July 14, 2025 • 34 mins
Professor Cary Coglianese who directs the University of Pennsylvania Carey Law School’s program on regulation, discusses the way federal courts are getting around the Supreme Court’s decision limiting nationwide injunctions. Carl Tobias, a professor at the University of Richmond Law School, discusses President Trump’s slow start with judiciary appointments. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
At the end of June, President Trump celebrated the Supreme
Court's decision limiting the ability of federal judges to issue
nationwide injunctions.
Speaker 3 (00:17):
Thanks to this decision, we can now promptly file to
proceed with numerous policies that have been wrongly enjoined on
a nationwide basis. And some of the cases we're talking
about would be ending birthright citizenship, which now comes to the.
Speaker 2 (00:34):
Fore but a federal judge stop that from happening. And
though it's clear the decision was a win for the
Trump administration, how big a win has yet to be determined.
In the last few weeks, federal judges have been using
the alternative options offered by the justices to block the
Trump agenda nationwide. For example, judges have blocked the enforcement
(00:58):
of Trump's birthright CIS citizenship order, restored public health data
to government websites, and struck down Trump's ban on asylum claims.
Joining me to discuss just how much that Supreme Court
decision will benefit the Trump administration is Carrie Kolonisi, a
professor at the University of Pennsylvania. Carrie, Law School and
(01:19):
director of the Penn Program on Regulation. Carrie, what did
the majority suggest in the KASA decision as alternative paths
to getting nationwide injunctions?
Speaker 1 (01:31):
Well, first of all, you still can get nationwide or
universal injunctions. I mean that people use different language but
basically the same thing, and you still under KASA can't
get it when just an injunction confined to the parties
would not provide the parties with complete relief. So we
(01:53):
might see, and in fact, the court suggests even that
the states that were challenging the Birthright Citizenship Order could
well have a basis for getting a nationwide injunction because
they need it for complete relief. People move from one
(02:14):
part of the country to the other, from one state
to the other states, and without some national uniformity in
this litigation, states will not know whether they should be
giving certain people federally funded benefits that apply only for citizens.
For example, you know, they'll need to probably redo a
(02:37):
lot of their administrative paperwork or hire more workers to
handle applications.
Speaker 4 (02:42):
It'd be a.
Speaker 1 (02:43):
Quagmire for a lot of states. So, first of all,
that's one key thing is that Trump BECAUSA doesn't say,
like absolutely never a nationwide injunction, but probably you know,
most cases that won't be possible. But in this case,
with birthright citizenship and the states that are suing, it
might be obtainable because anything short of that would not
(03:06):
give the litigans complete relief. So that's one thing to know.
But then the court, as you suggest, also says, gee,
there can be other ways of getting what is essentially
nationwide injunctive relief. We wouldn't call it a nationwide injunction,
but it's essentially going to be the same thing, and
(03:26):
that would be through certifying a class action. So litigants
come forward all the time, We have the class actions
all the time, where the court is making a decision
that applies to anybody within a certified class nationwide, and
in this birthright citizenship context, that would seem also to
(03:47):
easily apply. There are some standards for what it takes
to qualify for a class, but once that's met, then
you could get nationwide relief. And a third option here
is something under the Administrative Procedure Act, which is a
statute that applies to any of the federal government agencies
actions and there's a provision in the APA as it's
(04:11):
known that allows courts to set aside unlawful actions. It's
not just even allows it, but it says the court
shall set aside unlawful actions, and that's a possibility. The
Court in the cost case doesn't say much about this
set aside option under the Administrative Procedure Act, but it
(04:32):
does acknowledge in a footnote that it's not saying that
it can't apply, and in fact, in various other contexts
and Supreme Court oral arguments and the like, for example,
and actually a longstanding tradition since at least the nineteen sixties,
the federal courts have used this set aside language to
(04:53):
hold unlawful a government policy, regulation, guidance that applies nationwide.
If it's not lawful, it's hard to say how a
government policy could still apply to folks who just don't
happen to have the ability to go into court to
challenge it. If it's unlawful, it's unlawful. And so anyway,
(05:14):
there's a real possibility that both in the birthright citizenship
case and in a lot of other cases, litigants are
going to be able to still get what is essentially
nationwide relief. Shutting down unlawful policies or at least potentially
unlawful policies on a preliminary basis.
Speaker 2 (05:33):
On a national level, the New Hampshire Judge and the
birthright Citizenship case certified a class action lawsuit on behalf
of US born children or future children whose automatic citizenship
could be jeopardized by President Trump's executive order, so wherever
those children may be across the country, So in effect
(05:55):
it's a nationwide injunction. Was he working within the confines
of the S'preme Court's decision or was this sort of
a workaround.
Speaker 1 (06:04):
Well, the New Hampshire Judge just recently says that, you know,
I'm going to recognize, at least on a putative basis,
that there's a class here. It meets all the requirements
for a class action. Rule twenty three are into the
Federal Rules of Civil Procedure outline for criteria that have
to be met, and it certainly makes a lot of
(06:27):
sense that those would be met. In the birthright citizenship context.
You need a lot of people that would be affected
such that the courts just wouldn't be able to bring,
you know, maybe two or three or four or five
lawsuits and bring them together and try them together. Maybe
they were talking about thousands and in this case tens
of thousands maybe right away, perhaps possible lawsuits. So there's
(06:49):
a numerosity, there's a common factual and legal predicate that.
Speaker 4 (06:55):
Has to be met.
Speaker 1 (06:56):
And again it seems like this is pretty much the
everybody is going to have the same criteria. Either were
born in the United States or you weren't. And third,
there really is an ability to effectively pursue relief for
everybody by just trying a few people, and that there's
(07:16):
fourth effective representation for the full class. And the judge
in New Hampshire says, I think we've got that. I
think we've got a class action here. So in the
birthright citizenship case, that seems to be an avenue. And
we still may also see in some of the state
challengers coming forward, and a judge is saying we need
to put in place a nationwide injunction to provide complete relief.
(07:39):
So that's also still out there.
Speaker 2 (07:41):
A Trump administration spokesperson said the judge was abusing the
class certification process. What do you think their arguments will
be against the certification of this class when they appeal.
