Latest / The Ben Ferguson Podcast / Can a Single Judge Halt a Nation? Supreme Court to Decide

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Can a Single Judge Halt a Nation? Supreme Court to Decide · The Ben Ferguson Podcast

• 0:01
  Speaker 1: It is a major day at the Supreme Court, and
• 0:04
  Speaker 1: I am live literally at the Supreme Court, staring at
• 0:06
  Speaker 1: it as we speak, as the court is hearing major
• 0:09
  Speaker 1: arguments on multiple different cases. Now in a moment, we're
• 0:13
  Speaker 1: going to be joined by the Attorney General of West Virginia,
• 0:16
  Speaker 1: who is talking about these district courts that have gone rogue,
• 0:19
  Speaker 1: putting nationwide injunction on Donald Trump many are describing in
• 0:23
  Speaker 1: his lawfare. But before we get to that, the Supreme
• 0:26
  Speaker 1: Court also heard arguments in the case over Donald Trump's
• 0:30
  Speaker 1: birthright citizenship order.
• 0:32
  Speaker 2: The Supreme Court.
• 0:34
  Speaker 1: Hearing the first set of Trump related arguments in the
• 0:37
  Speaker 1: second Trump presidency. Now, this case stem from the executive
• 0:41
  Speaker 1: order that President Trump issued on his first day in
• 0:44
  Speaker 1: office that we deny citizenship to children born on US
• 0:48
  Speaker 1: soil to parents who are in the country illegally or temporarily.
• 0:53
  Speaker 1: The executive order marks a major change to the provisions
• 0:56
  Speaker 1: of the Fourteenth Amendment that grant citizenship to people born
• 0:59
  Speaker 1: in the United States of America with just a couple
• 1:02
  Speaker 1: of exceptions. Immigrants rights groups and many liberal states sued
• 1:08
  Speaker 1: almost immediately to challenge the executive order of President Trump.
• 1:12
  Speaker 1: Federal judges have uniformally cast doubt on Trump's reading of
• 1:17
  Speaker 1: the citizenship cause, and three judges have blocked the order
• 1:20
  Speaker 1: from taking effect anywhere in the US, including US District
• 1:24
  Speaker 1: Judge John Kojinnar.
• 1:27
  Speaker 2: I've been on the.
• 1:27
  Speaker 1: Bench for over four decades, he said, I can't remember
• 1:31
  Speaker 1: another case where the question presented was as clear as
• 1:34
  Speaker 1: this one. This is a blatantly unconstitutional order, the judge
• 1:38
  Speaker 1: said at a hearing in his Seattle court room. Now,
• 1:41
  Speaker 1: the Supreme Court is taking up an emergency appeals filed
• 1:46
  Speaker 1: by the Trump administration, asking to be able to enforce
• 1:50
  Speaker 1: the executive order in most of the country at least
• 1:54
  Speaker 1: while the lawsuits over the order proceed Now, the constitutionality.
• 1:59
  Speaker 2: Of the order is not before the court just yet.
• 2:02
  Speaker 1: Instead, the justices are looking at potentially limiting the authority
• 2:06
  Speaker 1: of individual judges to issuing rulings that apply throughout the
• 2:10
  Speaker 1: entire country. These are known as nationwide or universal injunctions,
• 2:15
  Speaker 1: which I mentioned earlier. Now, Trump's Solicitor General wrapped up
• 2:19
  Speaker 1: his opening and his challenger stepped up. That's when Justice
• 2:24
  Speaker 1: Kavanaugh pressed with a series of questions about exactly how
• 2:28
  Speaker 1: the federal government might enforce Trump's order. Quote what do
• 2:32
  Speaker 1: hospitals do with a newborn? What the states do with
• 2:35
  Speaker 1: a newborn?
• 2:36
  Speaker 2: He said.
