May 16, 2025 • 24 mins
-
Donald Trump's Executive Order on Birthright Citizenship:
- The order seeks to deny U.S. citizenship to children born on U.S. soil to undocumented or temporary-status immigrants.
- This executive action challenges the traditional interpretation of the Fourteenth Amendment.
- Multiple federal judges have blocked the order, citing it as unconstitutional.
-
Nationwide Injunctions:
- A central legal issue is whether district court judges have the authority to issue nationwide injunctions—rulings that apply across the entire country.
- The Trump administration argues these injunctions are overused and politically motivated, undermining executive authority.
- The Supreme Court is not yet ruling on the constitutionality of the executive order but is considering the scope of judicial power.
-
Oral Arguments and Judicial Reactions:
- Justices, including Kavanaugh, Jackson, Kagan, Barrett, and Roberts, posed probing questions about the practicality, legality, and implications of the executive order and nationwide injunctions.
- Concerns were raised about enforcement, potential statelessness of children, and the broader impact on judicial integrity and public trust.
-
Interview with West Virginia Attorney General JB McCuskey:
- McCuskey discusses the amicus brief filed by West Virginia and the American Center for Law and Justice (ACLJ).
- He argues that nationwide injunctions are unconstitutional and harmful to judicial credibility.
- He emphasizes the need for proper legal channels, like class action lawsuits, instead of broad injunctions from single district courts.
- McCuskey also reflects on the historical and constitutional foundations of judicial authority under Article III.
-
Political and Legal Implications:
- The conversation touches on the concept of lawfare—using legal systems to challenge political opponents.
- McCuskey warns against undermining the judiciary’s independence through strategic forum shopping and overreach by lower courts.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
It is a major day at the Supreme Court, and
I am live literally at the Supreme Court, staring at
it as we speak, as the court is hearing major
arguments on multiple different cases. Now in a moment, we're
going to be joined by the Attorney General of West Virginia,
who is talking about these district courts that have gone rogue,
putting nationwide injunction on Donald Trump many are describing in
(00:23):
his lawfare. But before we get to that, the Supreme
Court also heard arguments in the case over Donald Trump's
birthright citizenship order.
Speaker 2 (00:32):
The Supreme Court.
Speaker 1 (00:34):
Hearing the first set of Trump related arguments in the
second Trump presidency. Now, this case stem from the executive
order that President Trump issued on his first day in
office that we deny citizenship to children born on US
soil to parents who are in the country illegally or temporarily.
The executive order marks a major change to the provisions
(00:56):
of the Fourteenth Amendment that grant citizenship to people born
in the United States of America with just a couple
of exceptions. Immigrants rights groups and many liberal states sued
almost immediately to challenge the executive order of President Trump.
Federal judges have uniformally cast doubt on Trump's reading of
(01:17):
the citizenship cause, and three judges have blocked the order
from taking effect anywhere in the US, including US District
Judge John Kojinnar.
Speaker 2 (01:27):
I've been on the.
Speaker 1 (01:27):
Bench for over four decades, he said, I can't remember
another case where the question presented was as clear as
this one. This is a blatantly unconstitutional order, the judge
said at a hearing in his Seattle court room. Now,
the Supreme Court is taking up an emergency appeals filed
by the Trump administration, asking to be able to enforce
(01:50):
the executive order in most of the country at least
while the lawsuits over the order proceed Now, the constitutionality.
Speaker 2 (01:59):
Of the order is not before the court just yet.
Speaker 1 (02:02):
Instead, the justices are looking at potentially limiting the authority
of individual judges to issuing rulings that apply throughout the
entire country. These are known as nationwide or universal injunctions,
which I mentioned earlier. Now, Trump's Solicitor General wrapped up
his opening and his challenger stepped up. That's when Justice
(02:24):
Kavanaugh pressed with a series of questions about exactly how
the federal government might enforce Trump's order. Quote what do
hospitals do with a newborn? What the states do with
a newborn?
Speaker 2 (02:36):
He said.
Speaker 1 (02:36):
This solicitener General said they wouldn't necessarily do anything different,
but the government might figure out ways to reject documentation
with quote the wrong designation of citizenship. Kavanaugh continued to
press for clear answers, pointing out that the executive order
only gave the government about thirty days to develop a policy, saying, quote,
(02:59):
you think they can get it together in time.
Speaker 2 (03:02):
Justice brown Jackson.
Speaker 1 (03:04):
Appeared deeply skeptical of the Solicitor General's arguments as well, saying, quote,
your argument seems to turn our justice system, in my view,
at least into a catch me if you can, kind
of regime where everybody has to have a lawyer. Now,
the new Jersey Solicitor General stepped up to make his
case after the justices. Pepper the Solicitor General with questions.
(03:26):
He is arguing on behalf of the states that say
they'll lose millions of dollars in benefits available to US
children and also have to overhaul identification systems. He also
asserted in his opening that the post Civil War nation
wrote into our Constitution that cyszens the United States and
of these states would be one and the same without
(03:50):
variations across state lines. The new Jersey Attorney General told
the justices that judges should be able to issue orders
that affect the whole country, but only in narrow circumstances.
