Two points were very clear coming out of the Supreme Court’s hearing over President Trump’s birthright citizenship executive order. 1) There’s zero chance that President’s Trump’s order will be allowed to redefine birthright citizenship as it’s been allowed to persist since the onset of the Fourteenth Amendment in 1868. 2) That there was broad interest in reining in the use of universal injunctions by lower courts.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
The Brian Mountshow podcast is driven by Brayman Motor Cars.
My family is a Brayman Motor Cars family. Your family
should be to visit Braymanmotorcars dot com. Welcome to the
Brian mut Show and thank you for listening.
Speaker 2 (00:18):
It's time for today's top three takeaways. Helpful, useful, repeatable.
Speaker 1 (00:25):
Was yesterday one of the most important days in the
modern American history. Was it doesn't feel like it yet,
does it? I know, Happy Friday, It's Friday. That's going on.
We got that and uh Trump, he's got.
Speaker 2 (00:42):
It going on.
Speaker 1 (00:43):
Like the Middle East most popular person ever in the
Middle East.
Speaker 3 (00:47):
I looked up the hair flips by the way we
were I was asking about that earlier. That was in
the United Arab Emirates and it was at Abu Dhabi.
Think I'm saying that right something like that. No, that was, yeah, anyway,
and it's I think a con how to pronounce it
all ayala or something.
Speaker 2 (01:04):
It's a tradition is credible too.
Speaker 3 (01:06):
Yeah, the United Arab memorates and Oman they use that
for like weddings and other festivities, and so I mean
chanting and the drums and the girls with the wh
the hair.
Speaker 2 (01:20):
Flips doesn't have the same effect when you do it.
I don't have hair. I envy these women. Looks like
you're possessed. But interesting to know the you're not airb memorates.
Speaker 3 (01:34):
You know, most much of the Middle East, the women
have to cover their hair, and they don't.
Speaker 1 (01:38):
Over there, they are one of the more forward looking
and thinking. You would say, I suppose, more progressive of
the Islamic states.
Speaker 2 (01:51):
Now, this is one of the biggest things that has
come out of it.
Speaker 1 (01:55):
I mean, not only has it been huge for Trump,
but I mean he's now more popular than Mohammad. That's
when I think for any number of reasons. So yeah,
Muhammad now number two, Trump number one in the Middle East.
Speaker 2 (02:08):
I'm not even commenting on that. Sounds like I want
nothing to do with that.
Speaker 3 (02:11):
I don't want to lose my head as they say,
Oh wow, okay, I'm good, all right, very well.
Speaker 1 (02:18):
So yeah, it could not have gone any better over there,
could not could go better for James Comy. James Commy's
taking a walk on the beach. And I don't know
about you, but there almost isn't a day that I
go walk on the beach that I don't see some
shell formation.
Speaker 3 (02:38):
Yeah, Like I don't go to the beach, so I
don't know. I mean, you could be you could be
telling the truth, Jose, I have no idea.
Speaker 2 (02:45):
And I mean I literally live on it.
Speaker 3 (02:47):
And you've never seen shells form eighty six forty seven.
Speaker 1 (02:52):
Remarkably enough, I've never seen shells line up in an
eighty six now.
Speaker 2 (02:57):
And then at forty seven right next to it.
Speaker 1 (03:00):
Far between are the times ever that's somebody left behind
a shell formation to begin with. I mean you're talking
about like maybe once every five years you might come
up on something like that, and then secondly that in
eighty six forty seven.
Speaker 2 (03:15):
But the most.
Speaker 1 (03:16):
Believable part about James Comey's tall tale is that the
former FBI director no clue what eighty six meant, never
heard the term. Well what what cop would possibly know?
Speaker 3 (03:35):
Comy is now under investigation by DHS and Secret Service,
as he should be.
Speaker 1 (03:41):
Well, I mean, shoot, he should still be behind bars
for what he did previously, let alone his shell form.
The other what are the odds that said shell formation
was not established by James Cummy, which is also part
of my point here, which he oh, I was just
walking down the beach and uh oh, eighty six forty seven?
(04:04):
Isn't that a nice note? I think I'll put up
on a social media account.
Speaker 3 (04:06):
That he deleted the post and then he wrote that
he knew that that it was a political statement, but
not that eighty six.
