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Supreme Showdown-Can One Court Stop a President? · The Ben Ferguson Podcast

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  Speaker 1: He said, sure, would you like to rest? He said,
• 0:04
  Speaker 1: what do you mean rest? I've been wrestling on the plane.
• 0:06
  Speaker 1: I don't want to rest. We don't have to rest
• 0:07
  Speaker 1: for He was thinking about Biden to come, okay, Biden.
• 0:10
  Speaker 1: Biden would have rested the entire trip. He wouldn't. First
• 0:13
  Speaker 1: of all, he wouldn't have made the trip, but if
• 0:15
  Speaker 1: he landed, he would have been rested for about five
• 0:17
  Speaker 1: days before he had the first meeting. I said, no,
• 0:19
  Speaker 1: let's go have the meeting because I want to find
• 0:21
  Speaker 1: out what's going on over here.
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  Speaker 2: If you're listening to the forty seven Morning Update with
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  Speaker 2: Ben ferguson.
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  Speaker 3: Good Friday morning, welcome to a special edition of the
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  Speaker 3: forty seven Morning Update where we are live at the
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  Speaker 3: Supreme Court as a Supreme Court listen to oral arguments
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  Speaker 3: on Thursday about the power of district judges to issue
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  Speaker 3: nationwide injunctions. It's what many have referred to his law fare,
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  Speaker 3: where a district judge tries to take away all the
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  Speaker 3: power of the president through issuing a nationwide injunction. During
• 0:53
  Speaker 3: the hearing, Chief Justice John Roberts admonished Justice out of
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  Speaker 3: my oar for continuing to interrupt the US list General,
• 1:01
  Speaker 3: and to say it was heated for Supreme Court standards
• 1:04
  Speaker 3: would be an understatement. But the big question now is
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  Speaker 3: this what is going to happen and will the Supreme
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  Speaker 3: Court defend President Trump's executive order power or will they
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  Speaker 3: allow the judges to go rogue and to stop his agenda.
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  Speaker 3: Joining me to talk about this is a dear friend
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  Speaker 3: of mine, the Attorney General from West Virginia, who's actually
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  Speaker 3: my former roommate. He was in the court as they
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  Speaker 3: filed an amicust brief on behalf of the people of
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  Speaker 3: West Virginia, and I want you to hear what he
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  Speaker 3: said about the entire day at the Supreme Court that
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  Speaker 3: can affect everyone in this country. It's the forty seven
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  Speaker 3: Morning Update and it starts right now.
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  Speaker 2: First up, story number one.
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  Speaker 3: The Supreme Court had a very busy day on Thursday,
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  Speaker 3: and one of the most consequential cases involving the Trump
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  Speaker 3: administration was heard in front of the Supreme Court. Now, roommate,
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  Speaker 3: you don't get to say this every day. Is also
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  Speaker 3: the Attorney General from West Virginia. We were together actually
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  Speaker 3: on Capitol Hill. I'm staring at the Supreme Court right now,
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  Speaker 3: and he was in the Supreme Court today for this important,
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  Speaker 3: this major case on judges power. And I want to
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  Speaker 3: go to you, JB on this so that you can
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  Speaker 3: explain how all this started. In essence, you had judges
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  Speaker 3: that were making decisions that were covering the entire country.
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  Speaker 3: And the argument is, maybe that's not how it's supposed
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  Speaker 3: to be on these local levels or these these smaller
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  Speaker 3: court battles, And this is what this is all about.
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  Speaker 4: Yeah, I think you what you just said there makes
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  Speaker 4: a lot of sense. This is a national issue. That
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  Speaker 4: was the soul that was decided or attempted to be
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  Speaker 4: decided by a district court judge. And so what happens,
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  Speaker 4: and this has been happening a lot, especially very recently
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  Speaker 4: within the last thirty years, and it's a bipartisan problem then,
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  Speaker 4: is that district court judges are enjoining presidential decrees right
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  Speaker 4: and saying what the president has done is not just
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  Speaker 4: illegal in my courtroom, but it's illegal in the entire country.
