Interview & Analysis: Birthright Citizenship & Universal Injunctions - SCOTUS Hearing w/Jon Decker

Episode Transcript

Speaker 1 (00:04):
Faith freedom in Florida. This is the Brian mud show.
It is.

Speaker 2 (00:10):
And we are joined by our White House correspondent, who's
not just any White House correspondent, but also the only
one who's an attorney, and not just any attorney, but
an attorney who can argue cases before the United States
Supreme Court. And on that note, happened to be at
the United States Supreme Court four the hearing yesterday and
what could be one of the more significant cases in

(00:31):
our country's history based upon the way things go, John,
what was the read of the court room yesterday?

Speaker 1 (00:39):
Tell us about him? Well, that's right, two plus hours
of oral arguments yesterday. I was in the court for
those oral arguments, and there seemed to be a real divide,
a divide on the Supreme Court on two separate issues.
One the issue really before the Supreme Court right now,
that issue whether or not it is permissible, whether it's legal,
whether it's proper for a federal district court judge, just

(01:03):
one federal district court judge to impose a nationwide injunction
as opposed to an injunction just affecting the parties that
brought a suit in the first place. So that's where
the divide was first and foremost Brian, and then the
second divide was on this issue of birthright citizenship. Not
one of the nine justices defended that executive order. I

(01:26):
think that's telling as it relates to how the Court
may rule on that issue ultimately. But the first issue
that they need to decide on is this issue of
nationwide injunctions.

Speaker 2 (01:39):
Yeah, on the birthright citizenship piece, on the merits argument,
I wrote down this quote from Justice Alito very early on.
He said, let's put out of our mind the merits
of this. So when Alito was saying that, you know,
that's a non starter. This is so the birthright citizenship
being redefined as has persisted via an executive order by

(02:03):
the President obviously is not going to be accepted here.
But for the injunction piece, so there's so much to
kind of wade through. It looks like the justices at
times were struggling with how to find a limiting factor.

Speaker 1 (02:18):
What would it be?

Speaker 2 (02:19):
And you had these listener general that offered up, well,
maybe class action lawsuits could be a way to go
about it. What are your thoughts on that?

Speaker 1 (02:28):
Well, that's right, you mentioned that as a possibility I
think that that's right the way that you describe it, Brian.
The Supreme Court, you know, this is why they are
the most intelligent legal minds typically in the nation that
serve on this high work, because they really do need
to navigate how to confront this very issue, because as

(02:48):
it relates to the nationwide injunction related to birthright citizenship.
I think that enough justices on the Court the value
as it relates to the issue of birthright citizenship. But
there are so many other issues, Brian. We've seen it
over the years, affecting both presidents, where you see these
nationwide injunctions being imposed by a single judge, and both

(03:10):
liberal and conservative justices over the last decade have expressed
frustration that single individual federal district court judges are taking
this type of action.

Speaker 2 (03:21):
Well, and on that note, and you had Justice Thomas
who brought it up at one point seemingly realizing that
universal injunctions have only been a product of about the
last sixty two years. I mean, some people debate which
one was the first one to win through, but a
lot of people point to a case in sixty three,
and so you don't have this that is constitutionally granted

(03:44):
to district courts. You don't have this as a matter
of law litt alone constitutional law through an amendment by Congress.
You just had a district court judge somewhere along the
way assert this kind of authority and then it was
just allowed to persist until now it's being challenged. And
it's almost an oxy moron. You're a district court judge.

(04:06):
You have your jurisdiction, just like a law enforcement agency
has a jurisdiction. You wouldn't have a sheriff of a county,
you know, issue in order that the FBI would have
to live by.

Speaker 1 (04:17):
Well, that's right, and you know, picking up what you
said about Justice Clarence Thomas, he did indeed point out
when he spoke up that this process of imposing a
nationwide injunction really only began in the sixties. And I
think his line was something to the effect of America
survived before that point. So you know where you know

(04:38):
where he stands on this particular issue. He made that
pretty clear. So I'm very curious to see how the
Supreme Court ultimately navigates this case in terms of the
opinion that they put out, likely at the end of
next month. The end of their term, it's going to
be I think a tough job for Chief Justice John

(04:59):
Roberts to figure out where the Supreme Court lands on
the case that they heard yesterday.

Speaker 2 (05:04):
Yeah. Just and as a legal expert that you are,
and also a law professor for that matter, Professor Decker,
I want you to walk with me on this. I'm
here to get your thought real quick. So if a
lot of people don't like class actions as kind of
like a means to try to circumvent this problem. At

(05:25):
the same time, if I'm thinking about this constitutionally, you
have the universal injunction that is not constitutionally granted it
was just exerted by the judiciary.

Speaker 1 (05:38):
You have.

Speaker 2 (05:39):
The idea of birthright citizenship through an executive order that
is a non starter from a point of a premise. Okay,
So then you start to look at the you know
what is most constitutional, Well, an Act of Congress would
theoretically be and if the one thing in this conversation
that has actually been granted by Congress class action lawsuits,

(06:00):
and so one of the most constitutionally sound argument that
was brought up potentially be that class action piece, even
if it's not the most comfortable for a lot of
people in legal circles.

Speaker 1 (06:13):
Well, I think that's right, you know, I think that's
a good read on it. Brian, you know, to me,
you know, what would happen? I mean a lot of
questions were hypotheticals. What would happen the day after various
justices say you win, or what would happen the day
after you lose? Well, if indeed the Solicitor General of
New Jersey, who was on the opposite side of the

(06:34):
Solicitor General of the United States, if the Solicitor General
of New Jersey lost in this particular matter, the day after,
I think that for these three separate matters that have
been brought to three separate sedal judges, all three lawyers
who have brought these matters in the first place would
seek class action status. I think that's pretty clear. What

(06:55):
would happen if indeed the court ruled against them as
it relates to these cases before the Supreme Court.

Speaker 2 (07:02):
John, thank you, as always for your expert reporting and analysis.
It is truly appreciated.