Episode Transcript
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Speaker 1 (00:00):
Good morning, Brownie and Dragon tip to wonder if popcorn
and seals are up, because I think a lot of
people are enjoying seeing the meltdown that the leftists are
having right now. Have a good day.
Speaker 2 (00:15):
Oh I agree, I'm having a blast, and I find
it fascinating. For example, on our Dragon and I do
our little walk around during the break and you know,
make our potty breaks and stuff. And I always find
it fascinating when the top of the RP break, That's right.
I always find it fascinating when when some of the
(00:36):
reporters or what do we actually call the people in
the newsroom, because they're not really reporters. They don't go
out in the field.
Speaker 3 (00:44):
Do they occasionally?
Speaker 1 (00:46):
Do?
Speaker 3 (00:46):
Rob does?
Speaker 2 (00:47):
Does Rob on the field occasionally? Okay, So anyway, when
when the when the news room people come up and
ask me questions about you know, uh, you know, we're
doing a story about X.
Speaker 3 (01:00):
What is that? What does that really mean?
Speaker 1 (01:02):
Like? What what?
Speaker 2 (01:02):
What? What's really going on? I love that, uh not
because they're asking me for my opinion about what it
really means. I love it because it means that newspeople
are scrambling trying to keep up with everything that's going on,
and what does it really mean? I think, I think
it's wonderful. And in fact, I was thinking about this
(01:23):
segment as I was walking around about how I wanted
to start it out. I wanted to start it out
with a statement something to this effect that the Vice
president JD.
Speaker 3 (01:34):
Vance caused a fece storm.
Speaker 2 (01:39):
Day before yesterday or Sunday when he posted on X
that quote, if a judge tried to tell a general
how to conduct a military operation, that would be illegal.
If a judge tried to command the attorney general on
how to use her discretion as a prosecutor, that's also illegal.
Judges aren't allowed to control the executive's legitimate power.
Speaker 3 (02:03):
That was what he wrote an X.
Speaker 2 (02:06):
But my intro, my lead into that was that JD Vance,
the vice president, caused a feec storm an s storm.
When was the last time we had a vice president
that as vice president really created a firestorm? I think
(02:29):
this is wonder This is an example of how it is.
It is a barrage, if you will of just constant,
which is I thought, Well, we voted for we wanted
to upset the apple cart, we wanted to bull in
the China closet. We wanted to break things. We wanted
to rebuild things. We wanted to you know, completely eliminate
(02:51):
some things. We wanted to maybe fix some things. Other places,
we wanted to start completely over. I thought, this is
what we wanted. So the firestorm, Yeah, get out the popcorn.
We're not going to agree with every single thing they do.
And this is what I was trying to explain to
the person out in the newsroom was and it happened.
Speaker 3 (03:11):
It happened.
Speaker 2 (03:12):
It was It was about Gaza, which I probably is
on my list today, which we may get to. But
I was trying to explain that Trump does not necessarily
mean that, although Dragon has to chime in, as Dragon
tends to do and say, well, yeah, he is going
to be the developer, I was trying to explain that
doesn't mean that Trump is going to go build a
Trump hotel on the Mediterranean coast of Gaza, and you know,
(03:37):
and then attach a golf course to it, at least
not right away, maybe somewhere down the road, you know,
ten years or fifteen years from now. But what he
means is that the way we're doing business in that
And I don't want to get off from JD Vance,
except to point out that Gaza is an example of
(03:59):
a complete shift in the way we think about that
intractable problem of the so called Palestinian people, the stupid
never is going to work to state solution, and the
continued use of proxies by the Iranians in the Iraqis
and others to continue to wipe Israel off the face
(04:22):
of the earth. So we just keep repeating the same
cycle and the same kind of thing over and over
and over again. And what do we see. We see
three hostages release that literally looked like they came out
of Auschwitz. Well we just see, Okay, so it's time
to rethink how we're going to do that. And that's
what Trump's doing now. Is trump and artful sometimes in
(04:45):
the way he speaks absolutely But that's where and I
forget who originally said this, but someone said you've got
to learn not to take Trump literally, but to take
Trump seriously. And I think that's where I think that's
where the left completely loses it. But back to JD Events.
(05:10):
So his post on x created this firestorm. Well why
did he post that, Well, it's in response to this
growing list of specifically chosen judges, federal district court judges,
and specifically chosen federal district court jurisdictions, so that these
(05:36):
chosen judges have attempted to halt the new administration's agenda
with all these injunctions. Now, I'm not surprised by it.
I fully expected that almost everything Trump did was going
to either be because Congress is I heard. I'll see
if I can find the SoundBite, but I heard some congressman,
(05:59):
yes yesterday, repeat at least six times, we don't have
any leverage? What do you want us to do? And
he just kept whoever was interviewing him, he just kept saying,
we don't have any leverage. We can't do anything. What
do you expect us to do? We have no leverage?
And I thought, well, you know good, because now you
know kind of how we felt when we were in
(06:20):
the minority. These injunctions are directing Trump to release federal
grants to nonprofits that the administration has, in my opinion,
lawfully frozen so they can audit the expenses. For example,
(06:44):
they blocked the administration from applying its interpretation of the
Fourteenth Amendment, according to which children are born to illegal
aliens aren't automatically entitled to US citizenship. I think that's
a perfectly reasonable thing to do. Did I expect that
to just for everybody just go oh okay, No, of
course I didn't expect that. I expected someone to challenge it.
(07:06):
Where I am surprised, though, well no, let me rephrase that.
I'm not surprised. But where I think they've gone off
the rails is And again this gets back to language
when Trump, when Congress appropriates money. When Congress sends over
(07:27):
to the Office of Management and Budget a billion dollars
to be spent on, I don't care whether it's FEMA
or CBP, or it's some Department of Commerce program, it's
an HHS program.
Speaker 3 (07:42):
I don't care what it is.
Speaker 2 (07:44):
The executive does not have to just automatically spend that money.
