May 16, 2025 • 16 mins
-
Nationwide Injunctions:
- The core issue is whether district court judges have the authority to issue rulings that apply nationwide, effectively halting presidential actions across the entire country.
- The concern is that this practice undermines the judicial process and centralizes too much power in individual judges.
-
Amicus Brief:
- McCuskey discusses an amicus curiae ("friend of the court") brief filed by West Virginia and the American Center for Law and Justice (ACLJ).
- The brief argues that nationwide injunctions are unconstitutional under Article III and that proper legal procedures (like class actions under Rule 23) should be followed instead.
-
Judicial Forum Shopping:
- The conversation highlights the tactic of choosing ideologically favorable courts to challenge federal actions, which both parties have used.
- McCuskey warns that this undermines public confidence in judicial impartiality.
-
Historical and Constitutional Context:
- The Supreme Court justices reportedly asked about the historical roots of Article III and the British legal traditions that influenced the U.S. judiciary.
- The discussion emphasizes the importance of adhering to constitutional processes rather than bending rules for political expediency.
-
Potential Outcomes:
- Victory: A ruling that district courts cannot issue nationwide injunctions.
- Partial Victory: A ruling that limits such injunctions with strict criteria.
- Loss: A ruling affirming the legality of nationwide injunctions.
-
Timing and Urgency:
- The case was heard on an emergency basis, and a decision is expected within weeks, indicating its urgency and significance.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
He said, sure, would you like to rest? He said,
what do you mean rest? I've been wrestling on the plane.
I don't want to rest. We don't have to rest
for He was thinking about Biden to come, okay, Biden.
Biden would have rested the entire trip. He wouldn't. First
of all, he wouldn't have made the trip, but if
he landed, he would have been rested for about five
days before he had the first meeting. I said, no,
let's go have the meeting because I want to find
out what's going on over here.
Speaker 2 (00:22):
If you're listening to the forty seven Morning Update with
Ben ferguson.
Speaker 3 (00:26):
Good Friday morning, welcome to a special edition of the
forty seven Morning Update where we are live at the
Supreme Court as a Supreme Court listen to oral arguments
on Thursday about the power of district judges to issue
nationwide injunctions. It's what many have referred to his law fare,
where a district judge tries to take away all the
(00:48):
power of the president through issuing a nationwide injunction. During
the hearing, Chief Justice John Roberts admonished Justice out of
my oar for continuing to interrupt the US list General,
and to say it was heated for Supreme Court standards
would be an understatement. But the big question now is
this what is going to happen and will the Supreme
(01:11):
Court defend President Trump's executive order power or will they
allow the judges to go rogue and to stop his agenda.
Joining me to talk about this is a dear friend
of mine, the Attorney General from West Virginia, who's actually
my former roommate. He was in the court as they
filed an amicust brief on behalf of the people of
(01:33):
West Virginia, and I want you to hear what he
said about the entire day at the Supreme Court that
can affect everyone in this country. It's the forty seven
Morning Update and it starts right now.
Speaker 2 (01:45):
First up, story number one.
Speaker 3 (01:47):
The Supreme Court had a very busy day on Thursday,
and one of the most consequential cases involving the Trump
administration was heard in front of the Supreme Court. Now, roommate,
you don't get to say this every day. Is also
the Attorney General from West Virginia. We were together actually
(02:07):
on Capitol Hill. I'm staring at the Supreme Court right now,
and he was in the Supreme Court today for this important,
this major case on judges power. 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.
(02:30):
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 is all about.
Speaker 4 (02:39):
Yeah, I think you what you just said there makes
a lot of sense. This is a national issue. That
was the soul 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 it's a bipartisan problem then,
is that district court judges are enjoining presidential decrees right
(03:03):
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 just
(03:26):
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 not a
(03:47):
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 Chancery in England, as
(04:09):
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 a large
(04:30):
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 that is
to eliminate the stench of politics from the benches around
(04:57):
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 down very quickly.
And that is the single most important branch for the
(05:18):
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 of West Virginia joined with a group called
the American Center for Law and Justice in this briefing
(05:40):
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 3 (05:55):
So let's talk about the amicus brief and break that down.
The goal of an amazon gus brief, And people that
are listening, My guest with me is the Attorney General
from West Virginia, JB. McCuskey. I want a dear friend
of mine, former roommate, and we are 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
(06:17):
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 you're hoping
that the justices will get from it and read from
it on this case.
Speaker 4 (06:31):
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 the widespread weaponized use of nationwide injunctions.