Speaker 1 (07:53):
Well, I think It's one thing to attack it from
the podium or on social media and another in a
court of law. You know, they've put forward some kind
of contrived argument, but it seems in this particular context
pretty clear case that a class action would apply. That's
I think why the Supreme Court in the Acosta case,
(08:13):
you know, spends a good bit of time talking about
the class action. I think this made a good vehicle
for the Court to pamp down on nationwide injunctions because
it seemed like, in my view, and the Court's recognizing
that this would have been the proper way of going
about preceding here in a class action format. There may
(08:34):
be other situations where it might be stretching it, and
we'll have to see. I mean, I do know that
the Supreme Court has been a little bit reining in
even on how frequently lower court judges are certifying classes.
But the factual and legal issues here really are the same.
You know, you have parents that meet the criteria in
(08:54):
the Executive Order and a child that's born in the
United States. That's paradigmatic, and that's not a whole lot
that's going to vary from one person to the next.
Speaker 2 (09:05):
In his concurring opinion, Justice Brett Kavanaugh mentioned the Administrative
Procedure Act as providing the equivalent of a universal injunction,
and so a federal judge in New York cited the
APA when he set aside the administration's decisions to end
legal protections for Haitian migrants. A Washington judge did the
(09:26):
same in the case reviving asylum. Would these cases normally
have been brought under the APA or is this happening
because of the Supreme Court's cost A decision.
Speaker 1 (09:38):
There's an important difference in what we can say about
whether these are being brought under the APA, whether the
relief comes from and is authorized by the APA. So
it may be that, you know, these are being brought
under immigration statutes, or they're being brought, you know, in
the birthright citizenship under a of constitutional law, the fourteenth Amendment.
(10:03):
But these all are revolving around the questions of what
the relief is that can be provided. And you're right,
you're exactly right to say that. You know, these judges
now are saying, well, there's relief that can be granted,
not through a preliminary injunction, which is grounded in the
law of equity. That goes back to even the founding
(10:26):
of our country and to some of the early statutes
giving courts authority, like the Judiciary Act of seventeen eighty nine.
That's what the Costa Court said, Well, no, that doesn't
give you the ability. Now they're saying, well, we have
another pathway, and I think you're right to say that
(10:46):
this is maybe a workaround. One might look at it
that way, but it's also just another alternative pathway, the
same way that you know, we all know that if
someone take a completly different context, if somebody is accused
of a crime and is found to be, you know,
(11:06):
not guilty, it just means that the prosecutors haven't met
the burden of proof beyond a reasonable doubt that the
person's guilty. It doesn't name that you can't then proceed
with civil actions against that person. In law, we often
have these multiple pathways, and as long as you have
(11:27):
one that's met, well, you know, maybe you don't need
to use the others. So, yes, the federal courts haven't
always invoked the Administrative Procedure Act, perhaps in the same
way that these judges are now right after Costa. But
you know, they and the litigants who are making arguments
(11:48):
before them are just doing what lawyers and judges do
all the time. If you know one pathway or one
possible means of getting some relief is not permissible, well
then go with what is permissible.
Speaker 2 (12:02):
Coming up the drawbacks to using the APA, this is
bloomberg in a lot of a Supreme Court's decision at
the end of June limiting the ability of federal judges
to issue nationwide injunctions. Some judges have been blocking the
Trump agenda by using the alternative pass suggested by the justices.
I've been talking to Professor Carrie Coliniesi of the University
(12:24):
of Pennsylvania Carrie Law School. Are there drawbacks to using
the Administrative Procedure Act Because it has to be used
to vacate an agency's action, so it can't be used
to attack an executive order.
Speaker 1 (12:38):
It's a weaker tool. Since a Supreme Court decision in
nineteen ninety two Franklin versus Massachusetts, it's generally thought that
the Administrative Procedure Act doesn't really apply to the president.
You know that we can probably debate how Franklin Vief
Massachusetts is, But yeah, I think that you would ordinately
(13:00):
not see these apa set asides against anything other than agencies.
But you know, executive orders themselves rarely are self implementing,
so all that executive orders, almost all executive orders are
just that they're ordering administrative agencies at the federal level
(13:22):
to do something, and when they do it, they're subject
to the Administrative Procedure Act. So you know, I think
it's still quite a feasible pathway to address something that's
objectionable about an executive order, just you have to wait
until some agency actually follows that executive order for it
to apply.
Speaker 2 (13:42):
Some government lawyers in cases are asking judges to pair
back their injunctions because of the Supreme Court's ruling. Is
that likely to happen?
Speaker 1 (13:52):
Well, I mean, I think it's probably likely that we'll
have to have a reassessment of some of these nationwide injunctions,
but that reassessment is in many cases likely still to
result in what is effectively some nationwide relief when any
(14:14):
of the three available still available pathways exist. One is
an equitable nationwide injunction, when complete relief it can only
be provided that way. Two is through a class action,
and three is through the administrative Procedure Act, and it's
set aside provisions in section seven six.
Speaker 2 (14:38):
Considering all this that, as far as we've seen, a
lot of plaintiffs are succeeding with these alternative paths. How
much do you think the Supreme Court ruling is really
going to help the Trump administration? How big a win
was this for the Trump administration?
Speaker 1 (14:54):
Well, it's certainly not as big a win as they've
laid out, you know, and claimed for themselves. That's hardly
the first time, right, they are quite frankly other politicians
right exaggerate what they have obtained. You know, I think
in the birthright citizenship case it's probably not likely to
be much of a win at all. And then the
(15:17):
question is, will it, maybe at the margin, make it
more difficult to obtain what is some kind of nationwide
relief in other cases? And probably that's true because complete
relief might not always be evident. It might be harder
(15:38):
to meet the class certification standards, especially if the Supreme
Court wants to scrutinize those even more rigorously. And this
set aside will only apply and you know in some
proportion of the cases where there might want to be
some nationwide relief and the Cost Court. By the way,
(15:59):
also with respect to the set aside under the Administrative
Procedure Act, it says we're not deciding anything on that,
so expect more litigation about really the extent to which
courts can must rely on the set aside provision in
five USC. Section seven oh six of the Administrative Procedure Act.
Speaker 2 (16:24):
Yeah, that was my next question. How fast do you
think this is going to return to the Supreme Court?