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  Speaker 4: And our process is set up differently than that. Our
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  Speaker 4: district court judges are supposed to hear cases that are
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  Speaker 4: in front of them and make decisions for the plaintiffs
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  Speaker 4: that are in front of them. Here several interest groups
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  Speaker 4: in several states sued in a I'm going to just
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  Speaker 4: say a friendly jurisdiction, which is how this works, as
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  Speaker 4: you find a judge that is ideologically aligned with you,
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  Speaker 4: and you get them to enjoin an entire action. That
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  Speaker 4: happened in this case in New Jersey, and so a
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  Speaker 4: New Jersey judge then decided, for all other of the
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  Speaker 4: six hundred district court judges and all of the circuit judges,
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  Speaker 4: and ostensibly for the Supreme Court whether or not a
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  Speaker 4: presidential order was constitutional. While we did not get into
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  Speaker 4: the underlying facts of this case today, ben what the
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  Speaker 4: Supreme Court was hearing, and what our brief described was
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  Speaker 4: the reasons why this is both unconstitutional and a bad idea. So,
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  Speaker 4: for one, both the history of our courts as you
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  Speaker 4: look back into the courts of Chancery in England, as
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  Speaker 4: well as Article three, which was written to delineate the
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  Speaker 4: powers of our courts, indicate that circuit judges do not
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  Speaker 4: have the authority to issue nationwide injunctions. Further, our brief
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  Speaker 4: gets into the idea that there is a remedy here,
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  Speaker 4: and the remedy is is that if you're looking to
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  Speaker 4: have a district court make a decision for a large
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  Speaker 4: number of people, you have to go through what's called
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  Speaker 4: a rule twenty three and create a class action, so
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  Speaker 4: then the court knows who the plaintiffs are that they're
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  Speaker 4: trying to address a problem for. And fourth, and maybe
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  Speaker 4: most importantly, is that district courts and our federal court systems,
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  Speaker 4: they are life tenured for a reason, and that is
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  Speaker 4: to eliminate the stench of politics from the benches around
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  Speaker 4: the country. And when you do forum shopping and you
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  Speaker 4: start to use these universal injunctions in these sort of
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  Speaker 4: weaponized ways, what you then will find, I believe and
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  Speaker 4: our brief delineates that the confidence that the public has
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  Speaker 4: in the independence of our judiciary will go down very quickly.
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  Speaker 4: And that is the single most important branch for the
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  Speaker 4: public to have confidence in, because it is their orders
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  Speaker 4: and it is their writings that tell every American how
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  Speaker 4: the Constitution is being interpreted as it relates to the
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  Speaker 4: laws that apply to them. So this is a really
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  Speaker 4: big case. We feel really really good about our briefing.
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  Speaker 4: The people of West Virginia joined with a group called
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  Speaker 4: the American Center for Law and Justice in this briefing
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  Speaker 4: and we're very hopeful that the Court will use our
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  Speaker 4: amicus to guide them into what I believe is a
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  Speaker 4: proper decision, and that is the district courts lack the
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  Speaker 4: ability to adjoin the entire country as it relates to
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  Speaker 4: presidential executive orders.
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  Speaker 3: So let's talk about the amicus brief and break that down.
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  Speaker 3: The goal of an amazon gus brief, And people that
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  Speaker 3: are listening, My guest with me is the Attorney General
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  Speaker 3: from West Virginia, JB. McCuskey. I want a dear friend
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  Speaker 3: of mine, former roommate, and we are as I stare
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  Speaker 3: at literally at the Supreme Court right now. You just
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  Speaker 3: left the Supreme Court where you guys filed this amicus
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  Speaker 3: brief with the ACLJ. What is the goal of an
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  Speaker 3: amicus brief for people that maybe don't understand that terminology,
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  Speaker 3: maybe they've ever heard it before, And specifically, what did
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  Speaker 3: you guys put in that amicus brief that you're hoping
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  Speaker 3: that the justices will get from it and read from
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  Speaker 3: it on this case.