We just saw within the last week a nation wide
(06:54):
injunction out of the state of Washington that will stop
President Trump's executive orders on the use of coal and
lowering 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, are never going to
be the forum that gets shopped into right. They're never
(07:15):
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 they
(07:36):
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 the
(07:56):
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 from when
(08:17):
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 3 (08:38):
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 be
President Donald J. Trump. And so we are going to
(09:01):
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 1 (09:11):
Well.
Speaker 4 (09:11):
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 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 1 (09:33):
Right.
Speaker 4 (09:34):
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 1 (09:43):
It is this.
Speaker 4 (09:45):
This novel concept that you use a single friendly district
court to do what is supposed to be the job
of the entire judiciary.
Speaker 1 (09:52):
Right.
Speaker 4 (09:53):
There's a reason why our system has set up the
way that it is. And I personally believe as an
originalist that the actual scenarios surrounding the reason why somebody's
asking for something shouldn't change 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
(10:17):
the rules because this is important and my personal opinion
is is that is not true. We should maintain the
constitutionally granted powers that exist in our district courts and
allow the system as it was created by our founders
to work because it does.
Speaker 3 (10:35):
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 are there for
about four hours waiting, and part of that's waiting time.
But what were their big question 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 success,
(11:00):
draw or lose look like?
Speaker 1 (11:02):
Yeah?
Speaker 4 (11:02):
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 the 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
(11:26):
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
(11:48):
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 fos
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
(12:10):
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
(12:32):
the 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 confluence of what is the question that the
(12:57):
circuit courts are answering? Differently? 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
(13:17):
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
(13:39):
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 nationwide and junctions are not an
(14:01):
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
(14:23):
court can issue a nationwide injunction at the district court level.
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
(14:45):
result in a little bit of judicial chaos.
Speaker 3 (14:48):
My guests 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
weeks or months? And can you read into how quickly
they respond and if is that good or bad news?
A lot more time they take, is that better for
us or the last time they take probably better for us?
(15:10):
Read into that for people that don't understand exactly how
the court works.
Speaker 4 (15:13):
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 3 (15:21):
So weeks you're thinking here, Yeah.
Speaker 4 (15:24):
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.
Speaker 3 (15:44):
Stance Yeah, it's an incredible case. I'm glad that you're
in your position as the Attorney General West Virginia. I'm
glad that you guys are getting to work with the
American Serve for Law and Justice on this and filing this.
We're going to keep covering it. We'll let you know
when this ruling comes down. Always a pleasure, my friend.
Good chat with you. Glad to have me.
Speaker 4 (16:01):
It was great to see you this week too, buddy,
have a great day.
Speaker 2 (16:04):
Thank you for listening to the forty seven Morning Update
with Ben Ferguson. Please make sure you hit subscribe wherever
you're listening to this podcast right now and for more
in depth news, also subscribe to the Ben Ferguson podcast
and we will see you back here tomorrow
He said, sure, would you like to rest? He said,
what do you mean rest? I've been wrestling on the plane.
I don't want to rest. We don't have to rest
for He was thinking about Biden to come, okay, Biden.
Biden would have rested the entire trip. He wouldn't. First
of all, he wouldn't have made the trip, but if
he landed, he would have been rested for about five
days before he had the first meeting. I said, no,
let's go have the meeting because I want to find
out what's going on over here.
Speaker 2 (00:22):
If you're listening to the forty seven Morning Update with
Ben ferguson.
Speaker 3 (00:26):
Good Friday morning, welcome to a special edition of the
forty seven Morning Update where we are live at the
Supreme Court as a Supreme Court listen to oral arguments
on Thursday about the power of district judges to issue
nationwide injunctions. It's what many have referred to his law fare,
where a district judge tries to take away all the
(00:48):
power of the president through issuing a nationwide injunction. During
the hearing, Chief Justice John Roberts admonished Justice out of
my oar for continuing to interrupt the US list General,
and to say it was heated for Supreme Court standards
would be an understatement. But the big question now is
this what is going to happen and will the Supreme
(01:11):
Court defend President Trump's executive order power or will they
allow the judges to go rogue and to stop his agenda.
Joining me to talk about this is a dear friend
of mine, the Attorney General from West Virginia, who's actually
my former roommate. He was in the court as they
filed an amicust brief on behalf of the people of
(01:33):
West Virginia, and I want you to hear what he
said about the entire day at the Supreme Court that
can affect everyone in this country. It's the forty seven
Morning Update and it starts right now.