Speaker 1 (16:29):
Well, Justice Kavanaugh seemed to think in his separate opinion
in the cost Of case that you know, the Supreme
Court is going to be at the ready to resolve
a lot of these preliminary relief questions, and that we're
going to start to see, you know, even more of
(16:50):
what we've already been seeing, which is cases going right
on up to the Supreme Court in a way that
I think certainly ten years ago, years ago, the Supreme
Court wouldn't have been weighing in as readily and frequently.
But yes, definitely expect more Supreme Court action. In some ways,
that's an important upshot of the Kasa decision is that
(17:14):
the Supreme Court is still calling a lot of shots
with respect to how and when the executive branch can
be held to account for and be constrained by the
rule of law.
Speaker 2 (17:28):
And why do you think so many people are paying attention,
even some judges to Justice Alito's concurrence in Kasa, where
he warns about the court strictly adhering to the requirements
for class certification, etc.
Speaker 1 (17:44):
Well, this is a Supreme Court that is remaking a
good bit of what was for a long time fairly
settled law, especially with respect to the relationship between the
courts and the executive branch. And on the one hand,
this court is skeptical of administrative power, but on the
(18:05):
other hand it seems also to be supportive of presidential
power to a larger extent than prior courts. And what's
really an issue? And in some ways with the Alito
separate opinion, which by the way, only attracted one other justice,
so maybe that should itself indicate that it's not really
(18:25):
going to be meaningful. But I think what he raises
is this really at this heart of this matter is
how much should the courts be weighing in and providing
relief when the executive branch is undertaking action that at
least the litigants think is unlawful. And you know, if
(18:47):
you think that there's a need for strong presidential power,
then you might want to have lower courts be more
limited in when they can issue nationwide injunctions, letting a
president's administration go forward with action even if it's being
challenged in court, giving a little bit more leeway to
(19:09):
the president. On the other hand, if you're skeptical of
administrative agencies in their power, you might want to see
the ability for more judicial scrutiny of administrative action. And
I think goes the opposite of what Alito and Thomas
were urging, And maybe we should have more liberal use
of the set aside provision under the APA or under
(19:32):
class actions. So I mean, I think, really this is
a fascinating, fascinating case because it's really a pivot point
in this tension between presidential power and the administrative state.
And then where do the courts find themselves situate? As
here in kind of policing the boundaries of the rule
(19:53):
of law, we're in a realm in which the lower
courts are faithful agents. I think of a body of
law that has existed for a long time, and they're
in a sense in case after case it seems, getting
the rug pulled out from under them. And so they're
(20:14):
dutifully when faced with alternative arguments and alternative bases for
providing relief, calling it like they see it, and that
is the rule of law. That is what lower court
judges should be doing. At times, seems like the Supreme
Court doesn't really have those lower court justices back, if
(20:37):
you will, And it's a very interesting time to have
a Supreme Court that, you know, whether it's on presidential
immunity or other questions here, you know, really kind of
undermining what the lower courts as dutiful agents of enforcers
of the law, as they should.
Speaker 2 (20:57):
There are only two justices who have trial court experience.
Justice is Sonya Sotomayor and Katanji Brown Jackson. And I
wonder if that plays into the justice's attitudes towards the
trial court judges.
Speaker 1 (21:11):
Sometimes there's accusations of ideological differences, but I think there's
another difference here. It's just the Supreme Court is overseeing
an entire judicial system, and it seems that as of late,
you know, at least impressionistically, in a lot of important cases,
the lower courts are calling it like what all the experts,
(21:33):
even my law students would have said, you know, this
is the right answer. I mean, just you know, black
letter law, and yet we're changing things.
Speaker 2 (21:43):
So yeah, it seems like the value of precedent has
diminished a great deal. Thanks so much Carrie for joining me.
That's Professor Carry Colinisi of the University of Pennsylvania Carrie
Law School. This term, the Trump administration is bagging behind
the Biden administration and the first Trump administration in judicial appointments.
(22:06):
Joining me is Professor Carl Tobias of the University of
Richmond Law School. So Carl Whitney Hermanndorffer is going to
be the first judge confirmed for the Trump administration this
time around. How does this compare, you know, one judge
at this point in July, mid July, compared to how
(22:27):
many judges Biden had confirmed by this point and how
many judges Trump had confirmed by this point in his
first term.
Speaker 4 (22:36):
I don't have the right infirm me, but I think
Biden was somewhere between five and ten, and a couple
of them were appellate judges, and then Trump, I think
might have been a little slower than Biden, and he
had three or four or so maybe five, but all
(22:58):
of them, you know, started fairly slowly, but I think
it is much slower than he did in the first term.
But he has been busy doing lots of other things.
Speaker 2 (23:08):
Well. Is it also that not as many judges are
taking retirement.
Speaker 4 (23:15):
Yes, of course, because remember a Republican majority in the
last two years of Obama's presidency did not confirm very
many people at all, in fact, the fewest since Harry
Truman was president, and so that meant that more than
a hundred vacancies appellot and district were available for Trump
(23:41):
to fill, and so of course he was bound to
determined to fill all of those, and did fill all
of the appellate ones, which hadn't happened since nineteen eighty
four during Reagan's administration. So he was focused like a
laser on the appeals courts and had many to fill.
Speaker 2 (24:01):
Bloomberg Law reported recently that even Republican judges are hesitant
right now to retire because of the fact that Trump
in the second term is looking for Trump loyalists rather
than just conservatives.
Speaker 4 (24:19):
Yes, as your reporter said, and a number of people
have pointed out, there have been hardly any judges appointed
by Democrats or Republicans this year who have chosen to
take senior status. And I think it's especially compelling at
the appellate level. I don't believe any appellate judge has
(24:43):
said that the person has the intention to assume senior status.
And part of that I think is seeing some of
Trump's two point zero nominees, at least that's what the
legal press is saying.
Speaker 2 (24:58):
So speaking of one of his nomine that was controversial
to start out with, that's Emil Beauvet, and he wouldn't
answer directly if Trump could serve a third term in
office under the constitution. A lot of the nominees won't
say whether Biden really won the election or not. They'll
(25:20):
say things like, well, he was president, he was sworn in.