Roberts jumped on that last point, asking him to elaborate
on why they should only be used sparingly, a question
(04:10):
that could be a clue as to how the Chief
Justice Roberts is thinking about the issue now. Justice tried
to pin down the solicitor General's argument. Justice Kagan, by
the way, cut to the heart of the case by
asking the Solicitor General that if the Court concludes Trump's
order is illegal, how the nation's highest court could strike
(04:31):
down the measure under the administration's theory of court's limited power,
Saying this, does every single person who is affected by
this executive order have to bring their own suit Atlanta?
Kagan asked how long does it take? And the Solicitor
General tried to answer. Several of Kagan's colleagues, along with
(04:51):
the Justice, jumped in to say they didn't hear a
clear way the court could swiftly ensure the government could
not take unconstitutional action Roberts tried to help by jumping
in to note the High Court has moved fast in
the past, concluding the TikTok case in just one month.
The Solicitener General, are you going to answer Kagan by
(05:13):
saying there is no way to do this expeditiously? That
is what Cony Barrett asked, and Barrett continued by saying
this whether a class action lawsuit could be another way
for judges to issue a court order that could affect
more people. He said the administration would likely push back
on efforts of people to bind together for a class
(05:35):
action lawsuit, but that it would be another way for
cases to move forward. Justice Alito pointed out that multiple
states have also sued over the birthright citizenship order and
one broader victories. The Trump administration is also arguing that
states shouldn't have to be able to do that, but
(05:55):
the Solicitor General sticks to his point about the nationwide injunction,
saying they yield quote all these sorts of pathologies. Soto
my Oar returned how Trump's order could affect people's saying
it for some babies, it could render them stateless. Justices
Pepper Trump's Solicitor General with questions and oral arguments, arguing
(06:17):
first that the Solicitor General and the government's top attorney
before the Supreme Court saying, if you have a child
that is literally without a state to call their own,
what does that make them? Now, this is obviously a
very complicated issue. It's also an important one, and it's
one that deals with nationwide injunctions because they have become
(06:40):
especially frustrating for the Trump administration as opponents of the
president's policies have filed hundreds of lawsuits challenging his flurry
of executive orders.
Speaker 2 (06:50):
Why are they doing this?
Speaker 1 (06:52):
They're making it very clear, it's law fare, and they
want these judges in friendly districts and friendly courts in
liberal parts of America to do the nationwide injunctions to
stop everything that the president's doing. The argument that the
president's making, and many of those that were in the
courtroom on his behalf, is that he has the right
(07:12):
to be the president of the United States of America
and the right to executive orders, and every single one
of them should not be challenged and overturned by a
judge that is in a district. Now, President Trump pressed
for restrictions ahead of these arguments at the Supreme Court.
President Trump is weighing in and he said this granting
(07:33):
citizenship to people born here, long seen as a constitutional promise,
makes the country look stupid and like suckers. Now President
Trump's executive order at the heart of today's case really
aims at ending what he has described as a loophole
in birthright citizenship for children born to people in the
US illegally, something that many legal scholars are fighting back
(07:57):
saying would require amending the Constitution. This is going to
be a very important case moving forward. Now, if I'm
reading the tea leaves here from the Supreme Court, I
can tell you this. I think this is going to
be an uphill battle for the present. This conversation that's
extremely important, and that deals with the issue of these
(08:17):
activist judges cherry pickings certain things and going to liberal
courts making sure that nationwide injunctions come in on countless
executive orders. That brings me to my next guest, who
is the Attorney General of West Virginia, JB.
Speaker 2 (08:33):
Mccusky.
Speaker 1 (08:34):
He was in the Supreme Court and filed an amaricus
a brief along with the ACLJ about how important it
is that these nationwide injunctions from halfway across the country
by these district judges do not actually take away the
rights of the American people.
Speaker 2 (08:51):
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Speaker 2 (10:46):
The Supreme Court.
Speaker 1 (10:48):
Had a very busy day on Thursday, and one of
the most consequential cases involving the Trump administration.
Speaker 2 (10:56):
It was heard in front of the Supreme Court.
Speaker 1 (10:59):
Now, my former roommate, you don't get to say this
every day, is also the Attorney General from West Virginia.
We were together actually on Capitol Hill. I'm staring at
the Supreme Court right now, and he was in the
Supreme Court today for this important, this.
Speaker 2 (11:15):
Major case on judges power.
Speaker 1 (11:17):
And I want to go to you, JB on this
so that you can explain how all this started. In essence,
you had judges that were making decisions that were covering
the entire country. And the argument is, maybe that's not
how it's supposed to be on these local levels or
these these smaller court battles, and this is what this
(11:38):
is all about.
Speaker 3 (11:39):
Yeah, I think you what you just said there makes
a lot of sense. This is a national issue that
was to solve that was decided or attempted to be
decided by a district court judge. And so what happens,
and this has been happening a lot, especially very recently
within the last thirty years, and that's a bipartisant problem then,
is that district court judges are in joining presidential decrees
(12:02):
right and saying what the president has done is not
just illegal in my courtroom, but it's illegal in the
entire country. And our process is set up differently than that.