Speaker 2 (04:14):
But he didn't know it was men kill him.
Speaker 1 (04:17):
Yes, I just thought it was. I didn't know, but
it was. It had to be nice because it had
forty seven involves. Okay, not believable as the person on
this planet. Okay, So my takeaways did I actually not
have to do with the UAE, the Middle of the East,
(04:37):
or James Comy or sea shells for that matter, did
add to do with what was going on the Supreme
Court yesterday?
Speaker 2 (04:45):
Fox says Jessica Rosenthal.
Speaker 4 (04:46):
Before Justice has heard a bit about the merits of
the order, they first considered it at length. Whether lower
court judges can issue nationwide injunctions, in other words, stop
something from taking effect as was done here while the
issues play out in court.
Speaker 1 (04:58):
Yeah. So my top takeaway today, let's put out of
our minds the merits of this. Okay, So two points
are very clear coming out of the Supreme Court's hearing
over President Trump's birthright Citizenship Executive Order. One, there is
zero chance the President Trump's order will be allowed to
redefine birthright citizenship, as it's persistent given two that there
(05:23):
was broad interests in reining in the use of universal
injunctions by lower courts, with the biggest question being how
do we get there?
Speaker 2 (05:30):
How do we do it?
Speaker 1 (05:32):
My read when listening to the especially lengthy Scotis hearing
yesterday and went just to it for two and a
half hours, which is as long as any ever has gone,
was that it wasn't an especially a good day for
the Solicitor.
Speaker 2 (05:45):
General i e. Team Trump.
Speaker 1 (05:47):
Now, this was quickly established, with Justice Sotomayor taken over
the hearing effectively for a time, just being allowed to
run with it. Chief Justice Roberts try to stop her
at one point, but didn't, And that feeling was kind
of driven home when Justice Alito said, let's put out
of our mind the merits of this. It was very
early on. Now you know your merits case. And by
(06:09):
the way, what is the merits A merits? What birthright citizenship?
That is the merit argument. Okay, So what they're saying
is what Alito is saying, let's just put the birthright
citizenship aside, let's just not even talk about that and
waste time on that thing, because that that ain't gonna happen.
Speaker 2 (06:28):
Right.
Speaker 1 (06:29):
So when the second most conservative justice on the court,
by way Vooting record, said, I'm not even having a
conversation with you about birthright citizenship here, you know, just
ain't happening, right. But what about that whole universal injunction piece?
That is where there's a lot of interest. So my
second takeaway, we made it to nineteen sixty without a
(06:51):
universal injunction, Justice Samuel Alito about okay, so what is
it that we are really considering here?
Speaker 4 (07:00):
And the practical problem is that there are six hundred
and eighty district court judges, and they are dedicated.
Speaker 2 (07:07):
And they are scholarly, and I'm not impugning their motives
in any way, but you know, sometimes they're wrong, and
I might be impugning their motives too.
Speaker 1 (07:19):
Six hundred and eighty all that theoretically should have the
equivalent power of the President of the United States. So
he's illustrating the point. Look, the universal injunction thing is absurd, right.
These people quite literally have districts they've been assigned to,
yet they quite literally are issuing ruins for the entire country.
(07:45):
At one point the proceedings, Justice Clarence Thomas, who obviously
is ready to reign in the abuse of universal injunctions,
made the statement, so he made it to nineteen sixty
without a universal injunction. And the reason for that is,
did you know did you know? No, this was news
to to Joel.
Speaker 2 (08:06):
Yes, it was. You would get well.
Speaker 1 (08:08):
That there's not a well that and that there has
not been yeah, a universal injunction issued until the nineteen sixties.
Speaker 2 (08:18):
It's been gone.
Speaker 3 (08:18):
I mean, I was born sixty nine, so it's been
happening my whole lifetime. So I just that's about end.
I just assumed it's just been a thing I think
a lot of people did.
Speaker 1 (08:27):
Nineteen sixty three is the first time that you had
a federal judge issue explicitly a universal injunction. There are
a couple other rulings in prior decades that kind of
had the effect where you had like one disrecord judge
that issued are ruling, and then kind of there is
just others that fell in line behind that, but it
wasn't actually ruled. You have to do this everywhere in
(08:49):
the United States. The first time that there's actually this
applies to everybody. I'm disrect coort judge, you know. So
nineteen sixty three, that's when that happened. For all of
the last sixty two years of our country's history, no
such thing as a federal judge issuing universal injunctions. So
(09:11):
the only reason this happened is because one day a
federal judge thought beat their judgement, I'll show you on
more than a district court judge. And so they did
it and it was left unchallenged, which is entirely postconstitutional.