• 2:36
  Speaker 1: This solicitener General said they wouldn't necessarily do anything different,
• 2:40
  Speaker 1: but the government might figure out ways to reject documentation
• 2:45
  Speaker 1: with quote the wrong designation of citizenship. Kavanaugh continued to
• 2:50
  Speaker 1: press for clear answers, pointing out that the executive order
• 2:54
  Speaker 1: only gave the government about thirty days to develop a policy, saying, quote,
• 2:59
  Speaker 1: you think they can get it together in time.
• 3:02
  Speaker 2: Justice brown Jackson.
• 3:04
  Speaker 1: Appeared deeply skeptical of the Solicitor General's arguments as well, saying, quote,
• 3:09
  Speaker 1: your argument seems to turn our justice system, in my view,
• 3:13
  Speaker 1: at least into a catch me if you can, kind
• 3:15
  Speaker 1: of regime where everybody has to have a lawyer. Now,
• 3:19
  Speaker 1: the new Jersey Solicitor General stepped up to make his
• 3:22
  Speaker 1: case after the justices. Pepper the Solicitor General with questions.
• 3:26
  Speaker 1: He is arguing on behalf of the states that say
• 3:29
  Speaker 1: they'll lose millions of dollars in benefits available to US
• 3:32
  Speaker 1: children and also have to overhaul identification systems. He also
• 3:37
  Speaker 1: asserted in his opening that the post Civil War nation
• 3:42
  Speaker 1: wrote into our Constitution that cyszens the United States and
• 3:46
  Speaker 1: of these states would be one and the same without
• 3:50
  Speaker 1: variations across state lines. The new Jersey Attorney General told
• 3:54
  Speaker 1: the justices that judges should be able to issue orders
• 3:58
  Speaker 1: that affect the whole country, but only in narrow circumstances.
• 4:03
  Speaker 1: Roberts jumped on that last point, asking him to elaborate
• 4:06
  Speaker 1: on why they should only be used sparingly, a question
• 4:10
  Speaker 1: that could be a clue as to how the Chief
• 4:13
  Speaker 1: Justice Roberts is thinking about the issue now. Justice tried
• 4:17
  Speaker 1: to pin down the solicitor General's argument. Justice Kagan, by
• 4:20
  Speaker 1: the way, cut to the heart of the case by
• 4:22
  Speaker 1: asking the Solicitor General that if the Court concludes Trump's
• 4:27
  Speaker 1: order is illegal, how the nation's highest court could strike
• 4:31
  Speaker 1: down the measure under the administration's theory of court's limited power,
• 4:35
  Speaker 1: Saying this, does every single person who is affected by
• 4:40
  Speaker 1: this executive order have to bring their own suit Atlanta?
• 4:44
  Speaker 1: Kagan asked how long does it take? And the Solicitor
• 4:47
  Speaker 1: General tried to answer. Several of Kagan's colleagues, along with
• 4:51
  Speaker 1: the Justice, jumped in to say they didn't hear a
• 4:54
  Speaker 1: clear way the court could swiftly ensure the government could
• 4:57
  Speaker 1: not take unconstitutional action Roberts tried to help by jumping
• 5:02
  Speaker 1: in to note the High Court has moved fast in
• 5:05
  Speaker 1: the past, concluding the TikTok case in just one month.