Our district court judges are supposed to hear cases that
are in front of them and make decisions for the
plaintiffs that are in front of them. Here, several interest
groups in several states sued in a I'm going to
(12:25):
just say a friendly jurisdiction, which is how this works,
as you find a judge that is ideologically aligned with
you and you get them to enjoin an entire action.
That happened in this case in New Jersey. And so
a New Jersey judge then decided for all other of
the six hundred district court judges and all of the
circuit judges, and ostensibly for the Supreme Court whether or
(12:46):
not a presidential order was constitutional. While we did not
get into the underlying facts of this case today, ben
what the Supreme Court was hearing, and what our brief
described was the reasons why this is both unconstitutional and
a bad idea. So, for one, both the history of
our courts as you look back into the courts of
(13:07):
Chancery in England, as well as Article three, which was
written to delineate the powers of our courts, indicate that
circuit judges do not have the authority to issue nationwide injunctions. Further,
our brief gets into the idea that there is a
remedy here, and the remedy is is that if you're
looking to have a district court make a decision for
(13:29):
a large number of people, you have to go through
what's called a Rule twenty three and create a class action,
so then the court knows who the plaintiffs are that
they're trying to address a problem for. And fourth, and
maybe most importantly is that district courts and our federal
court systems, they are life tenured for a reason, and
(13:49):
that is to eliminate the stench of politics from the
benches around the country. And when you do forum shopping
and you start to use these universal injunctions in these
sort of weaponized ways, what you then will find, I
believe and our brief delineates that the confidence that the
public has in the independence of our judiciary will go
(14:13):
down very quickly. And that is the single most important
branch for the public to have confidence in, because it
is their orders and it is their writings that tell
every American how the Constitution is being interpreted as it
relates to the laws that apply to them. So this
is a really big case. We feel really really good
about our briefing. The people in West Virginia joined with
(14:36):
a group called the American Center for Law and Justice
in this briefing, and we're very hopeful that the Court
will use our amicus to guide them into what I
believe is a proper decision, and that is the district
courts lack the ability to adjoin the entire country as
it relates to presidential executive orders.
Speaker 1 (14:54):
So let's talk about the amicus brief and break that down.
The goal of an amicus brief, And people that are listening,
my guess with me is the Attorney General from West Virginia, JB.
Speaker 2 (15:03):
Mccusky.
Speaker 1 (15:04):
I want a dear friend of mine, former roommate, and were,
as I stare at literally at the Supreme Court right now,
you just left the Supreme Court where you guys filed
this amicus brief with the ACLJ. What is the goal
of an amicus brief for people that maybe don't understand
that terminology, maybe they've ever heard it before, And specifically,
what did you guys put in that amicus brief that
(15:26):
you're hoping that the justices will get from it and
read from it on this case.
Speaker 3 (15:31):
Yeah, So, an amicus brief is in Layman's term, it's
called a friend of the court brief, and so what
its purpose is is to help the justices as they're
making their decision with parties who have an interest in
the outcome. And in West Virginia, the interest in this
outcome comes from this widespread, weaponized use of nationwide injunctions.
We just saw within the last week a nation a
(15:53):
wide injunction out of the state of Washington that will
stop President Trump's executive orders on the use of coal
and lower electricity rates for Americans and putting West Virginia
coal miners back to work today in order to meet
our nation's energy needs. And so for us, these nationwide injunctions,
when you're a small rural state, they are never going
to be the forum that gets shopped into right. They're
(16:14):
never going to ask real patriotic Americans like they are
in West Virginia to answer these questions. They're going to
go to places where it's a little different. And so
we have a huge interest in ensuring that the process
plays out in nationwide injunctions to make sure that these
the President's executive orders as they relate to the economy
and the people of West Virginia are upheld and if
(16:35):
they are found to be unconstitutional that they go through
the proper channels. And that is what our brief says.
Our brief says that it isn't that the plaintiffs don't
have any options. Our brief says the options that they
chose are not available to the court that made them.
So they needed to have gone through what's called a
rule twenty three, as I just said, and explain to
(16:56):
the court why they have a class of plaintiffs that
have a similar need for this same kind of relief,
and then the court can order that those people get
that relief. And then if another district court or another
circuit court comes to a contrary conclusion, then the Supreme
Court can use that. The Supreme Court's power generally comes
(17:16):
from when they are deciding between circuits that have a
different interpretation of the law. And in this instance, they
circumvented that entire process by getting one single district court
judge to speak for the entire country. And that is
not allowed under Article three. And it's a really bad
idea in terms of public confidence and the independence of
our judicial branch.
Speaker 1 (17:38):
Is it fair to say that the mechanism that's being
used by the left to go and find these friendly
judges and friendly courts to do this. Is this a
version of lawfare where you say, we don't respect the people,
we don't respect their vote, we don't respect who they
chose as their leader, which this time happens to the
President Donald J.
