalinsurrection.com? What is it that you kind of came to, if there was a consensus conversation?

WAJ (10:19):

Well, the first one was on the term “constitutional crisis.” I think we all agree it’s overused. It’s mostly used in the media and the political sphere when Democrats don’t get what they want. Literally, that is the constitutional crisis, that Democrats did not get what they want from the court system, and therefore it’s a constitutional crisis.

So we talked about that, how it’s an overused term, but there is a real problem there. And the real problem is that the judiciary has been weaponized against the executive branch. So Article three has been weaponized against Article two, the executive, in ways that go far beyond judicial review. Judicial review is a judicially created doctrine that’s governed us for 200 years. It’s not in the constitution. The Constitution doesn’t say Article three supervises Article two, but that’s been our norm. That’s how we’ve done it.

But judicial review is one thing. Judicial micromanagement is a different thing. And that’s what we’re getting.

We’ve been getting judicial policymaking, we’ve been getting judicial micromanagement, we’ve been getting judicial injunctions telling the executive department who can do what, who can they hire,  who can they fire, who has access to computers. None of this is normal. This is not normal judicial review. This is really Article three usurping the powers of the executive branch.

And of course, we know why it’s happening, because the judiciary, at least in the districts in which these cases are being brought for the most part, are hostile to Donald Trump. Not all of these judges have been Biden appointed judges, but a disproportionate number have been Biden appointed judges, not all of them. And so you’re getting policies and you, you see opinions which start in the first page of the opinion is like a political manifesto about how bad it is, what’s happening and things like that. And basically their, the opinions read like opinions in search of a pre-thought out conclusion. And so that’s really what the problem is.

That is a crisis because at some point the executive branch is going to  say, we’re not doing what you say. We’re not there yet. And that’s kind of the thing overhanging everything is at what point, how outrageous does an order need to be by a district court judge? How threatening to national security does it need to be in order for the executive branch to simply say, we’re not doing this.

And then I don’t know if that’s a constitutional crisis, but it definitely would be a crisis if that happened. And so basically, I think the consensus is what’s going on is really bad, and it’s heading us in a wrong direction. And John Roberts, you know, Mr. Procedure, Mr. Let the System Work, is twiddling his thumbs while the judiciary burns.

Katz (13:30):

…. It’s to this idea that just because the court says something there, they have no enforcement mechanism. The enforcement mechanism is we are believers in the Constitution, actually engaging in decency while those who are engaged in activism don’t, does the constitutional crisis exist as you are bringing up these potential issues, which will come sooner rather than later when a president says, yeah, I’m not listening to that. That’s insane. I have to be able to do my job.

WAJ (14:18):

Well,  I don’t know where we are on that pathway. And certainly this is not the first time that presidents have been unhappy with what the court system rules. But I think the important thing here is that these are district courts who are doing it. It’s so far not been the Supreme Court, And the Supreme Court, while it’s been slow to act, way too slow to act, mostly has been reaching the right decisions on these stay motions.

They know John Roberts has to know because he reads the newspaper like everybody else. He listens to TV, he’s on the internet, I’m sure as well as everybody else. He has to be able to sense the frustration that’s growing. And it’s not a frustration with correct judicial decisions. It’s a frustration with incorrect judicial lower court decisions, which have far exceeded their jurisdiction.

So, for example, there are many cases where judges have issued injunctions against termination of grants and things like that. In part, those are procedural decisions, but in part, they’re substantive decisions. Well, if you believe the government breached its contract with you, your remedy is to go to the Court of Claims and file a money claim against the government. And if you win, you win. You don’t have the right to go to the district court and say, enjoin the government from terminating my contract. And that’s a contract claim at, at essence. And that’s what’s been happening. A lot of judges, and this came up in the oral argument the other day about, these nationwide injunctions where multiple justices, and I think the counsel too said, there’ve been, I think 40, that’s a ballpark number, 40 nationwide injunctions issued by the district courts since Trump took office for 2.0. And 35 of them come from just five judicial districts.

So why are we getting all these cases filed in the District of Rhode Island? A district nobody ever really hears about, because they believe they have favorable judges there. District of Massachusetts, the one that the Supreme Court just put a stay on, from the district of Massachusetts.

So what has happened is forum shopping, Republicans do it too. I think it was Kagan said during the oral argument that, hey, you know, Republicans go to district courts in Texas and these people are going to other district courts, and they’re basically all judge shopping. And that’s all true. But it’s one thing to judge shop and get a favorable decision. It’s another thing to judge, shop and get a temporary injunction, which is basically not appealable, in some cases ex parte where the government doesn’t even get to be heard, which freezes the executive branch.

So it’s a totally different sort of outcome for judge shopping when the Republicans did it in Texas. UAnd in fact, in many of those cases, as I recall, the district court judge him or herself issued a stay of their injunction in order to give time to appeal. And that’s the right thing where you’re doing something dramatic, something that calls into question executive branch or legislative, you know, action. You give the other side 10 days to appeal. These judges aren’t doing that. They’re denying stays, they’re forcing the government to go to the appeals court and then up to the Supreme Court again. When a judge won’t even give you a five day stay of his order or her order in order to give you time to appeal. that tells you this judge is motivated, perhaps not in the best way.

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