I mean, this takes partisanship to a new level, doesn't it.
Speaker 4 (25:28):
Well, I think it does, which is unfortunate. Of course,
that's very true, especially of the Department of Justice nominees
who's been confirmed, especially at the upper echelon level. But
Bode also declined to say whether he had said something
very degrading about the district judges and whether court orders
(25:56):
would be followed by this administration, and he just refused
to weigh in on whether he had said that and
used a very bad word to describe that. So it's
just unclear. But he had very few straightforward answers in
(26:16):
the hearing, especially from Democrats questioning him and the kind
of questions that you're asking about January sixth and others,
and just left I think a number of people wondering
what exactly he would do, whether he had proper temperament
for someone to sit on the US Court of Appeals
(26:38):
for the Third Circuit if his vote.
Speaker 2 (26:40):
Goes down party lines. I mean, is there anyone that
the Republicans won't push through then? Because there's also, you know,
as you mentioned, whistleblower allegations, and there have been confirming
documents about them. So either you believe the whistle blower
or you believe him you denied the whole thing.
Speaker 4 (26:59):
Well, that's a good question. I think some people thought
that Senator tell Us from North Carolina might vote know,
given what he did by way of saying he would
oppose Ed Martin for DC US Attorney. But he said
just last week that he probably would vote for bov
(27:23):
because his staff recommended that he vote yes. I don't
know what he will do. But it is possible that
there will be another twelve to ten party line vote
on this nominee, and then it goes to the floor,
and the question is whether Democrats can muster enough votes
(27:47):
from Republicans on the floor, and they are likely to
be relatively deferential to their Judiciary Committee members and their vote.
If it turns out that way, he's an eleven eleven vote.
It gets the closer.
Speaker 2 (28:01):
Trump is nominating Eric Chung, a former federal prosecutor for
the ninth Circuit, so he's replacing a George W. Bush appointee,
So that won't shift the balance on that court.
Speaker 4 (28:13):
That's right. It still would be sixteen active judges appointed
by Democratic presidents and thirteen appointed by Republican presidents. As
you know. Of course, Trump has appointed ten in one
point oh to that court, which makes it much closer
than it used to be in terms of appointing president.
Speaker 2 (28:36):
What about Toung? Is there any opposition to him?
Speaker 4 (28:39):
Not that I've heard of. I mean, he looks more
to me and others like the one point oh nominees
who are members of the Federalist Society. He is at
Don mcgahn's firm, who you know, was the White House
Council for the first two years of one point zero.
(29:00):
Has done a lot of commercial litigation and work of
that sort, but he would be a classic one point
oh nominee. So there is some levining there may be
on the part of Trump and the other person for
the first Circuit in Maine named Joshua Dunlap, a similar
sort of nominee. That was the seat that was to
(29:23):
go to the person who's now in the Main Supreme Court,
Julia Lippez. When the deal was struck with Schumer for
the four appellate nominees who did not get votes in
return for the twelve district nominees who did in November
last year, And is there.
Speaker 2 (29:41):
A hold up for confirmation of the US attorneys in
the Southern and Eastern districts of New York.
Speaker 4 (29:49):
What I think is going on there is Schumer is
not returning his blue slip for Clayton on the Southern
district and the same for the Eastern District nominee, and
Graftley has said he will honor that. So Trump has
to come up with another nominee for both of those
US attorney positions. Is the way I understand it, so
(30:12):
he hasn't done that, and then it falls to the
judges of the district. They have the discretion to appoint
somebody else when the acting or interim's time expires one
hundred and twenty days.
Speaker 2 (30:27):
And also the federal judges in the Northern District of
New York decline to appoint John Sarcone, who was Trump's
temporary US Attorney pick, to permanently serve as the top prosecutor.
There is that unusual.
Speaker 4 (30:44):
He has very unusual. It's rare that they their judges
go forward and exercise that discretion, but they do sometimes,
and in this situation they decline to go forward with him,
And so now I don't know exactly why it is
going to happen. I was surprised they didn't then name
(31:06):
somebody else, which they have the authority to do. But
maybe they'll do that in the coming days.
Speaker 2 (31:11):
Do you have any hint as to why they didn't
confirm him.
Speaker 4 (31:16):
Well, there are a number of reports in the newspapers
in the Northern District, especially Albany Paper, but some others
that left the impression that the judges were not happy
with his work during that one hundred and twenty days
and there were questions about where he lived. He's from
(31:37):
Westchester County. And also he was said that in the
first term of Trump he was hoping to be appointed
at the federal bench, and he also hopes to be
appointed to the federal bench in this term. And so
some of that may not have sat well with the
judges of the Northern District. I don't know, but in
any event, they've declined to exercise it, even though they
(31:58):
have that discussion and could do that and could do
it yet otherwise, I think it's back to the drawing boards,
and then maybe the president would have some other permanent
nominee for that position who could be confirmed by the Senate.
But also if the judges go ahead and appoint someone,
that person would be acting or interim in that period
(32:18):
until there was a nominee from the White House who
was confirmed.
Speaker 2 (32:22):
Istrup also being slow about making nominations for US attorneys.
Speaker 4 (32:27):
Yes, and this is in contrast to one point zero
where he named eighty five US attorneys who were confirmed
on bipartisan votes. And so it's troubling that he is
moving so slowly now. But for some reason he's using
interims and actings rather than appointing permanent people, and that
(32:51):
avoids the advice and consent of the Senate, and I
think the Senate is not happy about that, especially Judiciary
Committee members, because they're supposed to have that opper that's
in the Constitution. So it's just unclear what they're doing.
And so right now we have maybe twenty to twenty
five whom the President has nominated, but not one has
(33:12):
been confirmed yet. And the reason for that is Dick Durbin,
the ranking member on Judiciary, has said that he's holding
up all of those people on the floor should they
get there, because Vice President Vance, as a Senator from Ohio,
refused to confirm Durbin's nominee for the Northern District of Illinois,
(33:35):
as well as Vance's own person for the Northern District
of Ohio because he didn't like what was going on
as the Justice Department. Twenty three, twenty four.