Speaker 2 (17:58):
Trump.
Speaker 1 (17:59):
And so therefore we are going to use lawfair to
stop the will of the people and what they voted
for and what their leaders that they voted for, who
won in a free and fair election are trying to do.
Speaker 3 (18:11):
Well. I hesitate to use the word lawfare here, Ben,
because we do the same thing occasionally when there's Democrats
in the White House. And it's not that we have
a problem with challenging federal government edicts. Right, We as
Republicans are constantly finding ways that the federal government is
overstepping its bounds, and we use the courts in order
to rain them in like in West Virginia versus EPA.
Speaker 2 (18:34):
Right.
Speaker 3 (18:34):
So it isn't that this is It isn't lawfare as
you describe it, because we need the option to be
able to do this too. It is the kind of lawfare,
right it is.
Speaker 2 (18:44):
It is this.
Speaker 3 (18:46):
Novel concept that you use a single friendly district court
to do what is supposed to be the job of
the entire judiciary. Right, there's a reason why our system
has set up the way that it is. And I
personally believe as an originalist that the the factual scenarios
surrounding the reason why somebody's asking for something shouldn't change
(19:07):
the fundamental role and the rules that surround our court.
And that was really in essence, the main part of
this argument is should we break the rules because this
is important and my personal opinion is is that is
not true. We should maintain the constitutionally granted powers that
(19:29):
exist in our district courts and allow the system as
it was created by our founders to work because it does.
Speaker 1 (19:36):
What was the demeanor of the judges and what were
the main things they were honing in on as you
were in there listening to this. You were there for
about four hours waiting, and part of that's waiting time.
But what were their big questioning and could you read
into what you think the possible outcome could be here?
And what is best case scenario? What is fifty to
fifty for you know, conservatives on this one? What is
(20:00):
what does success draw or lowers look like?
Speaker 3 (20:02):
Yeah, so the judges, this was a very long argument,
and for your listeners out there, if you ever want
to go to the Supreme Court, the seats are not
very comfortable, and so you know, by the end of it,
your dogs were marked pretty well. But the judges were
very serious because this is an issue that affects not
just the issue that was in front of them, but
as you heard, it has great historical significance and enormous
(20:26):
future looking significance as well. They understand that the answer
to this question and the ruling in this case will
likely have an enormous effect on how the judiciary operates
going forward for a very very long time. And so
they were asking a lot of questions and I don't
know how frequently this happens, but about the historical beginnings
(20:48):
of Article three. You know, what were the British courts
that we were modeling our courts after. What were they doing,
you know? And so we could sort of get a
look into the mind of the framers and the founders
is they were designing our courts. They were obviously looking
to their former homeland to get an archetype and so
they were looking a lot at that, and the other
(21:10):
questions really centered around this idea of what happens in
either event, right, So there were a lot of questions
that were like, if I agree with you, what do
you think will happen? And they asked that to both sides. Right, So,
if we decide there are no universal injunctions government, what
happens to the folks who would be affected by the
(21:33):
executive order during the pendency of the time where it
would get fully breathed in all the circuits and all
the districts, which I think matters. I think that's an
incredibly important question because the answer to that is there
will be lots of other lawsuits in lots of other places,
and they might win some and they might lose some.
And so that's when you start to get the true
(21:54):
confluence of what is the question that the circuit courts
are answering differently? And when do we need to step
in to make this decision because the Supreme Court creates
precedent for the entire country. The other main questions I
feel like we're the most important were why do you
believe that a district court has the ability to enjoin
(22:18):
an entire country? And they were obviously answered differently by
the two different parties, but the Court was really trying
to There were a lot of very functional questions I
think that were enabling them to get to their conclusion.
Is is it an unfair result to use the process
as it was delineated in the Constitution. It's always the
most fair to do something properly, and I don't think
(22:40):
that there is an unfair result if the court says
to the complaining parties that, look, you have a gripe here,
but you got to do it the right way. The
second part of your question, Ben, was what does victory
look like. Victory is the court saying to all of
the district courts that nation wide injunctions are not an
(23:01):
appropriate thing for district courts to be doing, and eliminating
that function of district courts completely. We don't believe that
that's constitutional. A half victory, and I hate to talk
about half victories, would be a ruling that says something like,
we believe that nationwide injunction should be extremely disfavored, and
here is a test to determine whether or not a
(23:23):
court can issue a nationwide injunction. At the district court, though,
give them a roadmap for the questions they need to
answer as to whether or not they can do it
or not, and a loss, a full loss is just
nationwide injunctions are found to be an appropriate action to
take by a district court, and we think that will
(23:45):
result in a little bit of judicial chaos.
Speaker 1 (23:48):
My guess with me the Attorney General from West Virginia,
J B. McCuskey, JB. Final question for you is timing
on this. Is this one of those rulings that we
could probably hear saying quickly from the Supreme Court or
just take weeks or months? And can you read into
how quickly they respond and if that good or bad
news a lot more time they take, is that better
for us or the last time they take probably better
(24:10):
for us? Read into that for people that don't understand
exactly how the court works.