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  Speaker 4: Yeah, So an amicus brief is in layman's term, it's
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  Speaker 4: called a friend of the court brief, And so what
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  Speaker 4: its purpose is is to help the justices as they're
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  Speaker 4: making their decision with parties who have an interest in
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  Speaker 4: the outcome. And in West Virginia, the interest in this
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  Speaker 4: outcome comes from the widespread weaponized use of nationwide injunctions.
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  Speaker 4: We just saw within the last week a nation wide
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  Speaker 4: injunction out of the state of Washington that will stop
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  Speaker 4: President Trump's executive orders on the use of coal and
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  Speaker 4: lowering electricity rates for Americans and putting West Virginia coal
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  Speaker 4: miners back to work today in order to meet our
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  Speaker 4: nation's energy needs. And so for us, these nationwide injunctions,
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  Speaker 4: when you're a small rural state, are never going to
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  Speaker 4: be the forum that gets shopped into right. They're never
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  Speaker 4: going to ask real patriotic Americans like they are in
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  Speaker 4: West Virginia to answer these questions. They're going to go
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  Speaker 4: to places where it's a little different. And so we
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  Speaker 4: have a huge interest in ensuring that the process plays
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  Speaker 4: out in nationwide injunctions to make sure that these the
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  Speaker 4: president's executive orders as they relate to the economy and
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  Speaker 4: the people of West Virginia are upheld and if they
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  Speaker 4: are found to be unconstitutional, that they go through the
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  Speaker 4: proper channels. And that is what our brief says. Our
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  Speaker 4: brief says that it isn't that the plaintiffs don't have
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  Speaker 4: any options. Our brief says the options that they chose
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  Speaker 4: are not available to the court that made them. So
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  Speaker 4: they needed to have gone through what's called a rule
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  Speaker 4: twenty three, as I just said, and explain to the
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  Speaker 4: court why they have a class of plaintiffs that have
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  Speaker 4: a similar need for this same kind of relief, and
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  Speaker 4: then the court can order that those people get that relief.
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  Speaker 4: And then if another district court or another circuit court
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  Speaker 4: comes to a contrary conclusion, then the Supreme Court can
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  Speaker 4: use that. The Supreme Court's power generally comes from when
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  Speaker 4: they are deciding between circuits that have a different interpretation
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  Speaker 4: of the law. And in this instance, they circumvented that
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  Speaker 4: entire process by getting one single district court judge to
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  Speaker 4: speak for the entire country. And that is not allowed
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  Speaker 4: under Article three. And it's a really bad idea in
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  Speaker 4: terms of public confidence and the independence of our judicial branch.
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  Speaker 3: Is it fair to say that the mechanism that's being
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  Speaker 3: used by the left to go and find these friendly
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  Speaker 3: judges and friendly courts to do this, is this a
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  Speaker 3: version of lawfare? Where you say, we don't respect the people,
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  Speaker 3: we don't respect their vote, we don't respect who they
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  Speaker 3: chose as their leader, which this time happens to be
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  Speaker 3: President Donald J. Trump. And so we are going to
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  Speaker 3: use lawfair to stop the will of the people and
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  Speaker 3: what they voted for, and what their leaders that they
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  Speaker 3: voted for, who won in a free and fair election,
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  Speaker 3: are trying to do.
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  Speaker 1: Well.
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  Speaker 4: I hesitate to use the word lawfare here, Ben, because
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  Speaker 4: we do the same thing occasionally when there's Democrats in
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  Speaker 4: the White House. And it's not that we have a
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  Speaker 4: problem with challenging federal government edicts. Right, We as Republicans
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  Speaker 4: are are constantly finding ways that the federal government is
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  Speaker 4: overstepping its bounds, and we use the courts in order
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  Speaker 4: to rain them in like in West Virginia versus EPA.
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  Speaker 1: Right.
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  Speaker 4: So it isn't that this is It isn't lawfare as
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  Speaker 4: you describe it, because we need the option to be
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  Speaker 4: able to do this too. It is the kind of lawfare,
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  Speaker 4: right it is.
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  Speaker 1: It is this.
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  Speaker 4: This novel concept that you use a single friendly district
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  Speaker 4: court to do what is supposed to be the job
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  Speaker 4: of the entire judiciary.
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  Speaker 1: Right.