When you think about it, it is the greatest oxymoron running
that somebody who has been assigned to district can then
(09:33):
have jurisdiction not only outside that district, but for everybody's district.
I'm more powerful than anybody today. No, go away, you
unconstitutional boob. So there is no intellectual or constitutional consistency,
which is the point. So that takes us to our
third takeaway today. This is the hard part in this conversation.
(09:55):
What's the remedy? What's that songng?
Speaker 2 (09:59):
The remedy? Remedy?
Speaker 1 (10:04):
Now, I'll take I'm different strikes, different folks, but I'll
take the Jason.
Speaker 2 (10:08):
Roz over the blackreds version for sure. All right.
Speaker 1 (10:11):
Uh so let's say, in general, John Sower trying to
provide a remedy, the appropriate.
Speaker 5 (10:19):
Way to do it is for there to be multiple
lower courts considering it the appropriate percolation that close to
the lower courts, and then ultimately this court decides the
merits in a nationwide binding.
Speaker 2 (10:29):
President Now, I want more coffee. It's the is the muppet?
He sounds like he sounds like the way he sounds.
Speaker 1 (10:40):
I'm curious. I'm curious. You actually ever hear what what
RFK says or is just well, that's it. He doesn't
sound like a muppet. That's just it's hard.
Speaker 3 (10:47):
He's hard to listen to because of his you know,
his issue that he had there. But no, this voice,
I gotta figure it out. So it's right, me be
crazy all day now.
Speaker 1 (10:57):
Joel's trying to figure out what voice it is clearly
not in what he was trying to say there, because
it's complicated, right, It's it's complicated. That was the whole
reason that I played that clip. As he was trying
to provide a remedy. He actually did. At one point
he talked about class action lawsuits as being a potential remedy, which,
(11:17):
by the way, about that, I'm not going to try
to proclaim that I know how this case is going
to turn out.
Speaker 2 (11:23):
I'm not even sure if the justices.
Speaker 1 (11:25):
As of this morning themselves know how they intend to
have this play out. But I can present avenues that
became a parent taking all this in and dissecting it yesterday.
Three different things can happen here. They could punt and
do nothing, leaving the status quote in place. They could
roll against Trump's Executive Order on birthright citizenship, but in
(11:47):
universal injunctions. They could the third rule against Trump's EO
on birthright citizenship but limit the use of universal injunctions.
And the first is self explanatory but also the most unlikely.
Why would they have consolidated three cases and ordered an
expedited hearing two weeks after the end of the spring
(12:07):
session if the Supreme Court didn't have a predisposition to
do something differently here in an expedited way. Right, It's
possible they could get into it and be like, well,
maybe we don't want to touch this after all, but
it's not likely. If it's the second outcome, it's because
they likely accepted the idea that class action lawsuits can
(12:28):
take the place if you know, for soul injunctions. And
one thing about this, because I floated this idea to
an attorney yesterday and well, class action lawsuits something like stop.
I don't care if you're an attorney who doesn't. And
I'm not saying this to be mean. I'm just saying
this is a matter of constitutional law. I don't care
(12:50):
if you like class action lawsuits or not. That's not
the question here.
Speaker 2 (12:53):
What do you like? Legally?
Speaker 1 (12:55):
Yes, class action lawsuits can be a pain in the butt.
Very few attorneys other than those that like specialize in them,
go hey, let's do some class actions instead. But it
is the most constitutional idea that was presented. And here's
why universal injunctions do not exist in the United States Constitution.
It was just assumed authority in the nineteen sixties by
(13:18):
district court judge. No law was passed. Constitution does not
authorize this. Class Action lawsuits were created by Congress. If
we still truly believe that law is about the application
of the Constitution, the most constitutionally consistent thing we can
do would be the class action path as a remedy.
(13:43):
Now I got the Jason Moraz song in my head
and probably over a decade since I heard that good song.
