Checks and Balances in the Balance at SCOTUS (with Melissa Murray, Trevor Morrison & Jack Goldsmith)
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A NOTE FROM THE PRODUCER
is an editorial producer on Stay Tuned with Preet.Last week, the Supreme Court handed down its final decisions of the term, closing out the merits docket (there are still a few outstanding decisions awaiting their turn in the emergency—or “shadow”—docket). As with many Junes over the last few years, this one saw major changes to established law around trans youth healthcare, Planned Parenthood patient access, religious freedom, and nationwide injunctions—or, the ability for lower federal courts to block executive orders throughout the country.
While that last case, Trump v. CASA, is a challenge to President Trump’s executive order to end birthright citizenship, the legal issue and the ruling are in fact not about that at all. Since Trump’s inauguration, lower federal courts have halted executive actions they found to be illegal more than 190 times.
Now, the Supreme Court said: Enough.
On the Stay Tuned podcast, we gathered a distinguished panel of constitutional and Supreme Court experts to weigh in on the decision’s doctrinal and practical consequences.
Trevor Morrison, constitutional law professor at NYU and the school’s Dean Emeritus, has a background in the executive branch: “I have very significant sympathy for presidential administrations that feel that they have been in ways sort of illegitimately undermined by forum shopping…where single district judges have issued a very large number of nationwide injunctions in response to a very large number of extremely aggressive presidential programs issued through executive orders by the new Trump administration. And I think in ways even accepting the very arguable illegality of that, the ability of a single federal district judge to just paralyze a presidential administration strikes me as problematic.”
The Supreme Court has had the chance to limit nationwide injunctions many times before this case. So why now?
Melissa Murray, also a constitutional law professor at NYU and host of the popular podcast Strict Scrutiny, discussed the alarming timing: “The spate at which this administration is issuing executive orders, which in many cases seem to defy ordinary separation of power, seem to defy the Constitution, seem to defy the rule of law, is absolutely breathtaking. And at this moment, the Court has decided to step in to narrow the scope of universal injunctions as an available remedy. And in doing so, I think it's really hobbled the lower courts in trying to rein in this administration at a time when the lower courts have been really the only meaningful check on this president.”
Jack Goldsmith, law professor at Harvard and author of the Substack newsletter Executive Functions, had a slightly different perspective: “The context is that these lower court universal injunctions, many of which the court disagreed with on the merits, were causing the federal judiciary a huge problem given the Trump administration and it's really extraordinarily vicious, dangerous attacks [on the judiciary]. Now, you can say that's the Court caving, but I don't think it's the Court caving since the Court was inclined to do this in any event.”
The conversation was super in-depth and I, even after helping Preet prep for it, learned a ton from our guests, who didn’t always agree, but who are rigorous and thoughtful—exactly the kind of people we love to have on the show.
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Was the U.S. Bombing of Iran Constitutional? (with Jack Goldsmith & Trevor Morrison)
In this bonus from Stay Tuned, Preet is joined by law professors and executive power experts Jack Goldsmith and Trevor Morrison to discuss the constitutionality of the U.S. strikes on Iran’s nuclear facilities and the complicated nature of war powers.
I kept waiting for you or one of your guests to explain something I don’t understand about the universal injunctions case: If the executive order applies universally why wouldn’t the injunction as well? If the president can apply his order to the entire population, why would an injunction addressing that order apply only to the person or entity challenging it? What am I missing?
“While that last case, Trump v. CASA, is a challenge to President Trump’s executive order to end birthright citizenship, the legal issue and the ruling are in fact not about that at all.”
This is semantic caviling on the ninth part of a hair. Agent Orange’s legal team — and, I’ll wager, the SCOTUS Six — is counting on plaintiffs not being able to file enough cases within enough jurisdictions within the specified 30 days of their ruling to allow his birthright citizenship ban to become effective in large parts of the country. Once birthright citizens have been detained or deported, how are they going to be able to return if the case has been overturned on the merits? The Supremes could have ruled on the merits, but chose not to.