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  Speaker 4: There's a reason why our system has set up the
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  Speaker 4: way that it is. And I personally believe as an
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  Speaker 4: originalist that the actual scenarios surrounding the reason why somebody's
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  Speaker 4: asking for something shouldn't change the fundamental role and the
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  Speaker 4: rules that surround our court. And that was really in essence,
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  Speaker 4: the main part of this argument is should we break
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  Speaker 4: the rules because this is important and my personal opinion
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  Speaker 4: is is that is not true. We should maintain the
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  Speaker 4: constitutionally granted powers that exist in our district courts and
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  Speaker 4: allow the system as it was created by our founders
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  Speaker 4: to work because it does.
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  Speaker 3: What was the demeanor of the judges and what were
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  Speaker 3: the main things they were honing in on as you
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  Speaker 3: were in there listening to this, you are there for
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  Speaker 3: about four hours waiting, and part of that's waiting time.
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  Speaker 3: But what were their big question and could you read
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  Speaker 3: into what you think the possible outcome could be here?
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  Speaker 3: And what is best case scenario? What is fifty to
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  Speaker 3: fifty for you know conservatives on this one, what is success,
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  Speaker 3: draw or lose look like?
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  Speaker 1: Yeah?
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  Speaker 4: So the judges this was a very long argument and
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  Speaker 4: for your listeners out there, if you ever want to
• 11:07
  Speaker 4: go to the Supreme Court, the seats are not very comfortable,
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  Speaker 4: and so you know, by the end of it, your
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  Speaker 4: dogs were marked the pretty well. But the judges were
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  Speaker 4: very serious because this is an issue that affects not
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  Speaker 4: just the issue that was in front of them, but
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  Speaker 4: as you heard, it has great historical significance and enormous
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  Speaker 4: future looking significance as well. They understand that the answer
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  Speaker 4: to this question and the ruling in this case will
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  Speaker 4: likely have an enormous effect on how the judiciary operates
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  Speaker 4: going forward for a very very long time. And so
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  Speaker 4: they were asking a lot of questions. And I don't
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  Speaker 4: know how frequently this happens, but about the historical beginnings
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  Speaker 4: of Article three, you know, what were the British courts
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  Speaker 4: that we were modeling our courts after. What were they doing,
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  Speaker 4: you know, And so we could sort of get a
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  Speaker 4: look into the mind of the framers and the fos
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  Speaker 4: is they were designing our courts. They were obviously looking
• 12:03
  Speaker 4: to their former homeland to get an archetype and so
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  Speaker 4: they were looking a lot at that, and the other
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  Speaker 4: questions really centered around this idea of what happens in
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  Speaker 4: either event, right, So there were a lot of questions
• 12:18
  Speaker 4: that were like if I agree with you, what do
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  Speaker 4: you think will happen? And they asked that to both sides, right,
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  Speaker 4: So if we decide there are no universal injunctions government,
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  Speaker 4: what happens to the folks who would be affected by
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  Speaker 4: the executive order during the pendency of the time where
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  Speaker 4: it would get fully breathed in all the circuits and
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  Speaker 4: all the districts, which I think matters. I think that's
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  Speaker 4: an incredibly important question because the answer to that is
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  Speaker 4: there will be lots of other lawsuits in lots of
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  Speaker 4: other places, and they might win some and they might
• 12:48
  Speaker 4: lose some. And so that's when you start to get
• 12:52
  Speaker 4: the true confluence of what is the question that the
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  Speaker 4: circuit courts are answering? Differently? Do we need to step
• 13:00
  Speaker 4: in to make this decision because the Supreme Court creates
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  Speaker 4: precedent for the entire country. The other main questions I
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  Speaker 4: feel like we're the most important were why do you
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  Speaker 4: believe that a district court has the ability to enjoin
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  Speaker 4: an entire country? And they were obviously answered differently by
• 13:21
  Speaker 4: the two different parties, but the court was really trying
• 13:24
  Speaker 4: to There were a lot of very functional questions I
• 13:27
  Speaker 4: think that were enabling them to get to their conclusion,
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  Speaker 4: is is it an unfair result to use the process
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  Speaker 4: as it was delineated in the Constitution. It's always the
• 13:36
  Speaker 4: most fair to do something properly, and I don't think
• 13:39
  Speaker 4: that there is an unfair result if the court says
• 13:43
  Speaker 4: to the complaining parties that, look, you have a gripe here,
• 13:48
  Speaker 4: but you got to do it the right way. The
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  Speaker 4: second part of your question, Ben, was what does victory
• 13:52
  Speaker 4: look like. Victory is the court saying to all of
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  Speaker 4: the district courts that nationwide and junctions are not an
• 14:01
  Speaker 4: appropriate thing for district courts to be doing, and eliminating
• 14:04
  Speaker 4: that function of district courts completely. We don't believe that
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  Speaker 4: that's constitutional. A half victory, and I hate to talk
• 14:11
  Speaker 4: about half victories, would be a ruling that says something like,
• 14:15
  Speaker 4: we believe that nationwide injunction should be extremely disfavored. And
• 14:20
  Speaker 4: here is a test to determine whether or not a
• 14:23
  Speaker 4: court can issue a nationwide injunction at the district court level.