Speaker 3 (24:14):
Yeah, So I would say that this will likely come
out quickly, and I think the faster it comes out,
the more likely it is that we have been successful.
Speaker 2 (24:22):
So weeks you're thinking here, Yeah.
Speaker 3 (24:24):
I would think that a couple of weeks would be
a very reasonable amount of time for them to decide
this because there is a very significant interest of time
here and the court understands that. And the fact that
they heard this case on an emergency basis indicates that
they're probably going to issue an opinion in the same
kind of hurried stance.
Speaker 1 (24:45):
Make sure you share this podcast with your family and friends,
put it up on social media wherever you are, and
we appreciate you listening every day.
Speaker 2 (24:53):
We'll see you back here tomorrow.
It is a major day at the Supreme Court, and
I am live literally at the Supreme Court, staring at
it as we speak, as the court is hearing major
arguments on multiple different cases. Now in a moment, we're
going to be joined by the Attorney General of West Virginia,
who is talking about these district courts that have gone rogue,
putting nationwide injunction on Donald Trump many are describing in
(00:23):
his lawfare. But before we get to that, the Supreme
Court also heard arguments in the case over Donald Trump's
birthright citizenship order.
Speaker 2 (00:32):
The Supreme Court.
Speaker 1 (00:34):
Hearing the first set of Trump related arguments in the
second Trump presidency. Now, this case stem from the executive
order that President Trump issued on his first day in
office that we deny citizenship to children born on US
soil to parents who are in the country illegally or temporarily.
The executive order marks a major change to the provisions
(00:56):
of the Fourteenth Amendment that grant citizenship to people born
in the United States of America with just a couple
of exceptions. Immigrants rights groups and many liberal states sued
almost immediately to challenge the executive order of President Trump.
Federal judges have uniformally cast doubt on Trump's reading of
(01:17):
the citizenship cause, and three judges have blocked the order
from taking effect anywhere in the US, including US District
Judge John Kojinnar.
Speaker 2 (01:27):
I've been on the.
Speaker 1 (01:27):
Bench for over four decades, he said, I can't remember
another case where the question presented was as clear as
this one. This is a blatantly unconstitutional order, the judge
said at a hearing in his Seattle court room. Now,
the Supreme Court is taking up an emergency appeals filed
by the Trump administration, asking to be able to enforce
(01:50):
the executive order in most of the country at least
while the lawsuits over the order proceed Now, the constitutionality.
Speaker 2 (01:59):
Of the order is not before the court just yet.
Speaker 1 (02:02):
Instead, the justices are looking at potentially limiting the authority
of individual judges to issuing rulings that apply throughout the
entire country. These are known as nationwide or universal injunctions,
which I mentioned earlier. Now, Trump's Solicitor General wrapped up
his opening and his challenger stepped up. That's when Justice
(02:24):
Kavanaugh pressed with a series of questions about exactly how
the federal government might enforce Trump's order. Quote what do
hospitals do with a newborn? What the states do with
a newborn?
Speaker 2 (02:36):
He said.
Speaker 1 (02:36):
This solicitener General said they wouldn't necessarily do anything different,
but the government might figure out ways to reject documentation
with quote the wrong designation of citizenship. Kavanaugh continued to
press for clear answers, pointing out that the executive order
only gave the government about thirty days to develop a policy, saying, quote,
(02:59):
you think they can get it together in time.
Speaker 2 (03:02):
Justice brown Jackson.
Speaker 1 (03:04):
Appeared deeply skeptical of the Solicitor General's arguments as well, saying, quote,
your argument seems to turn our justice system, in my view,
at least into a catch me if you can, kind
of regime where everybody has to have a lawyer. Now,
the new Jersey Solicitor General stepped up to make his
case after the justices. Pepper the Solicitor General with questions.
(03:26):
He is arguing on behalf of the states that say
they'll lose millions of dollars in benefits available to US
children and also have to overhaul identification systems. He also
asserted in his opening that the post Civil War nation
wrote into our Constitution that cyszens the United States and
of these states would be one and the same without
(03:50):
variations across state lines. The new Jersey Attorney General told
the justices that judges should be able to issue orders
that affect the whole country, but only in narrow circumstances.
Roberts jumped on that last point, asking him to elaborate
on why they should only be used sparingly, a question
(04:10):
that could be a clue as to how the Chief
Justice Roberts is thinking about the issue now. Justice tried
to pin down the solicitor General's argument. Justice Kagan, by
the way, cut to the heart of the case by
asking the Solicitor General that if the Court concludes Trump's
order is illegal, how the nation's highest court could strike
(04:31):
down the measure under the administration's theory of court's limited power,
Saying this, does every single person who is affected by
this executive order have to bring their own suit Atlanta?
Kagan asked how long does it take? And the Solicitor
General tried to answer. Several of Kagan's colleagues, along with
(04:51):
the Justice, jumped in to say they didn't hear a
clear way the court could swiftly ensure the government could
not take unconstitutional action Roberts tried to help by jumping
in to note the High Court has moved fast in
the past, concluding the TikTok case in just one month.