So anyway, there you go. We will see what they
will do, and based upon how they roll, will determine
whether yesterday was one of the most important days modern
American history or just another day at the United States
(14:04):
Supreme Court with a very lengthy hearing
The Brian Mountshow podcast is driven by Brayman Motor Cars.
My family is a Brayman Motor Cars family. Your family
should be to visit Braymanmotorcars dot com. Welcome to the
Brian mut Show and thank you for listening.
Speaker 2 (00:18):
It's time for today's top three takeaways. Helpful, useful, repeatable.
Speaker 1 (00:25):
Was yesterday one of the most important days in the
modern American history. Was it doesn't feel like it yet,
does it? I know, Happy Friday, It's Friday. That's going on.
We got that and uh Trump, he's got.
Speaker 2 (00:42):
It going on.
Speaker 1 (00:43):
Like the Middle East most popular person ever in the
Middle East.
Speaker 3 (00:47):
I looked up the hair flips by the way we
were I was asking about that earlier. That was in
the United Arab Emirates and it was at Abu Dhabi.
Think I'm saying that right something like that. No, that was, yeah, anyway,
and it's I think a con how to pronounce it
all ayala or something.
Speaker 2 (01:04):
It's a tradition is credible too.
Speaker 3 (01:06):
Yeah, the United Arab memorates and Oman they use that
for like weddings and other festivities, and so I mean
chanting and the drums and the girls with the wh
the hair.
Speaker 2 (01:20):
Flips doesn't have the same effect when you do it.
I don't have hair. I envy these women. Looks like
you're possessed. But interesting to know the you're not airb memorates.
Speaker 3 (01:34):
You know, most much of the Middle East, the women
have to cover their hair, and they don't.
Speaker 1 (01:38):
Over there, they are one of the more forward looking
and thinking. You would say, I suppose, more progressive of
the Islamic states.
Speaker 2 (01:51):
Now, this is one of the biggest things that has
come out of it.
Speaker 1 (01:55):
I mean, not only has it been huge for Trump,
but I mean he's now more popular than Mohammad. That's
when I think for any number of reasons. So yeah,
Muhammad now number two, Trump number one in the Middle East.
Speaker 2 (02:08):
I'm not even commenting on that. Sounds like I want
nothing to do with that.
Speaker 3 (02:11):
I don't want to lose my head as they say,
Oh wow, okay, I'm good, all right, very well.
Speaker 1 (02:18):
So yeah, it could not have gone any better over there,
could not could go better for James Comy. James Commy's
taking a walk on the beach. And I don't know
about you, but there almost isn't a day that I
go walk on the beach that I don't see some
shell formation.
Speaker 3 (02:38):
Yeah, Like I don't go to the beach, so I
don't know. I mean, you could be you could be
telling the truth, Jose, I have no idea.
Speaker 2 (02:45):
And I mean I literally live on it.
Speaker 3 (02:47):
And you've never seen shells form eighty six forty seven.
Speaker 1 (02:52):
Remarkably enough, I've never seen shells line up in an
eighty six now.
Speaker 2 (02:57):
And then at forty seven right next to it.
Speaker 1 (03:00):
Far between are the times ever that's somebody left behind
a shell formation to begin with. I mean you're talking
about like maybe once every five years you might come
up on something like that, and then secondly that in
eighty six forty seven.
Speaker 2 (03:15):
But the most.
Speaker 1 (03:16):
Believable part about James Comey's tall tale is that the
former FBI director no clue what eighty six meant, never
heard the term. Well what what cop would possibly know?
Speaker 3 (03:35):
Comy is now under investigation by DHS and Secret Service,
as he should be.
Speaker 1 (03:41):
Well, I mean, shoot, he should still be behind bars
for what he did previously, let alone his shell form.
The other what are the odds that said shell formation
was not established by James Cummy, which is also part
of my point here, which he oh, I was just
walking down the beach and uh oh, eighty six forty seven?
(04:04):
Isn't that a nice note? I think I'll put up
on a social media account.
Speaker 3 (04:06):
That he deleted the post and then he wrote that
he knew that that it was a political statement, but
not that eighty six.
Speaker 2 (04:14):
But he didn't know it was men kill him.