They can say, wait a minute, this is money for
an already pre existing condition. But I don't really mean
pre existing condition is for a pre existing program. And
you've been throwing money at this program for decades. Well,
(08:08):
guess what, We're not going to spend this latest tranche
of money you sent over. We're gonna freeze the money,
and we're gonna look at the program. We're gonna have
the Inspectors General look at it. We're gonna have the
acting Secretary or the secretary or their designee look at
the program. We're gonna analyze it, you know, every which
way from Sunday to see whether or not this is
a legitimate use of money, whether the program's effective or not.
(08:32):
And then we're gonna have a battle over it, well
whether or not we're actually gonna spend the money. So
all they've done is said, don't spend the money immediately, halt,
don't pass the money on from omb Office of Management
and Budget. Well, you're gonna have to get used to
these acronyms. Just get used to. Omb is the Office
of Management and Budget. That is the office within the
(08:55):
Executive Office of the President that takes the money that
Congress said to the executive branch and then doles out
to all the different cabinet departments and agencies. And RUSS vote.
Who is the new I don't think. I'm not sure
now that I say that he is going to be
the new director of OMBU is an amazing individual who
(09:20):
is going to really look through all of these spending
programs with a fine tooth comb to see whether or
not they actually need to be used or not. Well,
let's go back to what happened. So Vance then hits
back of the judges and accuses them of trying to
restrict the president in his own sphere, in other words,
in his own Bailey Wick, in his own little backyard
(09:43):
called the executive branch, and he accuses the judges of
trying to override his decisions about how best to carry
out the law, how to execute in the executive branch.
So there's a hard law professor Adrian Vermule who posted
(10:03):
on X also reshared by the vice president who wrote
this judicial interference with the legitimate acts of state, especially
the internal functioning of a coequal branch, is a violation
of the separation of powers. Close quote. I think the
Harvard law professor is on point. But the judge's actions,
(10:30):
I think create another constitutional question. Can a lower court
that has very narrow local jurisdiction render a so called
nationwide injunction that purports to bind every American citizen? Now
(10:51):
what do I mean by that? Because you may not
realize it, because this particular program, whatever the program is,
may not involve you. Maybe you're not a participant in
the program. Maybe you don't receive benefits from the program,
either directly or indirectly, because you know, there are a
lot of programs out there that I have no part in,
(11:13):
other than some of my freaking tax money goes to
support programs that I don't support. These judges, oh no, no, no, no, no no.
The the administration by seemingly refusing to comply, they're effectively
(11:35):
answering no, that you don't have the jurisdiction to issue
a nationwide injunction that binds every American citizen and forces me,
as the chief executive officer of the Executive Branch, to
do something.
Speaker 3 (11:54):
So they're they're they're they're saying.
Speaker 2 (11:56):
No, you do not have that power, and in doing so,
according to The New York Times, and according to you know,
I should, I just I don't care enough. But I
probably could go find or create on my own all
of these yahoo Democrats who are screaming about that Trump
(12:18):
has created an unprecedented constitutional crisis. Get ready that that
will be for the rest of the week. That's going
to be the phrase that you're going to hear. We're
in a constitutional crisis, And somehow that's supposed to scare you.
Sometimes I actually think constitutional crisis crises are a good
(12:39):
thing to have. They're not something to fear because our
system is set up to resolve any purported constitutional crisis.
So everybody take a deep breath.
Speaker 3 (12:54):
You know, it's a parenthetic.
Speaker 2 (13:02):
If you and I mean this literally, if you listen
to the voices on the left right now, they're all
high pitched, they're all screaming, they're all, oh my gosh,
constitutional crisis. It's a constitutional crisis. Oh my gosh. And
it's the same with immigration. Oh, they're going into the schools,
(13:23):
they're holding little children out of schools. They're doing this,
They're they're they're raiding people's homes. They're going, Oh my god,
you'd say, everybody's hair's on fire. Seriously, listen to them sometime.
That's all they've got. They don't have any what I
would call are rational arguments on which we could have
(13:46):
a debate. Now, let's think historically, as as legal progressives
have been trying to limit presidential power when it's held
by the other side, it's become a sort of truism
that a lower court in California or say New Hampshire,
(14:11):
to go two extremes to Hawaii to Maine can put
a stop to a federal policy that covers the entire country.
The argument isn't obvious at all, and I think there's
a legitimately good reason to believe that the founding fathers
(14:32):
would have been baffled by such gross assertions of judicial
hegemony that one court in one you think, Now, Colorado's
kind of an exception, But states like Colorado, Oklahoma has.
Speaker 1 (14:53):
Two.
Speaker 2 (14:55):
Think at the Northern District in the Western District, So
Oklahoma has two. We have one district, the District Court
of Colorado. It sits in Denver. Now, they may occasionally
sit in a courtroom. There may be a federal courtroom
in some other city, and you know, maybe in Pueblo
or on the western slopes somewhere. I'm not really sure,
(15:15):
but that there may be. But there's just one federal
district in Colorado, and the federal district Court is right
here and downtown Denver. So one district court whose jurisdiction
is Colorado. Or take the Western District of Oklahoma. The
(15:36):
Western District of Oklahoma basically covers just precisely that the
western half or the western two thirds of Oklahoma and
the northern district pretty much covers the northeast.
Speaker 3 (15:48):
Corner of the Tulsa area.
Speaker 2 (15:52):
So how is it that, when your jurisdiction is that
geographical boundary, that we're going to somehow assert that you
can enjoin people in all other jurisdictions all across the
country by one injunction in your local jurisdiction. So let's
(16:18):
go through the constitution. What does the Constitution say. Well,
the first clause of Article three reads, the Article three
is the judicial branch, all right. Article one is the
legislative branch, Article two is the executive branch, and Article
three is the judicial branch. And the very first sentence
of that portion of Article three for the judicial branch says,
(16:41):
the judicial power of the United States shall be vested
in one Supreme Court and in such inferior courts as
the Congress may, from time to time ordain and establish.