The Solicitener General, are you going to answer Kagan by
(05:13):
saying there is no way to do this expeditiously? That
is what Cony Barrett asked, and Barrett continued by saying
this whether a class action lawsuit could be another way
for judges to issue a court order that could affect
more people. He said the administration would likely push back
on efforts of people to bind together for a class
(05:35):
action lawsuit, but that it would be another way for
cases to move forward. Justice Alito pointed out that multiple
states have also sued over the birthright citizenship order and
one broader victories. The Trump administration is also arguing that
states shouldn't have to be able to do that, but
(05:55):
the Solicitor General sticks to his point about the nationwide injunction,
saying they yield quote all these sorts of pathologies. Soto
my Oar returned how Trump's order could affect people's saying
it for some babies, it could render them stateless. Justices
Pepper Trump's Solicitor General with questions and oral arguments, arguing
(06:17):
first that the Solicitor General and the government's top attorney
before the Supreme Court saying, if you have a child
that is literally without a state to call their own,
what does that make them? Now, this is obviously a
very complicated issue. It's also an important one, and it's
one that deals with nationwide injunctions because they have become
(06:40):
especially frustrating for the Trump administration as opponents of the
president's policies have filed hundreds of lawsuits challenging his flurry
of executive orders.
Speaker 2 (06:50):
Why are they doing this?
Speaker 1 (06:52):
They're making it very clear, it's law fare, and they
want these judges in friendly districts and friendly courts in
liberal parts of America to do the nationwide injunctions to
stop everything that the president's doing. The argument that the
president's making, and many of those that were in the
courtroom on his behalf, is that he has the right
(07:12):
to be the president of the United States of America
and the right to executive orders, and every single one
of them should not be challenged and overturned by a
judge that is in a district. Now, President Trump pressed
for restrictions ahead of these arguments at the Supreme Court.
President Trump is weighing in and he said this granting
(07:33):
citizenship to people born here, long seen as a constitutional promise,
makes the country look stupid and like suckers. Now President
Trump's executive order at the heart of today's case really
aims at ending what he has described as a loophole
in birthright citizenship for children born to people in the
US illegally, something that many legal scholars are fighting back
(07:57):
saying would require amending the Constitution. This is going to
be a very important case moving forward. Now, if I'm
reading the tea leaves here from the Supreme Court, I
can tell you this. I think this is going to
be an uphill battle for the present. This conversation that's
extremely important, and that deals with the issue of these
(08:17):
activist judges cherry pickings certain things and going to liberal
courts making sure that nationwide injunctions come in on countless
executive orders. That brings me to my next guest, who
is the Attorney General of West Virginia, JB.
Speaker 2 (08:33):
Mccusky.
Speaker 1 (08:34):
He was in the Supreme Court and filed an amaricus
a brief along with the ACLJ about how important it
is that these nationwide injunctions from halfway across the country
by these district judges do not actually take away the
rights of the American people.
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Speaker 2 (10:46):
The Supreme Court.
Speaker 1 (10:48):
Had a very busy day on Thursday, and one of
the most consequential cases involving the Trump administration.
Speaker 2 (10:56):
It was heard in front of the Supreme Court.
Speaker 1 (10:59):
Now, my former roommate, you don't get to say this
every day, is also the Attorney General from West Virginia.
We were together actually on Capitol Hill. I'm staring at
the Supreme Court right now, and he was in the
Supreme Court today for this important, this.
Speaker 2 (11:15):
Major case on judges power.
Speaker 1 (11:17):
And I want to go to you, JB on this
so that you can explain how all this started. In essence,
you had judges that were making decisions that were covering
the entire country. And the argument is, maybe that's not
how it's supposed to be on these local levels or
these these smaller court battles, and this is what this
(11:38):
is all about.
Speaker 3 (11:39):
Yeah, I think you what you just said there makes
a lot of sense. This is a national issue that
was to solve that was decided or attempted to be
decided by a district court judge. And so what happens,
and this has been happening a lot, especially very recently
within the last thirty years, and that's a bipartisant problem then,
is that district court judges are in joining presidential decrees
(12:02):
right and saying what the president has done is not
just illegal in my courtroom, but it's illegal in the
entire country. And our process is set up differently than that.
Our district court judges are supposed to hear cases that
are in front of them and make decisions for the
plaintiffs that are in front of them. Here, several interest
groups in several states sued in a I'm going to
(12:25):
just say a friendly jurisdiction, which is how this works,
as you find a judge that is ideologically aligned with
you and you get them to enjoin an entire action.
