This is Bloomberg Law with June Grossel from Bloomberg Radio.
At the end of June, President Trump celebrated the Supreme Court's decision limiting the ability of federal judges to issue nationwide injunctions.
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.
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 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 director of the Penn Program on Regulation. Carrie, what did the majority suggest in the KASA decision as alternative paths to getting nationwide injunctions?
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 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 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 lot of their administrative paperwork or hire more workers to handle applications.
It'd be a.
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 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
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 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 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 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
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, 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.
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 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.
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 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 a numerosity, there's a common factual and legal predicate that.
Has to be met.
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 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. So that's also still out there.
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.
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, 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 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 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.
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 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.
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. 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 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 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, 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 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 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.
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
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.
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 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 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.
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?
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 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.
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?
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 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 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, 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.
Yeah, that was my next question. How fast do you think this is going to return to the Supreme Court?
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 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 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.
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.
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 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 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 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 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 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 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 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 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.
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.
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, 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.
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. 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 many judges Biden had confirmed by this point and how many judges Trump had confirmed by this point in his first term.
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 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.
Well. Is it also that not as many judges are taking retirement.
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 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.
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.
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 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.
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 say things like, well, he was president, he was sworn in. I mean, this takes partisanship to a new level, doesn't it.
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 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 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 for the Third Circuit if his vote.
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.
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 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 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.
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.
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.
What about Toung? Is there any opposition to him?
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. 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 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.
A hold up for confirmation of the US attorneys in the Southern and Eastern districts of New York.
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 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.
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.
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 somebody else, which they have the authority to do. But maybe they'll do that in the coming days.
Do you have any hint as to why they didn't confirm him.
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 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 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 until there was a nominee from the White House who was confirmed.
Istrup also being slow about making nominations for US attorneys.
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 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
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, 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.
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, 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