This is the vesting clause and it has two elements
(17:03):
to it. First, the only court that shall be established
is the US Supreme Court. That's the founder said, you
shall establish one court, and that is the United States
Supreme Court. All the other lower courts, all the courts
(17:25):
of appeal, all of the different you know, the one
that sits in Denver for the Tenth Circuit, the one
that sits in New Orleans for the Fifth Circuit, the
one that sits out in California for the them blank
the ninth Circuit. Those are all subject to establishment by Congress.
Speaker 4 (17:51):
To Michael, basically, what you're saying is that this judge
in Rhode Island needs to stop weighing his finger Trump
because he has no legal right to do that.
Speaker 2 (18:06):
Just hang on, Just hang on a minute. So it's
just a little more nuanced than that, but we'll get
pretty close to that conclusion. Let's go back to the
to the Constitution, because that's that's really where we need
(18:27):
to start. The judicial Article three, first sentence. The judicial
power of the United States has vested in one Supreme
Court and in such inferior courts as the Congress may,
from time to time ordain and establish. That's the vesting
(18:47):
clause two notable elements. Two things that you need to
pay attention to. The only court that is established by
the Constitution is that Congress shall establish the US Supreme Court,
and then all the other lower courts is solely the
discretion of Congress. And that's the way they've been since
(19:10):
the Judiciary Act of seventeen eighty nine. That was one
of the very first statues that's ever passed by the
United States Congress. But if you can create something by statute,
you can by statute take that very same thing away.
So I think Congress would be well within its right
(19:32):
if they wanted to just eliminate any lower courts. Now
that's just restating a basic fact about our constitutional structure.
But is it practical. No, it's not practical because think
of all of the cases that have been that are
(19:56):
currently pending, or that have ever pended, been decided by
the federal district courts and the courts of appeal, millions
of them over the history of this country. Well, the
US Supreme Court doesn't have the bandwidth by which is
(20:17):
to handle all of that case load. So it would,
I mean, Congress could if they wanted to just eliminate
all of these courts in all these different jurisdictions. Now,
the Supreme Court's going to howl about that, and you
and I are going to howl about that, because, for example,
when you have diversity jurisdiction, which is simply one person
(20:40):
in one state is suing somebody else in another state
and you go to federal court to do it, or
you have you want to your rights have been violated,
and so you want to sue the government or a
government under forty two US see nineteen eighty three. Well,
(21:03):
you can't take all of those cases to the US
Supreme Court. So the Congress really does need to have
these lower courts. But it's a basic fact about our
constitutional structure that Congress doesn't have to do them. If
Congress established them in seventeen eighty nine, and if Congress
continues to for example, if if the population of Colorado
(21:24):
gives to the point that we really do need a
second or a third jurisdiction, a second and third district
in Colorado, Congress could establish the second Judicial District of
Colorado for you know, the Western Slope District for the
state of Colorado, and they could put a federal courthouse
(21:44):
out in Grand Junction. That would depend upon case load, population,
the ability of the judges here to say, hey, man,
our caseload is just way too heavy. Or they could
just add more judges. There's always a push for more judges.
(22:04):
Now that's a whole different story, but nonetheless there's always
a push for more federal district judges. But when I
say that there are two notable elements the judicial power
of the United States, first element vested in one Supreme Court.
Second element, and in such other courts as Congress from
(22:28):
time to time can ordain and establish.
Speaker 3 (22:35):
So that's just.
Speaker 2 (22:36):
The basics of our judicial system. That precarious state of
these lower courts, if you think about it, should tell
us something about their authority to neuter executive branch policy
for the entire country, because they're only allowed to exist
(22:59):
by a congressional statute that established them starting back in
seventeen eighty nine. Second, and more relevant, I think, is
what does it mean by judicial power when it says
that the judicial power of the United States? What does
(23:25):
that mean? Well, as a Chicago law professor teaches us
in a highly influential law review article from two thousand
and eight, the judicial power, he says, is the power
to issue binding judgments and to settle legal disputes within
(23:48):
the court's jurisdiction. Now, I'm going to emphasize obviously this
is a law review article, it's not a judicial decision.
But with he he says, within the court's jurisdiction, it's
the singular possessive, not the plural possessive, So it's court
(24:09):
apostrophe s not court's apostrophe. So he says, the judicial
power is the power to issue bind it to issue
binding judgments, and to settle legal disputes within I would
have written it this way within that court's jurisdiction, or
within a court's jurisdiction. So then there's a deeper question
(24:35):
that follows from that, what is a federal court's legitimate
jurisdiction when it comes to issuing an injunction. In legal eese,
an injunction is a form of an equitable remedy.
Speaker 3 (24:51):
It's it's you, you, You.
Speaker 2 (24:54):
Weigh all of the issues in front of you, and
what is an equable, equitable way to re this? And
injunctions are often particularly, say a temporary restraining order is hey,
listen the equities here. Say it appears to me, as
the judge, that you could be harmed by this, and
the harm would be immediate. So I'm going to temporarily
(25:16):
restrain somebody or something or some organization like the government
from doing something to you, while we set a hearing
date out here for a permanent injunction until we can
actually have a trial on the overarching issue. So it's
kind of a little baby step to take. Well, if
(25:39):
I take a baby step, that says, it appears to
me that you in front of me right now, as
a judge, that you would be irreparably harmed if this
happens today, I'll grant you a temporary restraining order pending
a hearing on a permanent injunction so that the parties
can brief me and get the case ready for me
(25:59):
to consider as the judge. And we'll set that for
you know, ten days down the road or two weeks
down the road, whatever it might be, and then I'll
look at whether or not to issue a permanent injunction
for the parties that are in front of me, because
that's my jurisdiction. If I'm if I'm a judge sitting
(26:21):
in the Federal District Court in Colorado, the jurisdiction are
the parties, assuming they have jurisdiction that they're they're lawfully
in front of me. My jurisdiction is for those parties
in front of me, not the parties down in Louisiana,
not the parties in Florida, not the parties in California,
the parties in Maine, but the party's sitting in front
of me right here in Colorado.