That happened in this case in New Jersey. And so
a New Jersey judge then decided for all other of
the six hundred district court judges and all of the
circuit judges, and ostensibly for the Supreme Court whether or
(12:46):
not a presidential order was constitutional. While we did not
get into the underlying facts of this case today, ben
what the Supreme Court was hearing, and what our brief
described was the reasons why this is both unconstitutional and
a bad idea. So, for one, both the history of
our courts as you look back into the courts of
(13:07):
Chancery in England, as well as Article three, which was
written to delineate the powers of our courts, indicate that
circuit judges do not have the authority to issue nationwide injunctions. Further,
our brief gets into the idea that there is a
remedy here, and the remedy is is that if you're
looking to have a district court make a decision for
(13:29):
a large number of people, you have to go through
what's called a Rule twenty three and create a class action,
so then the court knows who the plaintiffs are that
they're trying to address a problem for. And fourth, and
maybe most importantly is that district courts and our federal
court systems, they are life tenured for a reason, and
(13:49):
that is to eliminate the stench of politics from the
benches around the country. And when you do forum shopping
and you start to use these universal injunctions in these
sort of weaponized ways, what you then will find, I
believe and our brief delineates that the confidence that the
public has in the independence of our judiciary will go
(14:13):
down very quickly. And that is the single most important
branch for the public to have confidence in, because it
is their orders and it is their writings that tell
every American how the Constitution is being interpreted as it
relates to the laws that apply to them. So this
is a really big case. We feel really really good
about our briefing. The people in West Virginia joined with
(14:36):
a group called the American Center for Law and Justice
in this briefing, and we're very hopeful that the Court
will use our amicus to guide them into what I
believe is a proper decision, and that is the district
courts lack the ability to adjoin the entire country as
it relates to presidential executive orders.
Speaker 1 (14:54):
So let's talk about the amicus brief and break that down.
The goal of an amicus brief, And people that are listening,
my guess with me is the Attorney General from West Virginia, JB.
Speaker 2 (15:03):
Mccusky.
Speaker 1 (15:04):
I want a dear friend of mine, former roommate, and were,
as I stare at literally at the Supreme Court right now,
you just left the Supreme Court where you guys filed
this amicus brief with the ACLJ. What is the goal
of an amicus brief for people that maybe don't understand
that terminology, maybe they've ever heard it before, And specifically,
what did you guys put in that amicus brief that
(15:26):
you're hoping that the justices will get from it and
read from it on this case.
Speaker 3 (15:31):
Yeah, So, an amicus brief is in Layman's term, it's
called a friend of the court brief, and so what
its purpose is is to help the justices as they're
making their decision with parties who have an interest in
the outcome. And in West Virginia, the interest in this
outcome comes from this widespread, weaponized use of nationwide injunctions.
We just saw within the last week a nation a
(15:53):
wide injunction out of the state of Washington that will
stop President Trump's executive orders on the use of coal
and lower electricity rates for Americans and putting West Virginia
coal miners back to work today in order to meet
our nation's energy needs. And so for us, these nationwide injunctions,
when you're a small rural state, they are never going
to be the forum that gets shopped into right. They're
(16:14):
never going to ask real patriotic Americans like they are
in West Virginia to answer these questions. They're going to
go to places where it's a little different. And so
we have a huge interest in ensuring that the process
plays out in nationwide injunctions to make sure that these
the President's executive orders as they relate to the economy
and the people of West Virginia are upheld and if
(16:35):
they are found to be unconstitutional that they go through
the proper channels. And that is what our brief says.
Our brief says that it isn't that the plaintiffs don't
have any options. Our brief says the options that they
chose are not available to the court that made them.
So they needed to have gone through what's called a
rule twenty three, as I just said, and explain to
(16:56):
the court why they have a class of plaintiffs that
have a similar need for this same kind of relief,
and then the court can order that those people get
that relief. And then if another district court or another
circuit court comes to a contrary conclusion, then the Supreme
Court can use that. The Supreme Court's power generally comes
(17:16):
from when they are deciding between circuits that have a
different interpretation of the law. And in this instance, they
circumvented that entire process by getting one single district court
judge to speak for the entire country. And that is
not allowed under Article three. And it's a really bad
idea in terms of public confidence and the independence of
our judicial branch.
Speaker 1 (17:38):
Is it fair to say that the mechanism that's being
used by the left to go and find these friendly
judges and friendly courts to do this. Is this a
version of lawfare where you say, we don't respect the people,
we don't respect their vote, we don't respect who they
chose as their leader, which this time happens to the
President Donald J.
Speaker 2 (17:58):
Trump.
Speaker 1 (17:59):
And so therefore we are going to use lawfair to
stop the will of the people and what they voted
for and what their leaders that they voted for, who
won in a free and fair election are trying to do.
Speaker 3 (18:11):
Well. I hesitate to use the word lawfare here, Ben,
because we do the same thing occasionally when there's Democrats
in the White House. And it's not that we have
a problem with challenging federal government edicts. Right, We as
Republicans are constantly finding ways that the federal government is
overstepping its bounds, and we use the courts in order
to rain them in like in West Virginia versus EPA.
Speaker 2 (18:34):
Right.
Speaker 3 (18:34):
So it isn't that this is It isn't lawfare as
you describe it, because we need the option to be
able to do this too. It is the kind of lawfare,
right it is.