• 5:10
  Speaker 1: The Solicitener General, are you going to answer Kagan by
• 5:13
  Speaker 1: saying there is no way to do this expeditiously? That
• 5:17
  Speaker 1: is what Cony Barrett asked, and Barrett continued by saying
• 5:21
  Speaker 1: this whether a class action lawsuit could be another way
• 5:25
  Speaker 1: for judges to issue a court order that could affect
• 5:28
  Speaker 1: more people. He said the administration would likely push back
• 5:31
  Speaker 1: on efforts of people to bind together for a class
• 5:35
  Speaker 1: action lawsuit, but that it would be another way for
• 5:38
  Speaker 1: cases to move forward. Justice Alito pointed out that multiple
• 5:43
  Speaker 1: states have also sued over the birthright citizenship order and
• 5:47
  Speaker 1: one broader victories. The Trump administration is also arguing that
• 5:52
  Speaker 1: states shouldn't have to be able to do that, but
• 5:55
  Speaker 1: the Solicitor General sticks to his point about the nationwide injunction,
• 5:59
  Speaker 1: saying they yield quote all these sorts of pathologies. Soto
• 6:04
  Speaker 1: my Oar returned how Trump's order could affect people's saying
• 6:07
  Speaker 1: it for some babies, it could render them stateless. Justices
• 6:13
  Speaker 1: Pepper Trump's Solicitor General with questions and oral arguments, arguing
• 6:17
  Speaker 1: first that the Solicitor General and the government's top attorney
• 6:21
  Speaker 1: before the Supreme Court saying, if you have a child
• 6:24
  Speaker 1: that is literally without a state to call their own,
• 6:28
  Speaker 1: what does that make them? Now, this is obviously a
• 6:31
  Speaker 1: very complicated issue. It's also an important one, and it's
• 6:36
  Speaker 1: one that deals with nationwide injunctions because they have become
• 6:40
  Speaker 1: especially frustrating for the Trump administration as opponents of the
• 6:44
  Speaker 1: president's policies have filed hundreds of lawsuits challenging his flurry
• 6:49
  Speaker 1: of executive orders.
• 6:50
  Speaker 2: Why are they doing this?
• 6:52
  Speaker 1: They're making it very clear, it's law fare, and they
• 6:55
  Speaker 1: want these judges in friendly districts and friendly courts in
• 6:59
  Speaker 1: liberal parts of America to do the nationwide injunctions to
• 7:03
  Speaker 1: stop everything that the president's doing. The argument that the
• 7:06
  Speaker 1: president's making, and many of those that were in the
• 7:09
  Speaker 1: courtroom on his behalf, is that he has the right
• 7:12
  Speaker 1: to be the president of the United States of America
• 7:14
  Speaker 1: and the right to executive orders, and every single one
• 7:17
  Speaker 1: of them should not be challenged and overturned by a
• 7:22
  Speaker 1: judge that is in a district. Now, President Trump pressed
• 7:26
  Speaker 1: for restrictions ahead of these arguments at the Supreme Court.
• 7:30
  Speaker 1: President Trump is weighing in and he said this granting
• 7:33
  Speaker 1: citizenship to people born here, long seen as a constitutional promise,
• 7:38
  Speaker 1: makes the country look stupid and like suckers. Now President
• 7:42
  Speaker 1: Trump's executive order at the heart of today's case really
• 7:45
  Speaker 1: aims at ending what he has described as a loophole
• 7:49
  Speaker 1: in birthright citizenship for children born to people in the
• 7:53
  Speaker 1: US illegally, something that many legal scholars are fighting back
• 7:57
  Speaker 1: saying would require amending the Constitution. This is going to
• 8:01
  Speaker 1: be a very important case moving forward. Now, if I'm
• 8:05
  Speaker 1: reading the tea leaves here from the Supreme Court, I
• 8:07
  Speaker 1: can tell you this. I think this is going to
• 8:10
  Speaker 1: be an uphill battle for the present. This conversation that's
• 8:14
  Speaker 1: extremely important, and that deals with the issue of these
• 8:17
  Speaker 1: activist judges cherry pickings certain things and going to liberal
• 8:22
  Speaker 1: courts making sure that nationwide injunctions come in on countless
• 8:27
  Speaker 1: executive orders. That brings me to my next guest, who
• 8:31
  Speaker 1: is the Attorney General of West Virginia, JB.
• 8:33
  Speaker 2: Mccusky.
• 8:34
  Speaker 1: He was in the Supreme Court and filed an amaricus
• 8:37
  Speaker 1: a brief along with the ACLJ about how important it
• 8:42
  Speaker 1: is that these nationwide injunctions from halfway across the country
• 8:46
  Speaker 1: by these district judges do not actually take away the
• 8:49
  Speaker 1: rights of the American people.
• 8:51
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• 10:46
  Speaker 2: The Supreme Court.