Speaker 3 (26:40):
Got it.
Speaker 2 (26:43):
So when you think about the equitable remedies, it's courts
ordering the executive branch that in this In these cases,
it's courts ordering the executive branch that has to automatically
grant us a lizenship to children born to unlawful migrants,
to unlawful illegal aliens. Well, if that's a case brought
(27:10):
before a judge in Colorado, that would while it would
have ramifications for the entire country, it's legally only binding
to those people that are right in front of me.
So if that's the case with birthright citizenship, then why
isn't the same logic applied to an injunction for a
(27:33):
government spending program that somebody right in front of me
is saying, Hey, if they freeze this money, that's going
to harm my organization immediately, and it's going to be
detrimental to my organization. So I need a tro right now.
And the judge says, okay, I will grant you that.
But that's just for those people, even though the spending
(27:58):
may be across all fifty seven states.
Speaker 3 (28:04):
So to me.
Speaker 2 (28:04):
The answer is simple. When it comes to this kind
of remedy an injunction, only the named parties in a
specific lawsuit are bound by that judgment. So, to follow
the example, a lower court can only order the federal
government to treat as an automatic citizen a specific infant
(28:24):
born on US soil to an illegal mother from Honduras,
baby Doe. But a lower court lacks the authority to
force the executive branch to grant automatic citizenship to baby
Doe and all other similarly situated children nationwide. Which now
gives us to this idea about these nationwide injunctions applying
(28:47):
to people all across this huge continent that doesn't have
any basis whatsoever in the Anglo American legal tradition. So
I think these judges that are in imposing these national
injunctions based on a local jurisdiction are way off base.
(29:08):
Let's go back to another Law Review article.
Speaker 5 (29:11):
After the break, Michael, I thought this was getting really ridiculous.
All these district judges all over the United States have
enough power to stop the United States President. Come on,
is anybody going to be able to do anything to
stop this kind of ridiculous nonsense?
Speaker 3 (29:29):
Well, let me jump to the conclusion, let me go back.
Speaker 2 (29:32):
Yes, eventually all of this is going to hit the
US Supreme Court or it's going to hit a political
wall where Remember what's going on right now is political.
It's a political battle taking place within the judicial branch Congress.
These NGOs members of Congress that can't get their way
(29:55):
politically are jumping into the courts. And what I'm trying
to do here is to explain that I think jumping
into the courts is the wrong way to do it,
because I think at some point the Supreme Court will say, hey, listen,
these injunctions do not apply nationwide. In fact, Clarence Thomas
has already alluded to that in some previous cases. And
(30:15):
this is a political battle that needs to be fought
out between the executive branch and the legislative branch, which
is I think that which is where we're going to head.
Speaker 4 (30:26):
Now.
Speaker 3 (30:26):
We're not going to get there tomorrow.
Speaker 2 (30:28):
And so this means that this is the new Russia, Russia, Russia.
The new Russia Russia Russia is enjoin and join and join, stopping, stopping, stopping,
run run to the court, but run to courts. Let's
go find an Obama appointee. Let's manipulate the system. Let's
let's pick and choose what jurisdictions we go to, and
(30:48):
let's manipulate the system so that this is despite this
so called random assignment of judges. Let's make sure that
you know you can you can play that system. You
can stand in the courthouse now if this has changed,
I'm sure some lawyer will let me know. But you
can stand in the courthouse ready to file your lawsuit,
(31:09):
and you can watch all the cases being filed in
front of you and see that it is getting You know,
are they just going in order? They're starting with you know,
Judge A going to B, the C to D or
is it truly just a random pick? But it's usually
not just totally random because you need to spread the
case load out through everybody. So when you think it's
the judge you want, when you think it's his term,
(31:31):
jump in line and get your case filed and more
likely not try to get it assigned to you. Or
when the judges, if the judges themselves are divving up
the cases, you know that your judge will show them, hell,
I want that case, I'll take that case. They're just
they're gaming the system. But back to I want you
to understand the legalities of these of this first, because
(31:52):
go back again. This is a Stanford law professor who
wrote in twenty eighteen that and an adjunction is nothing
more than a judicially imposed non enforcement policy that forbids
the name defendants to enforce the statute or the executive
order while the court's order remains in place. There's no
broad rid of erasure that would permit a lower court
(32:15):
to simply strike down a statute or to simply strike
down an executive order. It all goes back to the
legal ease of it has to do with those defendants
in that case, in that particular jurisdiction. Nationwide injunctions applying
to all people across a vast continent the size of
(32:38):
ours just doesn't have any basis In Anglo American legal tradition,
the proper scope of a federal court's power to issue
those kinds of remedies is restricted to the defendant's conduct
only with respect to that plaintiff. Those are the exact
words from Professor Bray of Notre Dame defendant's conduct. The
(33:02):
power to issue a remedy like an injunction is restricted
to the defendant's conduct only with respect to that particular plaintiff,
not all plaintiffs. So it's only to that in Goo
that's seeking the injunction, not to all NGOs. Now, of course,
I recognize that there may be a nationwide in Goo
(33:27):
that's getting an injunction somewhere, so it applied to where
that in Goo is doing business from that court. But
in a twenty eighteen case Trump versus Hawaii, just as
Thomas said, American courts of equity, these district courts did
(33:47):
not provide relief beyond the parties to the case because
for most of our history, he said, courts understood judicial
power as fundamentally the power to render judgments in individual cases.
If federal courts continues to issue them, this court is
duty bound to adjudicate their authority to do so. Now
(34:08):
that day is not yet time, I don't think, but
it might pretty soon because the clash between the second
Trump administration and these legal progressives is going to reach
a crescendo and we're going to be right back to
what is the meaning of judicial power? Well, not to
beat this dead horse too much, but I want you
(34:30):
to think about what what is the judicial power, and
what does it have to do with this political battle
that's going on. We'll talk about that next
Good morning, Brownie and Dragon tip to wonder if popcorn
and seals are up, because I think a lot of
people are enjoying seeing the meltdown that the leftists are
having right now. Have a good day.