Speaker 2 (01:45):
First up, story number one.
Speaker 3 (01:47):
The Supreme Court had a very busy day on Thursday,
and one of the most consequential cases involving the Trump
administration was heard in front of the Supreme Court. Now, roommate,
you don't get to say this every day. Is also
the Attorney General from West Virginia. We were together actually
(02:07):
on Capitol Hill. I'm staring at the Supreme Court right now,
and he was in the Supreme Court today for this important,
this major case on judges power. 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.
(02:30):
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 is all about.
Speaker 4 (02:39):
Yeah, I think you what you just said there makes
a lot of sense. This is a national issue. That
was the soul 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 it's a bipartisan problem then,
is that district court judges are enjoining presidential decrees right
(03:03):
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 just
(03:26):
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 not a
(03:47):
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 Chancery in England, as
(04:09):
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 a large
(04:30):
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 that is
to eliminate the stench of politics from the benches around
(04:57):
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 down very quickly.
And that is the single most important branch for the
(05:18):
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 of West Virginia joined with a group called
the American Center for Law and Justice in this briefing
(05:40):
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 3 (05:55):
So let's talk about the amicus brief and break that down.
The goal of an amazon gus brief, And people that
are listening, My guest with me is the Attorney General
from West Virginia, JB. McCuskey. I want a dear friend
of mine, former roommate, and we are 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
(06:17):
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 you're hoping
that the justices will get from it and read from
it on this case.
Speaker 4 (06:31):
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 the widespread weaponized use of nationwide injunctions.
We just saw within the last week a nation wide
(06:54):
injunction out of the state of Washington that will stop
President Trump's executive orders on the use of coal and
lowering 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, are never going to
be the forum that gets shopped into right. They're never
(07:15):
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 they
(07:36):
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 the
(07:56):
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 from when
(08:17):
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 3 (08:38):
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 be
President Donald J. Trump. And so we are going to
(09:01):
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 1 (09:11):
Well.
Speaker 4 (09:11):
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 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 1 (09:33):
Right.
Speaker 4 (09:34):
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 1 (09:43):
It is this.
Speaker 4 (09:45):
This novel concept that you use a single friendly district
court to do what is supposed to be the job
of the entire judiciary.
Speaker 1 (09:52):
Right.
Speaker 4 (09:53):
There's a reason why our system has set up the
way that it is. And I personally believe as an
originalist that the actual scenarios surrounding the reason why somebody's
asking for something shouldn't change 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
(10:17):
the rules because this is important and my personal opinion
is is that is not true. We should maintain the
constitutionally granted powers that exist in our district courts and
allow the system as it was created by our founders
to work because it does.
Speaker 3 (10:35):
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 are there for
about four hours waiting, and part of that's waiting time.
But what were their big question 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 success,
(11:00):
draw or lose look like?
Speaker 1 (11:02):
Yeah?
Speaker 4 (11:02):
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 the 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
(11:26):
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
(11:48):
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 fos
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
(12:10):
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
(12:32):
the 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 confluence of what is the question that the
(12:57):
circuit courts are answering? Differently? 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
(13:17):
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
(13:39):
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 nationwide and junctions are not an
(14:01):
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
(14:23):
court can issue a nationwide injunction at the district court level.
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
(14:45):
result in a little bit of judicial chaos.
Speaker 3 (14:48):
My guests 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
weeks or months? And can you read into how quickly
they respond and if is that good or bad news?
A lot more time they take, is that better for
us or the last time they take probably better for us?
(15:10):
Read into that for people that don't understand exactly how
the court works.
Speaker 4 (15:13):
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 3 (15:21):
So weeks you're thinking here, Yeah.
Speaker 4 (15:24):
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.
Speaker 3 (15:44):
Stance Yeah, it's an incredible case. I'm glad that you're
in your position as the Attorney General West Virginia. I'm
glad that you guys are getting to work with the
American Serve for Law and Justice on this and filing this.
We're going to keep covering it. We'll let you know
when this ruling comes down. Always a pleasure, my friend.
Good chat with you. Glad to have me.
Speaker 4 (16:01):
It was great to see you this week too, buddy,
have a great day.
Speaker 2 (16:04):
Thank you for listening to the forty seven Morning Update
with Ben Ferguson. Please make sure you hit subscribe wherever
you're listening to this podcast right now and for more
in depth news, also subscribe to the Ben Ferguson podcast
and we will see you back here tomorrow
Host
Ben Ferguson
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