• 10:48
  Speaker 1: Had a very busy day on Thursday, and one of
• 10:51
  Speaker 1: the most consequential cases involving the Trump administration.
• 10:56
  Speaker 2: It was heard in front of the Supreme Court.
• 10:59
  Speaker 1: Now, my former roommate, you don't get to say this
• 11:01
  Speaker 1: every day, is also the Attorney General from West Virginia.
• 11:05
  Speaker 1: We were together actually on Capitol Hill. I'm staring at
• 11:08
  Speaker 1: the Supreme Court right now, and he was in the
• 11:12
  Speaker 1: Supreme Court today for this important, this.
• 11:15
  Speaker 2: Major case on judges power.
• 11:17
  Speaker 1: And I want to go to you, JB on this
• 11:20
  Speaker 1: so that you can explain how all this started. In essence,
• 11:25
  Speaker 1: you had judges that were making decisions that were covering
• 11:28
  Speaker 1: the entire country. And the argument is, maybe that's not
• 11:32
  Speaker 1: how it's supposed to be on these local levels or
• 11:34
  Speaker 1: these these smaller court battles, and this is what this
• 11:38
  Speaker 1: is all about.
• 11:39
  Speaker 3: Yeah, I think you what you just said there makes
• 11:41
  Speaker 3: a lot of sense. This is a national issue that
• 11:44
  Speaker 3: was to solve that was decided or attempted to be
• 11:47
  Speaker 3: decided by a district court judge. And so what happens,
• 11:50
  Speaker 3: and this has been happening a lot, especially very recently
• 11:54
  Speaker 3: within the last thirty years, and that's a bipartisant problem then,
• 11:57
  Speaker 3: is that district court judges are in joining presidential decrees
• 12:02
  Speaker 3: right and saying what the president has done is not
• 12:06
  Speaker 3: just illegal in my courtroom, but it's illegal in the
• 12:08
  Speaker 3: entire country. And our process is set up differently than that.
• 12:13
  Speaker 3: Our district court judges are supposed to hear cases that
• 12:16
  Speaker 3: are in front of them and make decisions for the
• 12:18
  Speaker 3: plaintiffs that are in front of them. Here, several interest
• 12:22
  Speaker 3: groups in several states sued in a I'm going to
• 12:25
  Speaker 3: just say a friendly jurisdiction, which is how this works,
• 12:28
  Speaker 3: as you find a judge that is ideologically aligned with
• 12:31
  Speaker 3: you and you get them to enjoin an entire action.
• 12:35
  Speaker 3: That happened in this case in New Jersey. And so
• 12:37
  Speaker 3: a New Jersey judge then decided for all other of
• 12:40
  Speaker 3: the six hundred district court judges and all of the
• 12:43
  Speaker 3: circuit judges, and ostensibly for the Supreme Court whether or
• 12:46
  Speaker 3: not a presidential order was constitutional. While we did not
• 12:51
  Speaker 3: get into the underlying facts of this case today, ben
• 12:54
  Speaker 3: what the Supreme Court was hearing, and what our brief
• 12:56
  Speaker 3: described was the reasons why this is both unconstitutional and
• 13:00
  Speaker 3: a bad idea. So, for one, both the history of
• 13:04
  Speaker 3: our courts as you look back into the courts of
• 13:07
  Speaker 3: Chancery in England, as well as Article three, which was
• 13:10
  Speaker 3: written to delineate the powers of our courts, indicate that
• 13:14
  Speaker 3: circuit judges do not have the authority to issue nationwide injunctions. Further,
• 13:20
  Speaker 3: our brief gets into the idea that there is a
• 13:22
  Speaker 3: remedy here, and the remedy is is that if you're
• 13:25
  Speaker 3: looking to have a district court make a decision for
• 13:29
  Speaker 3: a large number of people, you have to go through
• 13:32
  Speaker 3: what's called a Rule twenty three and create a class action,
• 13:35
  Speaker 3: so then the court knows who the plaintiffs are that
• 13:37
  Speaker 3: they're trying to address a problem for. And fourth, and
• 13:41
  Speaker 3: maybe most importantly is that district courts and our federal
• 13:46
  Speaker 3: court systems, they are life tenured for a reason, and
• 13:49