Speaker 2 (33:47):
It's payback. What can I say, Chuck Schumer's holding the
US attorney nominee because Trump accepted that jet. You can't
make this stuff up. Hookay, Carl, thanks so much. That's
Professor Carl Tobias of the University of Richmond Law School,
and that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
(34:10):
and at www dot bloomberg dot com slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
At the end of June, President Trump celebrated the Supreme
Court's decision limiting the ability of federal judges to issue
nationwide injunctions.
Speaker 3 (00:17):
Thanks to this decision, we can now promptly file to
proceed with numerous policies that have been wrongly enjoined on
a nationwide basis. And some of the cases we're talking
about would be ending birthright citizenship, which now comes to the.
Speaker 2 (00:34):
Fore but a federal judge stop that from happening. And
though it's clear the decision was a win for the
Trump administration, how big a win has yet to be determined.
In the last few weeks, federal judges have been using
the alternative options offered by the justices to block the
Trump agenda nationwide. For example, judges have blocked the enforcement
(00:58):
of Trump's birthright CIS citizenship order, restored public health data
to government websites, and struck down Trump's ban on asylum claims.
Joining me to discuss just how much that Supreme Court
decision will benefit the Trump administration is Carrie Kolonisi, a
professor at the University of Pennsylvania. Carrie, Law School and
(01:19):
director of the Penn Program on Regulation. Carrie, what did
the majority suggest in the KASA decision as alternative paths
to getting nationwide injunctions?
Speaker 1 (01:31):
Well, first of all, you still can get nationwide or
universal injunctions. I mean that people use different language but
basically the same thing, and you still under KASA can't
get it when just an injunction confined to the parties
would not provide the parties with complete relief. So we
(01:53):
might see, and in fact, the court suggests even that
the states that were challenging the Birthright Citizenship Order could
well have a basis for getting a nationwide injunction because
they need it for complete relief. People move from one
(02:14):
part of the country to the other, from one state
to the other states, and without some national uniformity in
this litigation, states will not know whether they should be
giving certain people federally funded benefits that apply only for citizens.
For example, you know, they'll need to probably redo a
(02:37):
lot of their administrative paperwork or hire more workers to
handle applications.
Speaker 4 (02:42):
It'd be a.
Speaker 1 (02:43):
Quagmire for a lot of states. So, first of all,
that's one key thing is that Trump BECAUSA doesn't say,
like absolutely never a nationwide injunction, but probably you know,
most cases that won't be possible. But in this case,
with birthright citizenship and the states that are suing, it
might be obtainable because anything short of that would not
(03:06):
give the litigans complete relief. So that's one thing to know.
But then the court, as you suggest, also says, gee,
there can be other ways of getting what is essentially
nationwide injunctive relief. We wouldn't call it a nationwide injunction,
but it's essentially going to be the same thing, and
(03:26):
that would be through certifying a class action. So litigants
come forward all the time, We have the class actions
all the time, where the court is making a decision
that applies to anybody within a certified class nationwide, and
in this birthright citizenship context, that would seem also to
(03:47):
easily apply. There are some standards for what it takes
to qualify for a class, but once that's met, then
you could get nationwide relief. And a third option here
is something under the Administrative Procedure Act, which is a
statute that applies to any of the federal government agencies
actions and there's a provision in the APA as it's
(04:11):
known that allows courts to set aside unlawful actions. It's
not just even allows it, but it says the court
shall set aside unlawful actions, and that's a possibility. The
Court in the cost case doesn't say much about this
set aside option under the Administrative Procedure Act, but it
(04:32):
does acknowledge in a footnote that it's not saying that
it can't apply, and in fact, in various other contexts
and Supreme Court oral arguments and the like, for example,
and actually a longstanding tradition since at least the nineteen sixties,
the federal courts have used this set aside language to
(04:53):
hold unlawful a government policy, regulation, guidance that applies nationwide.
If it's not lawful, it's hard to say how a
government policy could still apply to folks who just don't
happen to have the ability to go into court to
challenge it. If it's unlawful, it's unlawful. And so anyway,
(05:14):
there's a real possibility that both in the birthright citizenship
case and in a lot of other cases, litigants are
going to be able to still get what is essentially
nationwide relief. Shutting down unlawful policies or at least potentially
unlawful policies on a preliminary basis.
Speaker 2 (05:33):
On a national level, the New Hampshire Judge and the
birthright Citizenship case certified a class action lawsuit on behalf
of US born children or future children whose automatic citizenship
could be jeopardized by President Trump's executive order, so wherever
those children may be across the country, So in effect
(05:55):
it's a nationwide injunction. Was he working within the confines
of the S'preme Court's decision or was this sort of
a workaround.
Speaker 1 (06:04):
Well, the New Hampshire Judge just recently says that, you know,
I'm going to recognize, at least on a putative basis,
that there's a class here. It meets all the requirements
for a class action. Rule twenty three are into the
Federal Rules of Civil Procedure outline for criteria that have
to be met, and it certainly makes a lot of
(06:27):
sense that those would be met. In the birthright citizenship context.
You need a lot of people that would be affected
such that the courts just wouldn't be able to bring,
you know, maybe two or three or four or five
lawsuits and bring them together and try them together. Maybe
they were talking about thousands and in this case tens
of thousands maybe right away, perhaps possible lawsuits. So there's
(06:49):
a numerosity, there's a common factual and legal predicate that.
Speaker 4 (06:55):
Has to be met.
Speaker 1 (06:56):
And again it seems like this is pretty much the
everybody is going to have the same criteria. Either were
born in the United States or you weren't. And third,
there really is an ability to effectively pursue relief for
everybody by just trying a few people, and that there's
(07:16):
fourth effective representation for the full class. And the judge
in New Hampshire says, I think we've got that. I
think we've got a class action here. So in the
birthright citizenship case, that seems to be an avenue. And
we still may also see in some of the state
challengers coming forward, and a judge is saying we need
to put in place a nationwide injunction to provide complete relief.
(07:39):
So that's also still out there.
Speaker 2 (07:41):
A Trump administration spokesperson said the judge was abusing the
class certification process. What do you think their arguments will
be against the certification of this class when they appeal.