Speaker 2 (00:15):
Oh I agree, I'm having a blast, and I find
it fascinating. For example, on our Dragon and I do
our little walk around during the break and you know,
make our potty breaks and stuff. And I always find
it fascinating when the top of the RP break, That's right.
I always find it fascinating when when some of the
(00:36):
reporters or what do we actually call the people in
the newsroom, because they're not really reporters. They don't go
out in the field.
Speaker 3 (00:44):
Do they occasionally?
Speaker 1 (00:46):
Do?
Speaker 3 (00:46):
Rob does?
Speaker 2 (00:47):
Does Rob on the field occasionally? Okay, So anyway, when
when the when the news room people come up and
ask me questions about you know, uh, you know, we're
doing a story about X.
Speaker 3 (01:00):
What is that? What does that really mean?
Speaker 1 (01:02):
Like? What what?
Speaker 2 (01:02):
What? What's really going on? I love that, uh not
because they're asking me for my opinion about what it
really means. I love it because it means that newspeople
are scrambling trying to keep up with everything that's going on,
and what does it really mean? I think, I think
it's wonderful. And in fact, I was thinking about this
(01:23):
segment as I was walking around about how I wanted
to start it out. I wanted to start it out
with a statement something to this effect that the Vice
president JD.
Speaker 3 (01:34):
Vance caused a fece storm.
Speaker 2 (01:39):
Day before yesterday or Sunday when he posted on X
that quote, if a judge tried to tell a general
how to conduct a military operation, that would be illegal.
If a judge tried to command the attorney general on
how to use her discretion as a prosecutor, that's also illegal.
Judges aren't allowed to control the executive's legitimate power.
Speaker 3 (02:03):
That was what he wrote an X.
Speaker 2 (02:06):
But my intro, my lead into that was that JD Vance,
the vice president, caused a feec storm an s storm.
When was the last time we had a vice president
that as vice president really created a firestorm? I think
(02:29):
this is wonder This is an example of how it is.
It is a barrage, if you will of just constant,
which is I thought, Well, we voted for we wanted
to upset the apple cart, we wanted to bull in
the China closet. We wanted to break things. We wanted
to rebuild things. We wanted to you know, completely eliminate
(02:51):
some things. We wanted to maybe fix some things. Other places,
we wanted to start completely over. I thought, this is
what we wanted. So the firestorm, Yeah, get out the popcorn.
We're not going to agree with every single thing they do.
And this is what I was trying to explain to
the person out in the newsroom was and it happened.
Speaker 3 (03:11):
It happened.
Speaker 2 (03:12):
It was It was about Gaza, which I probably is
on my list today, which we may get to. But
I was trying to explain that Trump does not necessarily
mean that, although Dragon has to chime in, as Dragon
tends to do and say, well, yeah, he is going
to be the developer, I was trying to explain that
doesn't mean that Trump is going to go build a
Trump hotel on the Mediterranean coast of Gaza, and you know,
(03:37):
and then attach a golf course to it, at least
not right away, maybe somewhere down the road, you know,
ten years or fifteen years from now. But what he
means is that the way we're doing business in that
And I don't want to get off from JD Vance,
except to point out that Gaza is an example of
(03:59):
a complete shift in the way we think about that
intractable problem of the so called Palestinian people, the stupid
never is going to work to state solution, and the
continued use of proxies by the Iranians in the Iraqis
and others to continue to wipe Israel off the face
(04:22):
of the earth. So we just keep repeating the same
cycle and the same kind of thing over and over
and over again. And what do we see. We see
three hostages release that literally looked like they came out
of Auschwitz. Well we just see, Okay, so it's time
to rethink how we're going to do that. And that's
what Trump's doing now. Is trump and artful sometimes in
(04:45):
the way he speaks absolutely But that's where and I
forget who originally said this, but someone said you've got
to learn not to take Trump literally, but to take
Trump seriously. And I think that's where I think that's
where the left completely loses it. But back to JD Events.
(05:10):
So his post on x created this firestorm. Well why
did he post that, Well, it's in response to this
growing list of specifically chosen judges, federal district court judges,
and specifically chosen federal district court jurisdictions, so that these
(05:36):
chosen judges have attempted to halt the new administration's agenda
with all these injunctions. Now, I'm not surprised by it.
I fully expected that almost everything Trump did was going
to either be because Congress is I heard. I'll see
if I can find the SoundBite, but I heard some congressman,
(05:59):
yes yesterday, repeat at least six times, we don't have
any leverage? What do you want us to do? And
he just kept whoever was interviewing him, he just kept saying,
we don't have any leverage. We can't do anything. What
do you expect us to do? We have no leverage?
And I thought, well, you know good, because now you
know kind of how we felt when we were in
(06:20):
the minority. These injunctions are directing Trump to release federal
grants to nonprofits that the administration has, in my opinion,
lawfully frozen so they can audit the expenses. For example,
(06:44):
they blocked the administration from applying its interpretation of the
Fourteenth Amendment, according to which children are born to illegal
aliens aren't automatically entitled to US citizenship. I think that's
a perfectly reasonable thing to do. Did I expect that
to just for everybody just go oh okay, No, of
course I didn't expect that. I expected someone to challenge it.
(07:06):
Where I am surprised, though, well no, let me rephrase that.
I'm not surprised. But where I think they've gone off
the rails is And again this gets back to language
when Trump, when Congress appropriates money. When Congress sends over
(07:27):
to the Office of Management and Budget a billion dollars
to be spent on, I don't care whether it's FEMA
or CBP, or it's some Department of Commerce program, it's
an HHS program.
Speaker 3 (07:42):
I don't care what it is.
Speaker 2 (07:44):
The executive does not have to just automatically spend that money.