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  Speaker 4: Give them a roadmap for the questions they need to
• 14:29
  Speaker 4: answer as to whether or not they can do it
• 14:32
  Speaker 4: or not. And a loss, a full loss, is just
• 14:37
  Speaker 4: nationwide injunctions are found to be an appropriate action to
• 14:42
  Speaker 4: take by a district court, and we think that will
• 14:45
  Speaker 4: result in a little bit of judicial chaos.
• 14:48
  Speaker 3: My guests with me the Attorney General from West Virginia,
• 14:50
  Speaker 3: j B. McCuskey, JB. Final question for you is timing
• 14:54
  Speaker 3: on this. Is this one of those rulings that we
• 14:57
  Speaker 3: could probably hear saying quickly from the Supreme Court or
• 15:00
  Speaker 3: weeks or months? And can you read into how quickly
• 15:04
  Speaker 3: they respond and if is that good or bad news?
• 15:06
  Speaker 3: A lot more time they take, is that better for
• 15:08
  Speaker 3: us or the last time they take probably better for us?
• 15:10
  Speaker 3: Read into that for people that don't understand exactly how
• 15:12
  Speaker 3: the court works.
• 15:13
  Speaker 4: Yeah, So I would say that this will likely come
• 15:16
  Speaker 4: out quickly, and I think the faster it comes out,
• 15:19
  Speaker 4: the more likely it is that we have been successful.
• 15:21
  Speaker 3: So weeks you're thinking here, Yeah.
• 15:24
  Speaker 4: I would think that a couple of weeks would be
• 15:26
  Speaker 4: a very reasonable amount of time for them to decide this,
• 15:29
  Speaker 4: because there is a very significant interest of time here
• 15:33
  Speaker 4: and the court understands that, and the fact that they
• 15:36
  Speaker 4: heard this case on an emergency basis indicates that they're
• 15:38
  Speaker 4: probably going to issue an opinion in the same kind
• 15:41
  Speaker 4: of hurried.
• 15:44
  Speaker 3: Stance Yeah, it's an incredible case. I'm glad that you're
• 15:47
  Speaker 3: in your position as the Attorney General West Virginia. I'm
• 15:50
  Speaker 3: glad that you guys are getting to work with the
• 15:51
  Speaker 3: American Serve for Law and Justice on this and filing this.
• 15:54
  Speaker 3: We're going to keep covering it. We'll let you know
• 15:56
  Speaker 3: when this ruling comes down. Always a pleasure, my friend.
• 15:59
  Speaker 3: Good chat with you. Glad to have me.
• 16:01
  Speaker 4: It was great to see you this week too, buddy,
• 16:03
  Speaker 4: have a great day.
• 16:04
  Speaker 2: Thank you for listening to the forty seven Morning Update
• 16:06
  Speaker 2: with Ben Ferguson. Please make sure you hit subscribe wherever
• 16:11
  Speaker 2: you're listening to this podcast right now and for more
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  Speaker 2: and we will see you back here tomorrow