  Speaker 3: that is to eliminate the stench of politics from the
• 13:56
  Speaker 3: benches around the country. And when you do forum shopping
• 13:59
  Speaker 3: and you start to use these universal injunctions in these
• 14:02
  Speaker 3: sort of weaponized ways, what you then will find, I
• 14:06
  Speaker 3: believe and our brief delineates that the confidence that the
• 14:09
  Speaker 3: public has in the independence of our judiciary will go
• 14:13
  Speaker 3: down very quickly. And that is the single most important
• 14:17
  Speaker 3: branch for the public to have confidence in, because it
• 14:19
  Speaker 3: is their orders and it is their writings that tell
• 14:23
  Speaker 3: every American how the Constitution is being interpreted as it
• 14:27
  Speaker 3: relates to the laws that apply to them. So this
• 14:29
  Speaker 3: is a really big case. We feel really really good
• 14:32
  Speaker 3: about our briefing. The people in West Virginia joined with
• 14:36
  Speaker 3: a group called the American Center for Law and Justice
• 14:38
  Speaker 3: in this briefing, and we're very hopeful that the Court
• 14:42
  Speaker 3: will use our amicus to guide them into what I
• 14:45
  Speaker 3: believe is a proper decision, and that is the district
• 14:48
  Speaker 3: courts lack the ability to adjoin the entire country as
• 14:52
  Speaker 3: it relates to presidential executive orders.
• 14:54
  Speaker 1: So let's talk about the amicus brief and break that down.
• 14:58
  Speaker 1: The goal of an amicus brief, And people that are listening,
• 15:01
  Speaker 1: my guess with me is the Attorney General from West Virginia, JB.
• 15:03
  Speaker 2: Mccusky.
• 15:04
  Speaker 1: I want a dear friend of mine, former roommate, and were,
• 15:07
  Speaker 1: as I stare at literally at the Supreme Court right now,
• 15:09
  Speaker 1: you just left the Supreme Court where you guys filed
• 15:12
  Speaker 1: this amicus brief with the ACLJ. What is the goal
• 15:17
  Speaker 1: of an amicus brief for people that maybe don't understand
• 15:19
  Speaker 1: that terminology, maybe they've ever heard it before, And specifically,
• 15:23
  Speaker 1: what did you guys put in that amicus brief that
• 15:26
  Speaker 1: you're hoping that the justices will get from it and
• 15:29
  Speaker 1: read from it on this case.
• 15:31
  Speaker 3: Yeah, So, an amicus brief is in Layman's term, it's
• 15:33
  Speaker 3: called a friend of the court brief, and so what
• 15:36
  Speaker 3: its purpose is is to help the justices as they're
• 15:39
  Speaker 3: making their decision with parties who have an interest in
• 15:42
  Speaker 3: the outcome. And in West Virginia, the interest in this
• 15:44
  Speaker 3: outcome comes from this widespread, weaponized use of nationwide injunctions.
• 15:50
  Speaker 3: We just saw within the last week a nation a
• 15:53
  Speaker 3: wide injunction out of the state of Washington that will
• 15:56
  Speaker 3: stop President Trump's executive orders on the use of coal
• 15:59
  Speaker 3: and lower electricity rates for Americans and putting West Virginia
• 16:02
  Speaker 3: coal miners back to work today in order to meet
• 16:06
  Speaker 3: our nation's energy needs. And so for us, these nationwide injunctions,
• 16:09
  Speaker 3: when you're a small rural state, they are never going
• 16:12
  Speaker 3: to be the forum that gets shopped into right. They're
• 16:14
  Speaker 3: never going to ask real patriotic Americans like they are
• 16:18
  Speaker 3: in West Virginia to answer these questions. They're going to
• 16:20
  Speaker 3: go to places where it's a little different. And so
• 16:22
  Speaker 3: we have a huge interest in ensuring that the process
• 16:25
  Speaker 3: plays out in nationwide injunctions to make sure that these
• 16:29
  Speaker 3: the President's executive orders as they relate to the economy
• 16:32
  Speaker 3: and the people of West Virginia are upheld and if
• 16:35
  Speaker 3: they are found to be unconstitutional that they go through
• 16:38
  Speaker 3: the proper channels. And that is what our brief says.