They can say, wait a minute, this is money for
an already pre existing condition. But I don't really mean
pre existing condition is for a pre existing program. And
you've been throwing money at this program for decades. Well,
(08:08):
guess what, We're not going to spend this latest tranche
of money you sent over. We're gonna freeze the money,
and we're gonna look at the program. We're gonna have
the Inspectors General look at it. We're gonna have the
acting Secretary or the secretary or their designee look at
the program. We're gonna analyze it, you know, every which
way from Sunday to see whether or not this is
a legitimate use of money, whether the program's effective or not.
(08:32):
And then we're gonna have a battle over it, well
whether or not we're actually gonna spend the money. So
all they've done is said, don't spend the money immediately, halt,
don't pass the money on from omb Office of Management
and Budget. Well, you're gonna have to get used to
these acronyms. Just get used to. Omb is the Office
of Management and Budget. That is the office within the
(08:55):
Executive Office of the President that takes the money that
Congress said to the executive branch and then doles out
to all the different cabinet departments and agencies. And RUSS vote.
Who is the new I don't think. I'm not sure
now that I say that he is going to be
the new director of OMBU is an amazing individual who
(09:20):
is going to really look through all of these spending
programs with a fine tooth comb to see whether or
not they actually need to be used or not. Well,
let's go back to what happened. So Vance then hits
back of the judges and accuses them of trying to
restrict the president in his own sphere, in other words,
in his own Bailey Wick, in his own little backyard
(09:43):
called the executive branch, and he accuses the judges of
trying to override his decisions about how best to carry
out the law, how to execute in the executive branch.
So there's a hard law professor Adrian Vermule who posted
(10:03):
on X also reshared by the vice president who wrote
this judicial interference with the legitimate acts of state, especially
the internal functioning of a coequal branch, is a violation
of the separation of powers. Close quote. I think the
Harvard law professor is on point. But the judge's actions,
(10:30):
I think create another constitutional question. Can a lower court
that has very narrow local jurisdiction render a so called
nationwide injunction that purports to bind every American citizen? Now
(10:51):
what do I mean by that? Because you may not
realize it, because this particular program, whatever the program is,
may not involve you. Maybe you're not a participant in
the program. Maybe you don't receive benefits from the program,
either directly or indirectly, because you know, there are a
lot of programs out there that I have no part in,
(11:13):
other than some of my freaking tax money goes to
support programs that I don't support. These judges, oh no, no, no, no, no no.
The the administration by seemingly refusing to comply, they're effectively
(11:35):
answering no, that you don't have the jurisdiction to issue
a nationwide injunction that binds every American citizen and forces me,
as the chief executive officer of the Executive Branch, to
do something.
Speaker 3 (11:54):
So they're they're they're they're saying.
Speaker 2 (11:56):
No, you do not have that power, and in doing so,
according to The New York Times, and according to you know,
I should, I just I don't care enough. But I
probably could go find or create on my own all
of these yahoo Democrats who are screaming about that Trump
(12:18):
has created an unprecedented constitutional crisis. Get ready that that
will be for the rest of the week. That's going
to be the phrase that you're going to hear. We're
in a constitutional crisis, And somehow that's supposed to scare you.
Sometimes I actually think constitutional crisis crises are a good
(12:39):
thing to have. They're not something to fear because our
system is set up to resolve any purported constitutional crisis.
So everybody take a deep breath.
Speaker 3 (12:54):
You know, it's a parenthetic.
Speaker 2 (13:02):
If you and I mean this literally, if you listen
to the voices on the left right now, they're all
high pitched, they're all screaming, they're all, oh my gosh,
constitutional crisis. It's a constitutional crisis. Oh my gosh. And
it's the same with immigration. Oh, they're going into the schools,
(13:23):
they're holding little children out of schools. They're doing this,
They're they're they're raiding people's homes. They're going, Oh my god,
you'd say, everybody's hair's on fire. Seriously, listen to them sometime.
That's all they've got. They don't have any what I
would call are rational arguments on which we could have
(13:46):
a debate. Now, let's think historically, as as legal progressives
have been trying to limit presidential power when it's held
by the other side, it's become a sort of truism
that a lower court in California or say New Hampshire,
(14:11):
to go two extremes to Hawaii to Maine can put
a stop to a federal policy that covers the entire country.
The argument isn't obvious at all, and I think there's
a legitimately good reason to believe that the founding fathers
(14:32):
would have been baffled by such gross assertions of judicial
hegemony that one court in one you think, Now, Colorado's
kind of an exception, But states like Colorado, Oklahoma has.
Speaker 1 (14:53):
Two.
Speaker 2 (14:55):
Think at the Northern District in the Western District, So
Oklahoma has two. We have one district, the District Court
of Colorado. It sits in Denver. Now, they may occasionally
sit in a courtroom. There may be a federal courtroom
in some other city, and you know, maybe in Pueblo
or on the western slopes somewhere. I'm not really sure,
(15:15):
but that there may be. But there's just one federal
district in Colorado, and the federal district Court is right
here and downtown Denver. So one district court whose jurisdiction
is Colorado. Or take the Western District of Oklahoma. The
(15:36):
Western District of Oklahoma basically covers just precisely that the
western half or the western two thirds of Oklahoma and
the northern district pretty much covers the northeast.
Speaker 3 (15:48):
Corner of the Tulsa area.
Speaker 2 (15:52):
So how is it that, when your jurisdiction is that
geographical boundary, that we're going to somehow assert that you
can enjoin people in all other jurisdictions all across the
country by one injunction in your local jurisdiction. So let's
(16:18):
go through the constitution. What does the Constitution say. Well,
the first clause of Article three reads, the Article three
is the judicial branch, all right. Article one is the
legislative branch, Article two is the executive branch, and Article
three is the judicial branch. And the very first sentence
of that portion of Article three for the judicial branch says,
(16:41):
the judicial power of the United States shall be vested
in one Supreme Court and in such inferior courts as
the Congress may, from time to time ordain and establish.