Speaker 1 (07:53):
Well, I think It's one thing to attack it from
the podium or on social media and another in a
court of law. You know, they've put forward some kind
of contrived argument, but it seems in this particular context
pretty clear case that a class action would apply. That's
I think why the Supreme Court in the Acosta case,
(08:13):
you know, spends a good bit of time talking about
the class action. I think this made a good vehicle
for the Court to pamp down on nationwide injunctions because
it seemed like, in my view, and the Court's recognizing
that this would have been the proper way of going
about preceding here in a class action format. There may
(08:34):
be other situations where it might be stretching it, and
we'll have to see. I mean, I do know that
the Supreme Court has been a little bit reining in
even on how frequently lower court judges are certifying classes.
But the factual and legal issues here really are the same.
You know, you have parents that meet the criteria in
(08:54):
the Executive Order and a child that's born in the
United States. That's paradigmatic, and that's not a whole lot
that's going to vary from one person to the next.
Speaker 2 (09:05):
In his concurring opinion, Justice Brett Kavanaugh mentioned the Administrative
Procedure Act as providing the equivalent of a universal injunction,
and so a federal judge in New York cited the
APA when he set aside the administration's decisions to end
legal protections for Haitian migrants. A Washington judge did the
(09:26):
same in the case reviving asylum. Would these cases normally
have been brought under the APA or is this happening
because of the Supreme Court's cost A decision.
Speaker 1 (09:38):
There's an important difference in what we can say about
whether these are being brought under the APA, whether the
relief comes from and is authorized by the APA. So
it may be that, you know, these are being brought
under immigration statutes, or they're being brought, you know, in
the birthright citizenship under a of constitutional law, the fourteenth Amendment.
(10:03):
But these all are revolving around the questions of what
the relief is that can be provided. And you're right,
you're exactly right to say that. You know, these judges
now are saying, well, there's relief that can be granted,
not through a preliminary injunction, which is grounded in the
law of equity. That goes back to even the founding
(10:26):
of our country and to some of the early statutes
giving courts authority, like the Judiciary Act of seventeen eighty nine.
That's what the Costa Court said, Well, no, that doesn't
give you the ability. Now they're saying, well, we have
another pathway, and I think you're right to say that
(10:46):
this is maybe a workaround. One might look at it
that way, but it's also just another alternative pathway, the
same way that you know, we all know that if
someone take a completly different context, if somebody is accused
of a crime and is found to be, you know,
(11:06):
not guilty, it just means that the prosecutors haven't met
the burden of proof beyond a reasonable doubt that the
person's guilty. It doesn't name that you can't then proceed
with civil actions against that person. In law, we often
have these multiple pathways, and as long as you have
(11:27):
one that's met, well, you know, maybe you don't need
to use the others. So, yes, the federal courts haven't
always invoked the Administrative Procedure Act, perhaps in the same
way that these judges are now right after Costa. But
you know, they and the litigants who are making arguments
(11:48):
before them are just doing what lawyers and judges do
all the time. If you know one pathway or one
possible means of getting some relief is not permissible, well
then go with what is permissible.
Speaker 2 (12:02):
Coming up the drawbacks to using the APA, this is
bloomberg in a lot of a Supreme Court's decision at
the end of June limiting the ability of federal judges
to issue nationwide injunctions. Some judges have been blocking the
Trump agenda by using the alternative pass suggested by the justices.
I've been talking to Professor Carrie Coliniesi of the University
(12:24):
of Pennsylvania Carrie Law School. Are there drawbacks to using
the Administrative Procedure Act Because it has to be used
to vacate an agency's action, so it can't be used
to attack an executive order.
Speaker 1 (12:38):
It's a weaker tool. Since a Supreme Court decision in
nineteen ninety two Franklin versus Massachusetts, it's generally thought that
the Administrative Procedure Act doesn't really apply to the president.
You know that we can probably debate how Franklin Vief
Massachusetts is, But yeah, I think that you would ordinately
(13:00):
not see these apa set asides against anything other than agencies.
But you know, executive orders themselves rarely are self implementing,
so all that executive orders, almost all executive orders are
just that they're ordering administrative agencies at the federal level
(13:22):
to do something, and when they do it, they're subject
to the Administrative Procedure Act. So you know, I think
it's still quite a feasible pathway to address something that's
objectionable about an executive order, just you have to wait
until some agency actually follows that executive order for it
to apply.
Speaker 2 (13:42):
Some government lawyers in cases are asking judges to pair
back their injunctions because of the Supreme Court's ruling. Is
that likely to happen?
Speaker 1 (13:52):
Well, I mean, I think it's probably likely that we'll
have to have a reassessment of some of these nationwide injunctions,
but that reassessment is in many cases likely still to
result in what is effectively some nationwide relief when any
(14:14):
of the three available still available pathways exist. One is
an equitable nationwide injunction, when complete relief it can only
be provided that way. Two is through a class action,
and three is through the administrative Procedure Act, and it's
set aside provisions in section seven six.
Speaker 2 (14:38):
Considering all this that, as far as we've seen, a
lot of plaintiffs are succeeding with these alternative paths. How
much do you think the Supreme Court ruling is really
going to help the Trump administration? How big a win
was this for the Trump administration?
Speaker 1 (14:54):
Well, it's certainly not as big a win as they've
laid out, you know, and claimed for themselves. That's hardly
the first time, right, they are quite frankly other politicians
right exaggerate what they have obtained. You know, I think
in the birthright citizenship case it's probably not likely to
be much of a win at all. And then the
(15:17):
question is, will it, maybe at the margin, make it
more difficult to obtain what is some kind of nationwide
relief in other cases? And probably that's true because complete
relief might not always be evident. It might be harder
(15:38):
to meet the class certification standards, especially if the Supreme
Court wants to scrutinize those even more rigorously. And this
set aside will only apply and you know in some
proportion of the cases where there might want to be
some nationwide relief and the Cost Court. By the way,
(15:59):
also with respect to the set aside under the Administrative
Procedure Act, it says we're not deciding anything on that,
so expect more litigation about really the extent to which
courts can must rely on the set aside provision in
five USC. Section seven oh six of the Administrative Procedure Act.
Speaker 2 (16:24):
Yeah, that was my next question. How fast do you
think this is going to return to the Supreme Court?