Speaker 1 (04:17):
Yes, I just thought it was. I didn't know, but
it was. It had to be nice because it had
forty seven involves. Okay, not believable as the person on
this planet. Okay, So my takeaways did I actually not
have to do with the UAE, the Middle of the East,
(04:37):
or James Comy or sea shells for that matter, did
add to do with what was going on the Supreme
Court yesterday?
Speaker 2 (04:45):
Fox says Jessica Rosenthal.
Speaker 4 (04:46):
Before Justice has heard a bit about the merits of
the order, they first considered it at length. Whether lower
court judges can issue nationwide injunctions, in other words, stop
something from taking effect as was done here while the
issues play out in court.
Speaker 1 (04:58):
Yeah. So my top takeaway today, let's put out of
our minds the merits of this. Okay, So two points
are very clear coming out of the Supreme Court's hearing
over President Trump's birthright Citizenship Executive Order. One, there is
zero chance the President Trump's order will be allowed to
redefine birthright citizenship, as it's persistent given two that there
(05:23):
was broad interests in reining in the use of universal
injunctions by lower courts, with the biggest question being how
do we get there?
Speaker 2 (05:30):
How do we do it?
Speaker 1 (05:32):
My read when listening to the especially lengthy Scotis hearing
yesterday and went just to it for two and a
half hours, which is as long as any ever has gone,
was that it wasn't an especially a good day for
the Solicitor.
Speaker 2 (05:45):
General i e. Team Trump.
Speaker 1 (05:47):
Now, this was quickly established, with Justice Sotomayor taken over
the hearing effectively for a time, just being allowed to
run with it. Chief Justice Roberts try to stop her
at one point, but didn't, And that feeling was kind
of driven home when Justice Alito said, let's put out
of our mind the merits of this. It was very
early on. Now you know your merits case. And by
(06:09):
the way, what is the merits A merits? What birthright citizenship?
That is the merit argument. Okay, So what they're saying
is what Alito is saying, let's just put the birthright
citizenship aside, let's just not even talk about that and
waste time on that thing, because that that ain't gonna happen.
Speaker 2 (06:28):
Right.
Speaker 1 (06:29):
So when the second most conservative justice on the court,
by way Vooting record, said, I'm not even having a
conversation with you about birthright citizenship here, you know, just
ain't happening, right. But what about that whole universal injunction piece?
That is where there's a lot of interest. So my
second takeaway, we made it to nineteen sixty without a
(06:51):
universal injunction, Justice Samuel Alito about okay, so what is
it that we are really considering here?
Speaker 4 (07:00):
And the practical problem is that there are six hundred
and eighty district court judges, and they are dedicated.
Speaker 2 (07:07):
And they are scholarly, and I'm not impugning their motives
in any way, but you know, sometimes they're wrong, and
I might be impugning their motives too.
Speaker 1 (07:19):
Six hundred and eighty all that theoretically should have the
equivalent power of the President of the United States. So
he's illustrating the point. Look, the universal injunction thing is absurd, right.
These people quite literally have districts they've been assigned to,
yet they quite literally are issuing ruins for the entire country.
(07:45):
At one point the proceedings, Justice Clarence Thomas, who obviously
is ready to reign in the abuse of universal injunctions,
made the statement, so he made it to nineteen sixty
without a universal injunction. And the reason for that is,
did you know did you know? No, this was news
to to Joel.
Speaker 2 (08:06):
Yes, it was. You would get well.
Speaker 1 (08:08):
That there's not a well that and that there has
not been yeah, a universal injunction issued until the nineteen sixties.
Speaker 2 (08:18):
It's been gone.
Speaker 3 (08:18):
I mean, I was born sixty nine, so it's been
happening my whole lifetime. So I just that's about end.
I just assumed it's just been a thing I think
a lot of people did.
Speaker 1 (08:27):
Nineteen sixty three is the first time that you had
a federal judge issue explicitly a universal injunction. There are
a couple other rulings in prior decades that kind of
had the effect where you had like one disrecord judge
that issued are ruling, and then kind of there is
just others that fell in line behind that, but it
wasn't actually ruled. You have to do this everywhere in
(08:49):
the United States. The first time that there's actually this
applies to everybody. I'm disrect coort judge, you know. So
nineteen sixty three, that's when that happened. For all of
the last sixty two years of our country's history, no
such thing as a federal judge issuing universal injunctions. So
(09:11):
the only reason this happened is because one day a
federal judge thought beat their judgement, I'll show you on
more than a district court judge. And so they did
it and it was left unchallenged, which is entirely postconstitutional.