• 16:41
  Speaker 3: Our brief says that it isn't that the plaintiffs don't
• 16:45
  Speaker 3: have any options. Our brief says the options that they
• 16:49
  Speaker 3: chose are not available to the court that made them.
• 16:51
  Speaker 3: So they needed to have gone through what's called a
• 16:53
  Speaker 3: rule twenty three, as I just said, and explain to
• 16:56
  Speaker 3: the court why they have a class of plaintiffs that
• 16:59
  Speaker 3: have a similar need for this same kind of relief,
• 17:03
  Speaker 3: and then the court can order that those people get
• 17:06
  Speaker 3: that relief. And then if another district court or another
• 17:09
  Speaker 3: circuit court comes to a contrary conclusion, then the Supreme
• 17:13
  Speaker 3: Court can use that. The Supreme Court's power generally comes
• 17:16
  Speaker 3: from when they are deciding between circuits that have a
• 17:20
  Speaker 3: different interpretation of the law. And in this instance, they
• 17:23
  Speaker 3: circumvented that entire process by getting one single district court
• 17:27
  Speaker 3: judge to speak for the entire country. And that is
• 17:30
  Speaker 3: not allowed under Article three. And it's a really bad
• 17:33
  Speaker 3: idea in terms of public confidence and the independence of
• 17:36
  Speaker 3: our judicial branch.
• 17:38
  Speaker 1: Is it fair to say that the mechanism that's being
• 17:42
  Speaker 1: used by the left to go and find these friendly
• 17:44
  Speaker 1: judges and friendly courts to do this. Is this a
• 17:48
  Speaker 1: version of lawfare where you say, we don't respect the people,
• 17:52
  Speaker 1: we don't respect their vote, we don't respect who they
• 17:55
  Speaker 1: chose as their leader, which this time happens to the
• 17:57
  Speaker 1: President Donald J.
• 17:58
  Speaker 2: Trump.
• 17:59
  Speaker 1: And so therefore we are going to use lawfair to
• 18:03
  Speaker 1: stop the will of the people and what they voted
• 18:06
  Speaker 1: for and what their leaders that they voted for, who
• 18:08
  Speaker 1: won in a free and fair election are trying to do.
• 18:11
  Speaker 3: Well. I hesitate to use the word lawfare here, Ben,
• 18:14
  Speaker 3: because we do the same thing occasionally when there's Democrats
• 18:17
  Speaker 3: in the White House. And it's not that we have
• 18:19
  Speaker 3: a problem with challenging federal government edicts. Right, We as
• 18:24
  Speaker 3: Republicans are constantly finding ways that the federal government is
• 18:28
  Speaker 3: overstepping its bounds, and we use the courts in order
• 18:31
  Speaker 3: to rain them in like in West Virginia versus EPA.
• 18:34
  Speaker 2: Right.
• 18:34
  Speaker 3: So it isn't that this is It isn't lawfare as
• 18:38
  Speaker 3: you describe it, because we need the option to be
• 18:40
  Speaker 3: able to do this too. It is the kind of lawfare,
• 18:43
  Speaker 3: right it is.
• 18:44
  Speaker 2: It is this.
• 18:46
  Speaker 3: Novel concept that you use a single friendly district court
• 18:50
  Speaker 3: to do what is supposed to be the job of
• 18:51
  Speaker 3: the entire judiciary. Right, there's a reason why our system
• 18:55
  Speaker 3: has set up the way that it is. And I
• 18:57
  Speaker 3: personally believe as an originalist that the the factual scenarios
• 19:01
  Speaker 3: surrounding the reason why somebody's asking for something shouldn't change
• 19:07
  Speaker 3: the fundamental role and the rules that surround our court.