Speaker 1 (16:29):
Well, Justice Kavanaugh seemed to think in his separate opinion
in the cost Of case that you know, the Supreme
Court is going to be at the ready to resolve
a lot of these preliminary relief questions, and that we're
going to start to see, you know, even more of
(16:50):
what we've already been seeing, which is cases going right
on up to the Supreme Court in a way that
I think certainly ten years ago, years ago, the Supreme
Court wouldn't have been weighing in as readily and frequently.
But yes, definitely expect more Supreme Court action. In some ways,
that's an important upshot of the Kasa decision is that
(17:14):
the Supreme Court is still calling a lot of shots
with respect to how and when the executive branch can
be held to account for and be constrained by the
rule of law.
Speaker 2 (17:28):
And why do you think so many people are paying attention,
even some judges to Justice Alito's concurrence in Kasa, where
he warns about the court strictly adhering to the requirements
for class certification, etc.
Speaker 1 (17:44):
Well, this is a Supreme Court that is remaking a
good bit of what was for a long time fairly
settled law, especially with respect to the relationship between the
courts and the executive branch. And on the one hand,
this court is skeptical of administrative power, but on the
(18:05):
other hand it seems also to be supportive of presidential
power to a larger extent than prior courts. And what's
really an issue? And in some ways with the Alito
separate opinion, which by the way, only attracted one other justice,
so maybe that should itself indicate that it's not really
(18:25):
going to be meaningful. But I think what he raises
is this really at this heart of this matter is
how much should the courts be weighing in and providing
relief when the executive branch is undertaking action that at
least the litigants think is unlawful. And you know, if
(18:47):
you think that there's a need for strong presidential power,
then you might want to have lower courts be more
limited in when they can issue nationwide injunctions, letting a
president's administration go forward with action even if it's being
challenged in court, giving a little bit more leeway to
(19:09):
the president. On the other hand, if you're skeptical of
administrative agencies in their power, you might want to see
the ability for more judicial scrutiny of administrative action. And
I think goes the opposite of what Alito and Thomas
were urging, And maybe we should have more liberal use
of the set aside provision under the APA or under
(19:32):
class actions. So I mean, I think, really this is
a fascinating, fascinating case because it's really a pivot point
in this tension between presidential power and the administrative state.
And then where do the courts find themselves situate? As
here in kind of policing the boundaries of the rule
(19:53):
of law, we're in a realm in which the lower
courts are faithful agents. I think of a body of
law that has existed for a long time, and they're
in a sense in case after case it seems, getting
the rug pulled out from under them. And so they're
(20:14):
dutifully when faced with alternative arguments and alternative bases for
providing relief, calling it like they see it, and that
is the rule of law. That is what lower court
judges should be doing. At times, seems like the Supreme
Court doesn't really have those lower court justices back, if
(20:37):
you will, And it's a very interesting time to have
a Supreme Court that, you know, whether it's on presidential
immunity or other questions here, you know, really kind of
undermining what the lower courts as dutiful agents of enforcers
of the law, as they should.
Speaker 2 (20:57):
There are only two justices who have trial court experience.
Justice is Sonya Sotomayor and Katanji Brown Jackson. And I
wonder if that plays into the justice's attitudes towards the
trial court judges.
Speaker 1 (21:11):
Sometimes there's accusations of ideological differences, but I think there's
another difference here. It's just the Supreme Court is overseeing
an entire judicial system, and it seems that as of late,
you know, at least impressionistically, in a lot of important cases,
the lower courts are calling it like what all the experts,
(21:33):
even my law students would have said, you know, this
is the right answer. I mean, just you know, black
letter law, and yet we're changing things.
Speaker 2 (21:43):
So yeah, it seems like the value of precedent has
diminished a great deal. Thanks so much Carrie for joining me.
That's Professor Carry Colinisi of the University of Pennsylvania Carrie
Law School. This term, the Trump administration is bagging behind
the Biden administration and the first Trump administration in judicial appointments.
(22:06):
Joining me is Professor Carl Tobias of the University of
Richmond Law School. So Carl Whitney Hermanndorffer is going to
be the first judge confirmed for the Trump administration this
time around. How does this compare, you know, one judge
at this point in July, mid July, compared to how
(22:27):
many judges Biden had confirmed by this point and how
many judges Trump had confirmed by this point in his
first term.
Speaker 4 (22:36):
I don't have the right infirm me, but I think
Biden was somewhere between five and ten, and a couple
of them were appellate judges, and then Trump, I think
might have been a little slower than Biden, and he
had three or four or so maybe five, but all
(22:58):
of them, you know, started fairly slowly, but I think
it is much slower than he did in the first term.
But he has been busy doing lots of other things.
Speaker 2 (23:08):
Well. Is it also that not as many judges are
taking retirement.
Speaker 4 (23:15):
Yes, of course, because remember a Republican majority in the
last two years of Obama's presidency did not confirm very
many people at all, in fact, the fewest since Harry
Truman was president, and so that meant that more than
a hundred vacancies appellot and district were available for Trump
(23:41):
to fill, and so of course he was bound to
determined to fill all of those, and did fill all
of the appellate ones, which hadn't happened since nineteen eighty
four during Reagan's administration. So he was focused like a
laser on the appeals courts and had many to fill.
Speaker 2 (24:01):
Bloomberg Law reported recently that even Republican judges are hesitant
right now to retire because of the fact that Trump
in the second term is looking for Trump loyalists rather
than just conservatives.
Speaker 4 (24:19):
Yes, as your reporter said, and a number of people
have pointed out, there have been hardly any judges appointed
by Democrats or Republicans this year who have chosen to
take senior status. And I think it's especially compelling at
the appellate level. I don't believe any appellate judge has
(24:43):
said that the person has the intention to assume senior status.
And part of that I think is seeing some of
Trump's two point zero nominees, at least that's what the
legal press is saying.
Speaker 2 (24:58):
So speaking of one of his nomine that was controversial
to start out with, that's Emil Beauvet, and he wouldn't
answer directly if Trump could serve a third term in
office under the constitution. A lot of the nominees won't
say whether Biden really won the election or not. They'll
(25:20):
say things like, well, he was president, he was sworn in.
I mean, this takes partisanship to a new level, doesn't it.