When you think about it, it is the greatest oxymoron running
that somebody who has been assigned to district can then
(09:33):
have jurisdiction not only outside that district, but for everybody's district.
I'm more powerful than anybody today. No, go away, you
unconstitutional boob. So there is no intellectual or constitutional consistency,
which is the point. So that takes us to our
third takeaway today. This is the hard part in this conversation.
(09:55):
What's the remedy? What's that songng?
Speaker 2 (09:59):
The remedy? Remedy?
Speaker 1 (10:04):
Now, I'll take I'm different strikes, different folks, but I'll
take the Jason.
Speaker 2 (10:08):
Roz over the blackreds version for sure. All right.
Speaker 1 (10:11):
Uh so let's say, in general, John Sower trying to
provide a remedy, the appropriate.
Speaker 5 (10:19):
Way to do it is for there to be multiple
lower courts considering it the appropriate percolation that close to
the lower courts, and then ultimately this court decides the
merits in a nationwide binding.
Speaker 2 (10:29):
President Now, I want more coffee. It's the is the muppet?
He sounds like he sounds like the way he sounds.
Speaker 1 (10:40):
I'm curious. I'm curious. You actually ever hear what what
RFK says or is just well, that's it. He doesn't
sound like a muppet. That's just it's hard.
Speaker 3 (10:47):
He's hard to listen to because of his you know,
his issue that he had there. But no, this voice,
I gotta figure it out. So it's right, me be
crazy all day now.
Speaker 1 (10:57):
Joel's trying to figure out what voice it is clearly
not in what he was trying to say there, because
it's complicated, right, It's it's complicated. That was the whole
reason that I played that clip. As he was trying
to provide a remedy. He actually did. At one point
he talked about class action lawsuits as being a potential remedy, which,
(11:17):
by the way, about that, I'm not going to try
to proclaim that I know how this case is going
to turn out.
Speaker 2 (11:23):
I'm not even sure if the justices.
Speaker 1 (11:25):
As of this morning themselves know how they intend to
have this play out. But I can present avenues that
became a parent taking all this in and dissecting it yesterday.
Three different things can happen here. They could punt and
do nothing, leaving the status quote in place. They could
roll against Trump's Executive Order on birthright citizenship, but in
(11:47):
universal injunctions. They could the third rule against Trump's EO
on birthright citizenship but limit the use of universal injunctions.
And the first is self explanatory but also the most unlikely.
Why would they have consolidated three cases and ordered an
expedited hearing two weeks after the end of the spring
(12:07):
session if the Supreme Court didn't have a predisposition to
do something differently here in an expedited way. Right, It's
possible they could get into it and be like, well,
maybe we don't want to touch this after all, but
it's not likely. If it's the second outcome, it's because
they likely accepted the idea that class action lawsuits can
(12:28):
take the place if you know, for soul injunctions. And
one thing about this, because I floated this idea to
an attorney yesterday and well, class action lawsuits something like stop.
I don't care if you're an attorney who doesn't. And
I'm not saying this to be mean. I'm just saying
this is a matter of constitutional law. I don't care
(12:50):
if you like class action lawsuits or not. That's not
the question here.
Speaker 2 (12:53):
What do you like? Legally?
Speaker 1 (12:55):
Yes, class action lawsuits can be a pain in the butt.
Very few attorneys other than those that like specialize in them,
go hey, let's do some class actions instead. But it
is the most constitutional idea that was presented. And here's
why universal injunctions do not exist in the United States Constitution.
It was just assumed authority in the nineteen sixties by
(13:18):
district court judge. No law was passed. Constitution does not
authorize this. Class Action lawsuits were created by Congress. If
we still truly believe that law is about the application
of the Constitution, the most constitutionally consistent thing we can
do would be the class action path as a remedy.
(13:43):
Now I got the Jason Moraz song in my head
and probably over a decade since I heard that good song.
So anyway, there you go. We will see what they
will do, and based upon how they roll, will determine
whether yesterday was one of the most important days modern
American history or just another day at the United States
(14:04):
Supreme Court with a very lengthy hearing
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