This is the vesting clause and it has two elements
(17:03):
to it. First, the only court that shall be established
is the US Supreme Court. That's the founder said, you
shall establish one court, and that is the United States
Supreme Court. All the other lower courts, all the courts
(17:25):
of appeal, all of the different you know, the one
that sits in Denver for the Tenth Circuit, the one
that sits in New Orleans for the Fifth Circuit, the
one that sits out in California for the them blank
the ninth Circuit. Those are all subject to establishment by Congress.
Speaker 4 (17:51):
To Michael, basically, what you're saying is that this judge
in Rhode Island needs to stop weighing his finger Trump
because he has no legal right to do that.
Speaker 2 (18:06):
Just hang on, Just hang on a minute. So it's
just a little more nuanced than that, but we'll get
pretty close to that conclusion. Let's go back to the
to the Constitution, because that's that's really where we need
(18:27):
to start. The judicial Article three, first sentence. The judicial
power of the United States has vested in one Supreme
Court and in such inferior courts as the Congress may,
from time to time ordain and establish. That's the vesting
(18:47):
clause two notable elements. Two things that you need to
pay attention to. The only court that is established by
the Constitution is that Congress shall establish the US Supreme Court,
and then all the other lower courts is solely the
discretion of Congress. And that's the way they've been since
(19:10):
the Judiciary Act of seventeen eighty nine. That was one
of the very first statues that's ever passed by the
United States Congress. But if you can create something by statute,
you can by statute take that very same thing away.
So I think Congress would be well within its right
(19:32):
if they wanted to just eliminate any lower courts. Now
that's just restating a basic fact about our constitutional structure.
But is it practical. No, it's not practical because think
of all of the cases that have been that are
(19:56):
currently pending, or that have ever pended, been decided by
the federal district courts and the courts of appeal, millions
of them over the history of this country. Well, the
US Supreme Court doesn't have the bandwidth by which is
(20:17):
to handle all of that case load. So it would,
I mean, Congress could if they wanted to just eliminate
all of these courts in all these different jurisdictions. Now,
the Supreme Court's going to howl about that, and you
and I are going to howl about that, because, for example,
when you have diversity jurisdiction, which is simply one person
(20:40):
in one state is suing somebody else in another state
and you go to federal court to do it, or
you have you want to your rights have been violated,
and so you want to sue the government or a
government under forty two US see nineteen eighty three. Well,
(21:03):
you can't take all of those cases to the US
Supreme Court. So the Congress really does need to have
these lower courts. But it's a basic fact about our
constitutional structure that Congress doesn't have to do them. If
Congress established them in seventeen eighty nine, and if Congress
continues to for example, if if the population of Colorado
(21:24):
gives to the point that we really do need a
second or a third jurisdiction, a second and third district
in Colorado, Congress could establish the second Judicial District of
Colorado for you know, the Western Slope District for the
state of Colorado, and they could put a federal courthouse
(21:44):
out in Grand Junction. That would depend upon case load, population,
the ability of the judges here to say, hey, man,
our caseload is just way too heavy. Or they could
just add more judges. There's always a push for more judges.
(22:04):
Now that's a whole different story, but nonetheless there's always
a push for more federal district judges. But when I
say that there are two notable elements the judicial power
of the United States, first element vested in one Supreme Court.
Second element, and in such other courts as Congress from
(22:28):
time to time can ordain and establish.
Speaker 3 (22:35):
So that's just.
Speaker 2 (22:36):
The basics of our judicial system. That precarious state of
these lower courts, if you think about it, should tell
us something about their authority to neuter executive branch policy
for the entire country, because they're only allowed to exist
(22:59):
by a congressional statute that established them starting back in
seventeen eighty nine. Second, and more relevant, I think, is
what does it mean by judicial power when it says
that the judicial power of the United States? What does
(23:25):
that mean? Well, as a Chicago law professor teaches us
in a highly influential law review article from two thousand
and eight, the judicial power, he says, is the power
to issue binding judgments and to settle legal disputes within
(23:48):
the court's jurisdiction. Now, I'm going to emphasize obviously this
is a law review article, it's not a judicial decision.
But with he he says, within the court's jurisdiction, it's
the singular possessive, not the plural possessive, So it's court
(24:09):
apostrophe s not court's apostrophe. So he says, the judicial
power is the power to issue bind it to issue
binding judgments, and to settle legal disputes within I would
have written it this way within that court's jurisdiction, or
within a court's jurisdiction. So then there's a deeper question
(24:35):
that follows from that, what is a federal court's legitimate
jurisdiction when it comes to issuing an injunction. In legal eese,
an injunction is a form of an equitable remedy.
Speaker 3 (24:51):
It's it's you, you, You.
Speaker 2 (24:54):
Weigh all of the issues in front of you, and
what is an equable, equitable way to re this? And
injunctions are often particularly, say a temporary restraining order is hey,
listen the equities here. Say it appears to me, as
the judge, that you could be harmed by this, and
the harm would be immediate. So I'm going to temporarily
(25:16):
restrain somebody or something or some organization like the government
from doing something to you, while we set a hearing
date out here for a permanent injunction until we can
actually have a trial on the overarching issue. So it's
kind of a little baby step to take. Well, if
(25:39):
I take a baby step, that says, it appears to
me that you in front of me right now, as
a judge, that you would be irreparably harmed if this
happens today, I'll grant you a temporary restraining order pending
a hearing on a permanent injunction so that the parties
can brief me and get the case ready for me
(25:59):
to consider as the judge. And we'll set that for
you know, ten days down the road or two weeks
down the road, whatever it might be, and then I'll
look at whether or not to issue a permanent injunction
for the parties that are in front of me, because
that's my jurisdiction. If I'm if I'm a judge sitting
(26:21):
in the Federal District Court in Colorado, the jurisdiction are
the parties, assuming they have jurisdiction that they're they're lawfully
in front of me. My jurisdiction is for those parties
in front of me, not the parties down in Louisiana,
not the parties in Florida, not the parties in California,
the parties in Maine, but the party's sitting in front
of me right here in Colorado.