• 19:10
  Speaker 3: And that was really in essence, the main part of
• 19:15
  Speaker 3: this argument is should we break the rules because this
• 19:19
  Speaker 3: is important and my personal opinion is is that is
• 19:23
  Speaker 3: not true. We should maintain the constitutionally granted powers that
• 19:29
  Speaker 3: exist in our district courts and allow the system as
• 19:32
  Speaker 3: it was created by our founders to work because it does.
• 19:36
  Speaker 1: What was the demeanor of the judges and what were
• 19:37
  Speaker 1: the main things they were honing in on as you
• 19:40
  Speaker 1: were in there listening to this. You were there for
• 19:42
  Speaker 1: about four hours waiting, and part of that's waiting time.
• 19:46
  Speaker 1: But what were their big questioning and could you read
• 19:50
  Speaker 1: into what you think the possible outcome could be here?
• 19:52
  Speaker 1: And what is best case scenario? What is fifty to
• 19:55
  Speaker 1: fifty for you know, conservatives on this one? What is
• 20:00
  Speaker 1: what does success draw or lowers look like?
• 20:02
  Speaker 3: Yeah, so the judges, this was a very long argument,
• 20:05
  Speaker 3: and for your listeners out there, if you ever want
• 20:07
  Speaker 3: to go to the Supreme Court, the seats are not
• 20:09
  Speaker 3: very comfortable, and so you know, by the end of it,
• 20:12
  Speaker 3: your dogs were marked pretty well. But the judges were
• 20:15
  Speaker 3: very serious because this is an issue that affects not
• 20:20
  Speaker 3: just the issue that was in front of them, but
• 20:21
  Speaker 3: as you heard, it has great historical significance and enormous
• 20:26
  Speaker 3: future looking significance as well. They understand that the answer
• 20:30
  Speaker 3: to this question and the ruling in this case will
• 20:33
  Speaker 3: likely have an enormous effect on how the judiciary operates
• 20:37
  Speaker 3: going forward for a very very long time. And so
• 20:40
  Speaker 3: they were asking a lot of questions and I don't
• 20:43
  Speaker 3: know how frequently this happens, but about the historical beginnings
• 20:48
  Speaker 3: of Article three. You know, what were the British courts
• 20:52
  Speaker 3: that we were modeling our courts after. What were they doing,
• 20:55
  Speaker 3: you know? And so we could sort of get a
• 20:57
  Speaker 3: look into the mind of the framers and the founders
• 21:00
  Speaker 3: is they were designing our courts. They were obviously looking
• 21:03
  Speaker 3: to their former homeland to get an archetype and so
• 21:08
  Speaker 3: they were looking a lot at that, and the other
• 21:10
  Speaker 3: questions really centered around this idea of what happens in
• 21:16
  Speaker 3: either event, right, So there were a lot of questions
• 21:18
  Speaker 3: that were like, if I agree with you, what do
• 21:23
  Speaker 3: you think will happen? And they asked that to both sides. Right, So,
• 21:26
  Speaker 3: if we decide there are no universal injunctions government, what
• 21:30
  Speaker 3: happens to the folks who would be affected by the
• 21:33
  Speaker 3: executive order during the pendency of the time where it
• 21:36
  Speaker 3: would get fully breathed in all the circuits and all
• 21:38
  Speaker 3: the districts, which I think matters. I think that's an
• 21:41
  Speaker 3: incredibly important question because the answer to that is there
• 21:45
  Speaker 3: will be lots of other lawsuits in lots of other places,
• 21:47
  Speaker 3: and they might win some and they might lose some.