Speaker 4 (25:28):
Well, I think it does, which is unfortunate. Of course,
that's very true, especially of the Department of Justice nominees
who's been confirmed, especially at the upper echelon level. But
Bode also declined to say whether he had said something
very degrading about the district judges and whether court orders
(25:56):
would be followed by this administration, and he just refused
to weigh in on whether he had said that and
used a very bad word to describe that. So it's
just unclear. But he had very few straightforward answers in
(26:16):
the hearing, especially from Democrats questioning him and the kind
of questions that you're asking about January sixth and others,
and just left I think a number of people wondering
what exactly he would do, whether he had proper temperament
for someone to sit on the US Court of Appeals
(26:38):
for the Third Circuit if his vote.
Speaker 2 (26:40):
Goes down party lines. I mean, is there anyone that
the Republicans won't push through then? Because there's also, you know,
as you mentioned, whistleblower allegations, and there have been confirming
documents about them. So either you believe the whistle blower
or you believe him you denied the whole thing.
Speaker 4 (26:59):
Well, that's a good question. I think some people thought
that Senator tell Us from North Carolina might vote know,
given what he did by way of saying he would
oppose Ed Martin for DC US Attorney. But he said
just last week that he probably would vote for bov
(27:23):
because his staff recommended that he vote yes. I don't
know what he will do. But it is possible that
there will be another twelve to ten party line vote
on this nominee, and then it goes to the floor,
and the question is whether Democrats can muster enough votes
(27:47):
from Republicans on the floor, and they are likely to
be relatively deferential to their Judiciary Committee members and their vote.
If it turns out that way, he's an eleven eleven vote.
It gets the closer.
Speaker 2 (28:01):
Trump is nominating Eric Chung, a former federal prosecutor for
the ninth Circuit, so he's replacing a George W. Bush appointee,
So that won't shift the balance on that court.
Speaker 4 (28:13):
That's right. It still would be sixteen active judges appointed
by Democratic presidents and thirteen appointed by Republican presidents. As
you know. Of course, Trump has appointed ten in one
point oh to that court, which makes it much closer
than it used to be in terms of appointing president.
Speaker 2 (28:36):
What about Toung? Is there any opposition to him?
Speaker 4 (28:39):
Not that I've heard of. I mean, he looks more
to me and others like the one point oh nominees
who are members of the Federalist Society. He is at
Don mcgahn's firm, who you know, was the White House
Council for the first two years of one point zero.
(29:00):
Has done a lot of commercial litigation and work of
that sort, but he would be a classic one point
oh nominee. So there is some levining there may be
on the part of Trump and the other person for
the first Circuit in Maine named Joshua Dunlap, a similar
sort of nominee. That was the seat that was to
(29:23):
go to the person who's now in the Main Supreme Court,
Julia Lippez. When the deal was struck with Schumer for
the four appellate nominees who did not get votes in
return for the twelve district nominees who did in November
last year, And is there.
Speaker 2 (29:41):
A hold up for confirmation of the US attorneys in
the Southern and Eastern districts of New York.
Speaker 4 (29:49):
What I think is going on there is Schumer is
not returning his blue slip for Clayton on the Southern
district and the same for the Eastern District nominee, and
Graftley has said he will honor that. So Trump has
to come up with another nominee for both of those
US attorney positions. Is the way I understand it, so
(30:12):
he hasn't done that, and then it falls to the
judges of the district. They have the discretion to appoint
somebody else when the acting or interim's time expires one
hundred and twenty days.
Speaker 2 (30:27):
And also the federal judges in the Northern District of
New York decline to appoint John Sarcone, who was Trump's
temporary US Attorney pick, to permanently serve as the top prosecutor.
There is that unusual.
Speaker 4 (30:44):
He has very unusual. It's rare that they their judges
go forward and exercise that discretion, but they do sometimes,
and in this situation they decline to go forward with him,
And so now I don't know exactly why it is
going to happen. I was surprised they didn't then name
(31:06):
somebody else, which they have the authority to do. But
maybe they'll do that in the coming days.
Speaker 2 (31:11):
Do you have any hint as to why they didn't
confirm him.
Speaker 4 (31:16):
Well, there are a number of reports in the newspapers
in the Northern District, especially Albany Paper, but some others
that left the impression that the judges were not happy
with his work during that one hundred and twenty days
and there were questions about where he lived. He's from
(31:37):
Westchester County. And also he was said that in the
first term of Trump he was hoping to be appointed
at the federal bench, and he also hopes to be
appointed to the federal bench in this term. And so
some of that may not have sat well with the
judges of the Northern District. I don't know, but in
any event, they've declined to exercise it, even though they
(31:58):
have that discussion and could do that and could do
it yet otherwise, I think it's back to the drawing boards,
and then maybe the president would have some other permanent
nominee for that position who could be confirmed by the Senate.
But also if the judges go ahead and appoint someone,
that person would be acting or interim in that period
(32:18):
until there was a nominee from the White House who
was confirmed.
Speaker 2 (32:22):
Istrup also being slow about making nominations for US attorneys.
Speaker 4 (32:27):
Yes, and this is in contrast to one point zero
where he named eighty five US attorneys who were confirmed
on bipartisan votes. And so it's troubling that he is
moving so slowly now. But for some reason he's using
interims and actings rather than appointing permanent people, and that
(32:51):
avoids the advice and consent of the Senate, and I
think the Senate is not happy about that, especially Judiciary
Committee members, because they're supposed to have that opper that's
in the Constitution. So it's just unclear what they're doing.
And so right now we have maybe twenty to twenty
five whom the President has nominated, but not one has
(33:12):
been confirmed yet. And the reason for that is Dick Durbin,
the ranking member on Judiciary, has said that he's holding
up all of those people on the floor should they
get there, because Vice President Vance, as a Senator from Ohio,
refused to confirm Durbin's nominee for the Northern District of Illinois,
(33:35):
as well as Vance's own person for the Northern District
of Ohio because he didn't like what was going on
as the Justice Department. Twenty three, twenty four.
Speaker 2 (33:47):
It's payback. What can I say, Chuck Schumer's holding the
US attorney nominee because Trump accepted that jet. You can't
make this stuff up. Hookay, Carl, thanks so much. That's
Professor Carl Tobias of the University of Richmond Law School,
and that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
(34:10):
and at www dot bloomberg dot com slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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