Speaker 2 (18:44):
It is this.
Speaker 3 (18:46):
Novel concept that you use a single friendly district court
to do what is supposed to be the job of
the entire judiciary. Right, there's a reason why our system
has set up the way that it is. And I
personally believe as an originalist that the the factual scenarios
surrounding the reason why somebody's asking for something shouldn't change
(19:07):
the fundamental role and the rules that surround our court.
And that was really in essence, the main part of
this argument is should we break the rules because this
is important and my personal opinion is is that is
not true. We should maintain the constitutionally granted powers that
(19:29):
exist in our district courts and allow the system as
it was created by our founders to work because it does.
Speaker 1 (19:36):
What was the demeanor of the judges and what were
the main things they were honing in on as you
were in there listening to this. You were there for
about four hours waiting, and part of that's waiting time.
But what were their big questioning and could you read
into what you think the possible outcome could be here?
And what is best case scenario? What is fifty to
fifty for you know, conservatives on this one? What is
(20:00):
what does success draw or lowers look like?
Speaker 3 (20:02):
Yeah, so the judges, this was a very long argument,
and for your listeners out there, if you ever want
to go to the Supreme Court, the seats are not
very comfortable, and so you know, by the end of it,
your dogs were marked pretty well. But the judges were
very serious because this is an issue that affects not
just the issue that was in front of them, but
as you heard, it has great historical significance and enormous
(20:26):
future looking significance as well. They understand that the answer
to this question and the ruling in this case will
likely have an enormous effect on how the judiciary operates
going forward for a very very long time. And so
they were asking a lot of questions and I don't
know how frequently this happens, but about the historical beginnings
(20:48):
of Article three. You know, what were the British courts
that we were modeling our courts after. What were they doing,
you know? And so we could sort of get a
look into the mind of the framers and the founders
is they were designing our courts. They were obviously looking
to their former homeland to get an archetype and so
they were looking a lot at that, and the other
(21:10):
questions really centered around this idea of what happens in
either event, right, So there were a lot of questions
that were like, if I agree with you, what do
you think will happen? And they asked that to both sides. Right, So,
if we decide there are no universal injunctions government, what
happens to the folks who would be affected by the
(21:33):
executive order during the pendency of the time where it
would get fully breathed in all the circuits and all
the districts, which I think matters. I think that's an
incredibly important question because the answer to that is there
will be lots of other lawsuits in lots of other places,
and they might win some and they might lose some.
And so that's when you start to get the true
(21:54):
confluence of what is the question that the circuit courts
are answering differently? And when do we need to step
in to make this decision because the Supreme Court creates
precedent for the entire country. The other main questions I
feel like we're the most important were why do you
believe that a district court has the ability to enjoin
(22:18):
an entire country? And they were obviously answered differently by
the two different parties, but the Court was really trying
to There were a lot of very functional questions I
think that were enabling them to get to their conclusion.
Is is it an unfair result to use the process
as it was delineated in the Constitution. It's always the
most fair to do something properly, and I don't think
(22:40):
that there is an unfair result if the court says
to the complaining parties that, look, you have a gripe here,
but you got to do it the right way. The
second part of your question, Ben, was what does victory
look like. Victory is the court saying to all of
the district courts that nation wide injunctions are not an
(23:01):
appropriate thing for district courts to be doing, and eliminating
that function of district courts completely. We don't believe that
that's constitutional. A half victory, and I hate to talk
about half victories, would be a ruling that says something like,
we believe that nationwide injunction should be extremely disfavored, and
here is a test to determine whether or not a
(23:23):
court can issue a nationwide injunction. At the district court, though,
give them a roadmap for the questions they need to
answer as to whether or not they can do it
or not, and a loss, a full loss is just
nationwide injunctions are found to be an appropriate action to
take by a district court, and we think that will
(23:45):
result in a little bit of judicial chaos.
Speaker 1 (23:48):
My guess with me the Attorney General from West Virginia,
J B. McCuskey, JB. Final question for you is timing
on this. Is this one of those rulings that we
could probably hear saying quickly from the Supreme Court or
just take weeks or months? And can you read into
how quickly they respond and if that good or bad
news a lot more time they take, is that better
for us or the last time they take probably better
(24:10):
for us? Read into that for people that don't understand
exactly how the court works.
Speaker 3 (24:14):
Yeah, So I would say that this will likely come
out quickly, and I think the faster it comes out,
the more likely it is that we have been successful.
Speaker 2 (24:22):
So weeks you're thinking here, Yeah.
Speaker 3 (24:24):
I would think that a couple of weeks would be
a very reasonable amount of time for them to decide
this because there is a very significant interest of time
here and the court understands that. And the fact that
they heard this case on an emergency basis indicates that
they're probably going to issue an opinion in the same
kind of hurried stance.
Speaker 1 (24:45):
Make sure you share this podcast with your family and friends,
put it up on social media wherever you are, and
we appreciate you listening every day.
Speaker 2 (24:53):
We'll see you back here tomorrow.
Host
Ben Ferguson
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