Speaker 3 (26:40):
Got it.
Speaker 2 (26:43):
So when you think about the equitable remedies, it's courts
ordering the executive branch that in this In these cases,
it's courts ordering the executive branch that has to automatically
grant us a lizenship to children born to unlawful migrants,
to unlawful illegal aliens. Well, if that's a case brought
(27:10):
before a judge in Colorado, that would while it would
have ramifications for the entire country, it's legally only binding
to those people that are right in front of me.
So if that's the case with birthright citizenship, then why
isn't the same logic applied to an injunction for a
(27:33):
government spending program that somebody right in front of me
is saying, Hey, if they freeze this money, that's going
to harm my organization immediately, and it's going to be
detrimental to my organization. So I need a tro right now.
And the judge says, okay, I will grant you that.
But that's just for those people, even though the spending
(27:58):
may be across all fifty seven states.
Speaker 3 (28:04):
So to me.
Speaker 2 (28:04):
The answer is simple. When it comes to this kind
of remedy an injunction, only the named parties in a
specific lawsuit are bound by that judgment. So, to follow
the example, a lower court can only order the federal
government to treat as an automatic citizen a specific infant
(28:24):
born on US soil to an illegal mother from Honduras,
baby Doe. But a lower court lacks the authority to
force the executive branch to grant automatic citizenship to baby
Doe and all other similarly situated children nationwide. Which now
gives us to this idea about these nationwide injunctions applying
(28:47):
to people all across this huge continent that doesn't have
any basis whatsoever in the Anglo American legal tradition. So
I think these judges that are in imposing these national
injunctions based on a local jurisdiction are way off base.
(29:08):
Let's go back to another Law Review article.
Speaker 5 (29:11):
After the break, Michael, I thought this was getting really ridiculous.
All these district judges all over the United States have
enough power to stop the United States President. Come on,
is anybody going to be able to do anything to
stop this kind of ridiculous nonsense?
Speaker 3 (29:29):
Well, let me jump to the conclusion, let me go back.
Speaker 2 (29:32):
Yes, eventually all of this is going to hit the
US Supreme Court or it's going to hit a political
wall where Remember what's going on right now is political.
It's a political battle taking place within the judicial branch Congress.
These NGOs members of Congress that can't get their way
(29:55):
politically are jumping into the courts. And what I'm trying
to do here is to explain that I think jumping
into the courts is the wrong way to do it,
because I think at some point the Supreme Court will say, hey, listen,
these injunctions do not apply nationwide. In fact, Clarence Thomas
has already alluded to that in some previous cases. And
(30:15):
this is a political battle that needs to be fought
out between the executive branch and the legislative branch, which
is I think that which is where we're going to head.
Speaker 4 (30:26):
Now.
Speaker 3 (30:26):
We're not going to get there tomorrow.
Speaker 2 (30:28):
And so this means that this is the new Russia, Russia, Russia.
The new Russia Russia Russia is enjoin and join and join, stopping, stopping, stopping,
run run to the court, but run to courts. Let's
go find an Obama appointee. Let's manipulate the system. Let's
let's pick and choose what jurisdictions we go to, and
(30:48):
let's manipulate the system so that this is despite this
so called random assignment of judges. Let's make sure that
you know you can you can play that system. You
can stand in the courthouse now if this has changed,
I'm sure some lawyer will let me know. But you
can stand in the courthouse ready to file your lawsuit,
(31:09):
and you can watch all the cases being filed in
front of you and see that it is getting You know,
are they just going in order? They're starting with you know,
Judge A going to B, the C to D or
is it truly just a random pick? But it's usually
not just totally random because you need to spread the
case load out through everybody. So when you think it's
the judge you want, when you think it's his term,
(31:31):
jump in line and get your case filed and more
likely not try to get it assigned to you. Or
when the judges, if the judges themselves are divving up
the cases, you know that your judge will show them, hell,
I want that case, I'll take that case. They're just
they're gaming the system. But back to I want you
to understand the legalities of these of this first, because
(31:52):
go back again. This is a Stanford law professor who
wrote in twenty eighteen that and an adjunction is nothing
more than a judicially imposed non enforcement policy that forbids
the name defendants to enforce the statute or the executive
order while the court's order remains in place. There's no
broad rid of erasure that would permit a lower court
(32:15):
to simply strike down a statute or to simply strike
down an executive order. It all goes back to the
legal ease of it has to do with those defendants
in that case, in that particular jurisdiction. Nationwide injunctions applying
to all people across a vast continent the size of
(32:38):
ours just doesn't have any basis In Anglo American legal tradition,
the proper scope of a federal court's power to issue
those kinds of remedies is restricted to the defendant's conduct
only with respect to that plaintiff. Those are the exact
words from Professor Bray of Notre Dame defendant's conduct. The
(33:02):
power to issue a remedy like an injunction is restricted
to the defendant's conduct only with respect to that particular plaintiff,
not all plaintiffs. So it's only to that in Goo
that's seeking the injunction, not to all NGOs. Now, of course,
I recognize that there may be a nationwide in Goo
(33:27):
that's getting an injunction somewhere, so it applied to where
that in Goo is doing business from that court. But
in a twenty eighteen case Trump versus Hawaii, just as
Thomas said, American courts of equity, these district courts did
(33:47):
not provide relief beyond the parties to the case because
for most of our history, he said, courts understood judicial
power as fundamentally the power to render judgments in individual cases.
If federal courts continues to issue them, this court is
duty bound to adjudicate their authority to do so. Now
(34:08):
that day is not yet time, I don't think, but
it might pretty soon because the clash between the second
Trump administration and these legal progressives is going to reach
a crescendo and we're going to be right back to
what is the meaning of judicial power? Well, not to
beat this dead horse too much, but I want you
(34:30):
to think about what what is the judicial power, and
what does it have to do with this political battle
that's going on. We'll talk about that next
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