• 21:50
  Speaker 3: And so that's when you start to get the true
• 21:54
  Speaker 3: confluence of what is the question that the circuit courts
• 21:58
  Speaker 3: are answering differently? And when do we need to step
• 22:01
  Speaker 3: in to make this decision because the Supreme Court creates
• 22:04
  Speaker 3: precedent for the entire country. The other main questions I
• 22:08
  Speaker 3: feel like we're the most important were why do you
• 22:12
  Speaker 3: believe that a district court has the ability to enjoin
• 22:18
  Speaker 3: an entire country? And they were obviously answered differently by
• 22:22
  Speaker 3: the two different parties, but the Court was really trying
• 22:25
  Speaker 3: to There were a lot of very functional questions I
• 22:27
  Speaker 3: think that were enabling them to get to their conclusion.
• 22:30
  Speaker 3: Is is it an unfair result to use the process
• 22:34
  Speaker 3: as it was delineated in the Constitution. It's always the
• 22:37
  Speaker 3: most fair to do something properly, and I don't think
• 22:40
  Speaker 3: that there is an unfair result if the court says
• 22:43
  Speaker 3: to the complaining parties that, look, you have a gripe here,
• 22:48
  Speaker 3: but you got to do it the right way. The
• 22:50
  Speaker 3: second part of your question, Ben, was what does victory
• 22:53
  Speaker 3: look like. Victory is the court saying to all of
• 22:58
  Speaker 3: the district courts that nation wide injunctions are not an
• 23:01
  Speaker 3: appropriate thing for district courts to be doing, and eliminating
• 23:05
  Speaker 3: that function of district courts completely. We don't believe that
• 23:08
  Speaker 3: that's constitutional. A half victory, and I hate to talk
• 23:12
  Speaker 3: about half victories, would be a ruling that says something like,
• 23:16
  Speaker 3: we believe that nationwide injunction should be extremely disfavored, and
• 23:20
  Speaker 3: here is a test to determine whether or not a
• 23:23
  Speaker 3: court can issue a nationwide injunction. At the district court, though,
• 23:27
  Speaker 3: give them a roadmap for the questions they need to
• 23:30
  Speaker 3: answer as to whether or not they can do it
• 23:32
  Speaker 3: or not, and a loss, a full loss is just
• 23:37
  Speaker 3: nationwide injunctions are found to be an appropriate action to
• 23:43
  Speaker 3: take by a district court, and we think that will
• 23:45
  Speaker 3: result in a little bit of judicial chaos.
• 23:48
  Speaker 1: My guess with me the Attorney General from West Virginia,
• 23:51
  Speaker 1: J B. McCuskey, JB. Final question for you is timing
• 23:55
  Speaker 1: on this. Is this one of those rulings that we
• 23:57
  Speaker 1: could probably hear saying quickly from the Supreme Court or
• 24:00
  Speaker 1: just take weeks or months? And can you read into
• 24:03
  Speaker 1: how quickly they respond and if that good or bad
• 24:06
  Speaker 1: news a lot more time they take, is that better
• 24:08
  Speaker 1: for us or the last time they take probably better
• 24:10
  Speaker 1: for us? Read into that for people that don't understand
• 24:12
  Speaker 1: exactly how the court works.
• 24:14
  Speaker 3: Yeah, So I would say that this will likely come
• 24:17
  Speaker 3: out quickly, and I think the faster it comes out,
• 24:20
  Speaker 3: the more likely it is that we have been successful.
• 24:22
  Speaker 2: So weeks you're thinking here, Yeah.
• 24:24
  Speaker 3: I would think that a couple of weeks would be
• 24:26
  Speaker 3: a very reasonable amount of time for them to decide
• 24:29
  Speaker 3: this because there is a very significant interest of time
• 24:32
  Speaker 3: here and the court understands that. And the fact that
• 24:36
  Speaker 3: they heard this case on an emergency basis indicates that
• 24:39
  Speaker 3: they're probably going to issue an opinion in the same
• 24:41
  Speaker 3: kind of hurried stance.
• 24:45
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• 24:48
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• 24:51
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• 24:53
  Speaker 2: We'll see you back here tomorrow.